Gordon v. Virtumundo (9th Cir. Aug. 6, 2009) concerns whether plaintiff James Gordon, a serial CAN-SPAM Act litigant and “professional plaintiff,” had standing to bring a civil action for damages under the Act. There have been inconsistent rulings on CAN-SPAM standing in the lower courts, several of them involving Gordon. Compare the lower court ruling in this case, Gordon v. Virtumundo, Inc., 2007 U.S. Dist. LEXIS 35544 (W.D. Wash. May 15, 2007), that because Gordon did not experience “substantial actual harm” as a result of unsolicited commercial e-mail sent to its users he lacked standing under the Act with Gordon v. Ascentive, LLC, 2007 U.S. Dist. LEXIS 44207 (E.D. Wash. June 19, 2007), finding that Gordon’s provision of free e-mail accounts to a small number of individuals conferred standing to pursue CAN-SPAM civil claims.
Here, the Ninth Circuit upheld the district court ruling above that dismissed Gordon’s claims for lack of standing. The appeals court also upheld the district court’s conclusion that the Washington anti-spam statute is preempted by CAN-SPAM, and therefore Gordon’s claims under the Washington statute were properly dismissed as well.
In determining the issue of standing, the court construed 5 U.S.C. § 7706(g)(4), which permits a civil action under the Act to be brought by a “provider of Internet access service adversely affected by a violation of” specified sections of Act.