Lexis Nexis - Case Brief

Not a Lexis Advance subscriber? Try it out for free.

Law School Case Brief

Gordon v. Virtumundo, Inc. - 575 F.3d 1040 (9th Cir. 2009)


A circuit court of appeals reviews a district court's grant of summary judgment de novo, and may affirm on any basis supported by the record. Its review is governed by the same standard used by the trial court under Fed. R. Civ. P. 56. Viewing the evidence in the light most favorable to the nonmoving party, the court of appeals must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.


Plaintiff James S. Gordon, Jr. and his company, Omni Innovations, LLC ("Omni"), filed a lawsuit in federal district court against Virtumundo, Inc., Adknowledge, Inc., and Scott Lynn, the sole shareholder of both companies, seeking injunctive relief and significant damages under the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, 15 U.S.C.S. § 7701 et seq. Gordon alleged that defendants, who were in the online marketing business and widely transmitted e-mail advertisements and solicitations to potential consumers on behalf of third-party clients, sent thousands of commercial e-mails (spam) to e-mail accounts hosted through his internet domain. Defendants filed a motion for summary judgment, which the district granted based on the dense record developed through substantial discovery. Gordon appealed.


Was summary judgment proper?




The court affirmed the district court's judgment. The court agreed with the district court that Gordon lacked standing to bring a private action under the CAN-SPAM Act. While Congress did not intend that standing be limited to fee-for-service operations, it did intend to exclude plaintiffs who, despite certain identifying characteristics, did not provide the actual, bona fide service of a legitimate internet access operation. Providing e-mail accounts was not alone sufficient to make Gordon an internet access service provider as defined in 15 U.S.C.S. § 7702(11) and 47 U.S.C.S. § 231(e)(4).

Access the full text case Not a Lexis Advance subscriber? Try it out for free.
Be Sure You're Prepared for Class