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Federal Judiciary

: California Appellate Report

Balsam v. Trancos (Cal. Ct. App. - Feb. 24, 2012)

By Shaun Martin

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I'm happy that the Court of Appeal affirms here. Defendant's a spammer. It sends out (at minimum) millions of e-mails a month. Glad to see 'em found liable. And, yes, this benefits an attorney who focuses on these type of cases and a representative plaintiff who isn't really injured. But I'm okay with that. We're paying 'em as private attorneys general so we don't have to enforce the statute ourselves. It's enforcement on the cheap, at least as far as tax dollars go. Plus, plaintiff and his counsel are hardly getting rich; the attorney obtains a fee award of less than $82,000 for a case that has to go to trial against a defendant who's constantly trying to hide his identity and location. Seems more than fair to me.

I can also understand why the Court of Appeal doesn't hold the CEO personally liable. But here I'm less psyched about the result. The CEO runs numerous defendants who do nothing but send out a practically infinite amount of spam. He knows enough to try desperately to hide what he's doing and his involvement. I'm pretty confident he knows that he's doing something illegal and hiding behind shell companies while he does it. The Court of Appeal nonetheless says "there's no evidence" that the CEO knew that what his companies were doing was illegal. I guess that's true, if by "no evidence" we mean "no evidence that the CEO hasn't shredded, and as long as the CEO testifies he didn't know, we can't disprove his completely self-interested assertion." Does the CEO have a story on why he sends out spam like it's going out of style and why his "security" concerns made him fake virtually everything associated with his businesses? Sure. But I don't buy it. For a second.

This business thrives on not being found, and once it is, simply folding up shop and doing the exact same thing under a different name. I know it. You know it. And I'm darn sure the CEO knows it.

So this case adds some value in marginally spanking the defendant. But given the holding on individual liability, it's nonetheless not a serious advance. No reason not to do it again if all that happens is that you have to spend $100 to reincorporate under a different name.

Full post as published by California Appellate Report on February 27, 2012 (boomark / email).

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