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Spamhaus is on the move...Ditto e360insight |
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Friday, October 27 2006 @ 02:14 AM EDT
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Spamhaus has a new attorney, and yesterday the new firm, Jenner & Block, filed three motions: It appears it was just in the nick of time too. Plaintiff e360insight filed on October 24th a Certificate of Service [PDF], evidencing that it served defendants with a copy of a Writ of Execution, meaning they have asked the court to get the marshall to execute the default judgment, so they can collect their $11 million. Now, as it happens, they know there is an appeal lodged, so ... well, I'll just say I don't think it will fly. But lawyers file things they think might not work, because, hey, you never know, and they've done pretty well so far. But Spamhaus tells the court that it does no business in Illinois, being a UK company. If that is so, where is the Illinois marshall going to go to get $11 million? If Illinois is like other states I'm more familiar with, it can't touch assets outside the state with an Illinois writ of execution. So it's a bit puzzling to me why they are doing that, unless perhaps they think or know that there are assets in the state.
Each of Spamhaus's filings includes words to this effect in a footnote on the opening page:
Defendant expressly objects to this Court's jurisdiction over the Spamhaus Project because it is based solely in the United Kingdom and does not conduct or transact business in Illinois. Moreover, Defendant reserves its arguments based on Plaintiff's failure to properly effect service of process. These objections are made notwithstanding Defendant's filing of this motion, and had previously been raised in the Notice of Removal and the Answer that was withdrawn with leave of this Court. Now, a few more details. The Motion to Quash Citation to Discover Assets has to do with e360insight having commanded that a Spamhaus person show up in Illinois and bring documents relating to the project's assets. The motion to quash says there are no Illinois Spamhaus folks and the court lacks personal jurisdiction over Spamhaus's UK people, the project being based solely in the UK. If the court doesn't quash, they ask for a briefing schedule and a protective order. The motion to stay is asking for a stay of the earlier default judgment until the appeal can be heard. It acknowledges that the court has subject matter jurisdiction, as opposed to personal. Now, to explain, using as ever my handy legal dictionary: JURISDICTION - the power to hear and determine a case.... This power may be established and described with reference to particular subjects or to parties who fall into a particular category. In addition to the power to adjudicate, a valid exercise of jurisdiction requires fair notice and an opportunity for the affected parties to be heard. Without jurisdiction, a court's judgment is void. A court must have both subject matter jurisdiction and personal jurisdiction... Personal jurisdiction, then, is whether they can subpoena *you* as a person and make you show up; subject matter is whether the court can rule on the matter presented, the type of case. If it is an Illinois court, and the defendant lives in the UK, unless the defendant has more than minimal contacts with Illinois, the court lacks personal jurisdiction. e360insight will have to demonstrate, assuming this court is willing to go into all this, that Spamhaus has that kind of Illinois presence. Spamhaus is here arguing that the court has subject matter jurisdiction, but it lacks personal, not only because Spamhaus is a UK company, but also because Spamhaus wasn't properly served and it never had a chance to be properly heard. Here's an interesting detail I haven't seen mentioned in the media. When Spamhaus filed its Notice of Removal, back in July, moving the case to federal court, it "maintained that service had not been perfected against it. Further, Defendant filed an Answer that same day, expressly asserting its defenses based on a lack of personal jurisdiction and insufficient service of process." I certainly read media reports saying that Spamhaus somehow neglected to mention the lack of personal jurisdiction. That turns out not to be so, evidently. Then when the prior attorney was allowed to leave and the new firm took over, it also preserved those objections in the Notice of Appeal filed in the Court of Appeals for the Seventh Circuit. Those same objections are now before this lower court in Spamhaus's Motion to Vacate the Entry of Default Judgment, based on Rule 60(b). Spamhaus therefore asks the court to enter a stay pending the appeal and also pending its own ruling on the new Motion to Vacate. The Motion to Vacate provides a little more information. In it we learn that the deadline to file the Notice of Appeal was October 13th. That's the very day that Spamhaus retained the new law firm. The Notice was timely filed to preserve the appeal of the default judgment. But the lower court, Spamhaus argues, with cases to support its position, still has the authority to grant a motion to vacate its own judgment. The briefs are not even filed yet in the appellate court, so there is time to make that moot. The new firm has been on the job only about two weeks, they point out, so they're hitting the ground running, but they're still not fully up to speed, because for one thing they haven't been able to get transcripts yet. They're ordered but not yet available. Still they believe that the Federal Rules of Civil Procedure 60(b)(1), (4), and (6) provide three separate and adequate grounds to vacate. Under 60(b)(1), they argue, the judgment can be vacated on the grounds of "excusable neglect, inadvertence, and/or mistake" as Defendant wasn't willful, just confused about US court procedures. Under 60(b)(4), the judgment can be vacated on the grounds that the court lacks personal jurisdiction over the Defendant and that the Plaintiff didn't serve them properly. Finally under 60(b)(6), the judgment can be vacated "for any other reason justifying relief, and vacating the judgment in this case would be manifestly in the interests of justice." Spamhaus offers some possible reasons for relief: that e360insight's complaint failed to allege facts sufficient to support the elements of the causes of action, being based on "conclusory statements of opinion and law, not facts." Further, the damages were awarded without a hearing, findings of fact, "or a sufficient evidentiary basis for the award." Further the magnitude of the judgment, including damages for injury to reputation, is based, Spamhaus says, on "unsupported and inadmissable affidavit testimony of the party in interest, and thus suggests a clear deviation from accepted principles of common law and federal procedure." The injunctive relief wasn't warranted, Spamhaus argues, because the plaintiff "failed to demonstrate irreparable harm or lack of an adequate remedy at law, and no findings support such relief. The injunctive relief awarded in the default judgment thus applies an improper legal standard and improperly shifts the burden of proof onto Defendant." The judge will notice that last bit. He has to seriously consider it, because they are saying his judgment isn't going to withstand an appeal. But Spamhaus isn't done. The permanent injunction, it argues, prohibits Spamhaus from expressing its opinion of what spamming is and whether companies should do business with the Plaintiff, and that would "constitute an improper prior restraint on Defendant's freedom of speech under the First Amendment." Further, requiring Spamhaus to publish a notice on its own website that the Plaintiff is *not* a spammer "also violates Defendant's rights under the Free Speech Clause". Spamhaus has meritorious defenses that deserve a trial, it says. Zowie. Here's how I read this. Spamhaus is telling the court that it goofed. It listened to only one side and issued relief that went so far that this is now a case that could conceivably go all the way to the Supreme Court, which is where free speech issues sometimes end up, but only *if* Spamhaus really is found to be subject to this court's jurisdiction. If the court finds it wishes to vacate on the grounds that it lacks jurisdiction, then this entire episode can be over. Of course, e360insight can sue in the UK, if it wants to. Or the parties can duke it out the long way in this court and the appellate court, if the court so wishes. OK. So that's their side. On e360insight's side, they want their money and they want it now. [Update: If you look on page three of the Writ, what e360insight specifically are asking for is the domain name www.spamhaus.org, which the marshall is somehow to seize from Tucows. They list an address for Tucows as "Starkville, MS". However, Tucows is a Canadian company, so you'd have to ask e360insight's lawyers what they are thinking. Tucows does have a billing service with an office in Mississippi, leftover from a buy of Boardtown, but what that has to do with Illinois is unknown to me.] I suspect that is unlikely to happen, but you never really know. Who'd have thought something like this could happen in the first place? There's a reason why Abraham Lincoln said the best lawyers keep their clients out of court and Jesus is recorded as saying that if someone wants to take you to court, try to work it out before you end up there and maybe lose your shirt. I'm just paraphrasing in my own words, of course. But as you can see, a mopping up operation is a lot harder than not getting into a mess in the first place. So that's your Spamhaus report. Our earlier coverage is here, which also has a link to e360insight's page of court documents. The new ones by Spamhaus are not yet on that page. Here's an article with some background, which someone asked me to add. I know a lot of you are interested in this case, so I wanted to let you know what is going on.
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Authored by: ws on Friday, October 27 2006 @ 02:29 AM EDT |
Remember to make links clicky.
[ Reply to This | # ]
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- BBC Browser Poll - Authored by: Anonymous on Friday, October 27 2006 @ 10:06 AM EDT
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- Universal's C&D demand letters to Firefly fansites - Authored by: Anonymous on Saturday, October 28 2006 @ 01:46 PM EDT
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Authored by: ws on Friday, October 27 2006 @ 02:29 AM EDT |
Mishtakes go hera. [ Reply to This | # ]
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Authored by: Anonymous on Friday, October 27 2006 @ 02:36 AM EDT |
If it's true that Spamhaus expressly asserted its defenses based on a lack of
personal jurisdiction from the beginning, it's hard to avoid the conclusion that
the judge in the case is (to put it charitably) incompetent.[ Reply to This | # ]
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- Spamhaus raised jurisdiction issue from the start? - Authored by: Anonymous on Friday, October 27 2006 @ 03:21 AM EDT
- Spamhaus raised jurisdiction issue from the start? - Authored by: PJ on Friday, October 27 2006 @ 03:27 AM EDT
- Spamhaus raised jurisdiction issue from the start? - Authored by: Anonymous on Friday, October 27 2006 @ 05:01 AM EDT
- Spamhaus raised jurisdiction issue from the start? - Authored by: cybervegan on Friday, October 27 2006 @ 05:08 AM EDT
- Spamhaus DID raise the jurisdiction issue, but... - Authored by: Nivuahc on Friday, October 27 2006 @ 09:11 AM EDT
- The judge is not competent - Authored by: Anonymous on Friday, October 27 2006 @ 11:12 AM EDT
- The judge is competent - Authored by: Anonymous on Friday, October 27 2006 @ 01:30 PM EDT
- The judge is competent - Authored by: sef on Friday, October 27 2006 @ 01:54 PM EDT
- nah, incompetent - Authored by: Anonymous on Friday, October 27 2006 @ 02:01 PM EDT
- nah, incompetent - Authored by: sef on Friday, October 27 2006 @ 02:17 PM EDT
- Confused - Authored by: MDT on Friday, October 27 2006 @ 03:22 PM EDT
- Confused - Authored by: sef on Friday, October 27 2006 @ 04:10 PM EDT
- The judge is a cretin - Authored by: PJ on Saturday, October 28 2006 @ 03:12 PM EDT
- Um - Authored by: Anonymous on Saturday, October 28 2006 @ 06:00 PM EDT
- The judge is competent - Authored by: Tyro on Friday, October 27 2006 @ 03:38 PM EDT
- Spamhaus raised jurisdiction issue from the start? - Authored by: Anonymous on Friday, October 27 2006 @ 02:25 PM EDT
- Spamhaus raised jurisdiction issue from the start? - Authored by: Anonymous on Friday, October 27 2006 @ 08:18 AM EDT
- Spamhaus raised jurisdiction issue from the start? - Authored by: Anonymous on Friday, October 27 2006 @ 05:28 PM EDT
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Authored by: gbl on Friday, October 27 2006 @ 02:37 AM EDT |
If Illinois is like other states I'm more familiar with, it can't
touch assets outside the state with an Illinois writ of execution. So it's a bit
puzzling to me why they are doing that, unless perhaps they think or know that
there are assets in the state.
Currently there is an
asymmetrical extradition agreement between the UK and the US. A treaty was
signed and the UK government will extradite on a "good reason" basis, no formal
evaluation of the evidence is required. The treaty requires the same of the US,
but the Senate has yet to approve the treaty so the old rules are still in
force.
The result is a UK citizen can be extradited by means of a simple
request by a US prosecutor.
I have no idea if this is a concideration in the
Spamhaus case but recent events where UK businessmen were arrested in the US
because their perfectly legal UK business suddenly became illegal in the US must
be a concideration in many running legal cases.
--- If you love some
code, set it free. [ Reply to This | # ]
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Authored by: jig on Friday, October 27 2006 @ 02:56 AM EDT |
it's amazing how everything is covered in the first year of law school... [ Reply to This | # ]
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Authored by: Anonymous on Friday, October 27 2006 @ 06:04 AM EDT |
I'm not sure about this, but looking at the on the Spamhaus website and
comparing the position of Illinois with the mirror servers, there may well be a
mirror server in Illinois. Of course whether this is actually an asset of
Spamhaus or simply a server owned by somebody else mirroring the info is another
matter.
http://www.spamhaus.org/faq/answers.lasso?section=Spamhaus%20SBL
I tried making this link clicky but it wouldn't work (something to do with word
wrapping I think)[ Reply to This | # ]
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Authored by: Anonymous on Friday, October 27 2006 @ 07:21 AM EDT |
Thanks for that, we really are interested in this case, especially those of us
from the UK.[ Reply to This | # ]
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Authored by: Anonymous on Friday, October 27 2006 @ 07:29 AM EDT |
It says that the name of property to be served or description of property to
seize or condem:
Tucows, Inc. Property to be seized: Domain name www.spamhaus.org
Address
116 E. Main st. Starkville, MS 39759
Now, to me, they only seem to be asking to seize just the www.spamhaus.org
subdomain which surely is an error.[ Reply to This | # ]
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Authored by: Anonymous on Friday, October 27 2006 @ 08:48 AM EDT |
Hi PJ, on these Spamhaus articles you never give us any summary of what this
case is about or links to previous articles we can look up. Is there a section
of
Groklaw about this? How did it start?
J
[ Reply to This | # ]
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Authored by: Alan(UK) on Friday, October 27 2006 @ 09:10 AM EDT |
But Spamhaus isn't done. The permanent injunction, it argues, prohibits
Spamhaus from expressing its opinion of what spamming is and whether companies
should do business with the Plaintiff, and that would "constitute an improper
prior restraint on Defendant's freedom of speech under the First
Amendment."
Usual disclaimer IANAL/I am not a US citizen.
I thought
that it had been determined that the US Constitution gave no rights to
non-Americans. (This being why that little holiday camp in Cuba is 'legal'.) If
this is so, then how can Spamhaus claim that the First Ammendment makes the
court decision 'improper'? [ Reply to This | # ]
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Authored by: talexb on Friday, October 27 2006 @ 10:07 AM EDT |
Zowie. Here's how I read this. Spamhaus is telling the court that it
goofed. It listened to only one side and issued relief that went so far that
this is now a case that could conceivably go all the way to the Supreme Court,
which is where free speech issues sometimes end up, but only *if* Spamhaus
really is found to be subject to this court's jurisdiction. If the court finds
it wishes to vacate on the grounds that it lacks jurisdiction, then this entire
episode can be over. Of course, e360insight can sue in the UK, if it wants
to. Or the parties can duke it out the long way in this court and the
appellate court, if the court so wishes.
Oh yeah .. Spamhaus would
be fine with the case in the UK .. that's their backyard, and they'd have
UK law on their side.
I wonder if e360insight's next move will be to to
try filing a grievance at The Hague. [ Reply to This | # ]
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Authored by: moonbroth on Friday, October 27 2006 @ 11:47 AM EDT |
Anyone who wants to admire one of Spamhaus' previous legal successes from 2003
(and has *way* too much time on their hands) can check out the archived legal
docs at the Linxnet Spam
Files. Incidentally, similar issues re: lack of personal and subject matter
jurisdiction came up in the Defendants' Motion to Dismiss. Unfortunately (in this case), the
spammers and their dodgy lawyer friend escaped with their hides intact. Better
luck this time!
Cheers, Nick [ Reply to This | # ]
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Authored by: Carla Schroder on Friday, October 27 2006 @ 01:20 PM EDT |
This is not the first time a DNSRBL has been attacked in
some manner. They hit spammers where it hurts, and they
are absolutely the only organizations that do. Yes, we see
the occasional story about some spammer getting hauled
into court and prosecuted and fined. But the numbers are
insignificant.
e360 is not going to go away. Beware dirty tricks. Usually
the attacks are more devious, such as distributed
denial-of-service attacks that kill their servers.
Don't expect politeness or rational behavior from a
spammer. Normal people do not:
-engage in a business that makes them among the most hated
people on earth
-commit mass vandalism
-routinely commit massive fraud and theft
This is very much like a drug dealer suing the person who
organizes a neighborhood watch to get rid of the drug
dealers.
[ Reply to This | # ]
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Authored by: rsteinmetz70112 on Friday, October 27 2006 @ 01:41 PM EDT |
I believe that under the Full Faith and Credit clause of the US Constitution
every state is required to honor the legal judgments of every other state,
absent some substantial legal reason.
Most states have what are called "Long Arm Statutes" which allow their
courts to hear cases where the injury was caused by an out of state company. The
injury alone is considered to be sufficient to establish the company had
significant contacts in the state and therefore for the state court to hear a
case which might otherwise go to Federal court or some other state and to make
decisions.
In the past injury was usually caused by some specific act or concequence of the
company in the state, which makes sort of sense. (In the case I was inolved the
out of state company had provided defective material for a construction
project.) You wouldn't want to have to go to Illinois to sue a railroad that ran
over your cow of some such. The Internet confounds that logic, because the
Internet is everywhere and damages can therefore be everywhere.
Once a case is decided in one state then the lawyers can go to courts in other
states to get that judgment executed. The first step in that is for the court
which heard the case to enter a judgment.
Under that type of arrangement then the next step in getting a state court
ruling enforced in another state is to go to the court where the assets are
located and file with the court there.
Usually the winner doesn't need go to all that trouble but I have been involved
(tangentially) in a case where it happened, but only where a lot of money was
involved.
I would imagine, but don't know, that there is a similar arrangement
internationally. It seems especially likely between the US, Canada and the UK
(among otheres), because they have especially close relationships and similar
legal systems. There is probably some formal mechanism for resolving these kinds
of disputes.
I'm not a lawyer and this is based on a construction damages case I was once
involved in as a fact witness. It may or may not apply in this case, but I would
guess that is what e360insight is up to.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
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Authored by: Brian S. on Friday, October 27 2006 @ 02:23 PM EDT |
Spamhouse is in the UK.
e360insight is in the US.
The only way
Spamhouse has any immediate problems is if any of their personell visit the
US(Why do that, whilst this is going on?).
Thus, the only way for the
Illinois Court or e360insight to touch them is to come to the UK.
If
e360insight has a mind to, I suppose they could take this all the way to an
"international incident" via the US courts, but that is going to take an awfull
lot of money with an odds on loss at the end of it.
Even allowing for UK/US
extradition treaties, does anyone from the UK seriously believe that the UK
courts and government will willingly hand them over when they look into the
facts?
Th gambling and Nat. West incidents must have cost the UK government
10% points in the opinion polls with their electorate.(In the UK, these were
seen as an example of it's government sucking up to GWB under the guise of the
War on Terror - it filled prime time news slots along with Iraq).
I think
Spamhouse should IGNORE the US courts except for procedural issues which could
have side effects(their domain name). If e360insight or the Illinois courts
have a problem with that, they can come to the UK and sort it out. Brian
S.
[ Reply to This | # ]
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Authored by: Nick_UK on Friday, October 27 2006 @ 05:15 PM EDT |
Why is this company allowed to sue anyway? Isn't it a bit
like a burglar suing a house-holder because he wasn't
allowed in the house?
Law is a total ass.
Nick[ Reply to This | # ]
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Authored by: 1N8 M4L1C3 on Friday, October 27 2006 @ 08:41 PM EDT |
Extrajurisdictional court orders [including writs of execution issued within
Illinois] can be enforcable within the UK.
Under British Common
Law an applicant, with a valid extrajurisdictional order in hand, can
apply to the local Supreme Court - having the extrajurisdictional order
recognized as one of their own.
In essence, what happens:
1. The court in
Illinois issues a Writ of Execution
2. A petition is filed with the British
Supreme Court, with the Illinois court order normally attached as an exhibit;
supporting affidavits are concurrently filed, the other party/parties are served
to appear, yadda yadda yadda....
3. Oral arguments are heard [ sometimes
Ex Parte ]
4. If the applicant is successful, the British Supreme
Court then recognizes the Illinois Writ of Execution as one of it's own
orders... ...fully enforcable by the local bobbies and bailiffs.
Essentially,
this is the same procedure used to extradite someone from a Commonwealth country
for criminal proceedings... ...albeit, much simpler.
In short, you can run -
but you can't hide for very long. --- On the 7th day, Linus saw that which
he created and it was good... ...on the 8th day SCO litigated. [ Reply to This | # ]
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Authored by: Jaywalk on Friday, October 27 2006 @ 10:51 PM EDT |
I know what they told the court they wanted, but it's not like they can honestly
expect to get what they want on this route. Spamhaus isn't a US company, so
there are no assets they can sieze and they can forget about the $11
million. And it's not like taking their URL is going to make any significant
difference to their spamming biz. So why are they shelling out the cash to
pursue this? Is it just spite? --- ===== Murphy's Law is recursive.
===== [ Reply to This | # ]
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Authored by: Anonymous on Saturday, October 28 2006 @ 12:41 PM EDT |
Why did Spamhaus fight to get this to Federal court, when it felt that no court,
state or federal, in the US had any jurisdiction? Did this have anything to do
with the change in attorneys?[ Reply to This | # ]
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Authored by: Anonymous on Saturday, October 28 2006 @ 09:34 PM EDT |
What this case has made clear is that something like Spamhaus simply could not
continue to function under US jurisdiction. Those who think the US court system
is so great might like to reflect on that for a minute. [ Reply to This | # ]
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