If you're ever trying to dissuade someone from going to law school, you might play this recording of oral arguments before a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in a case called e360 Insight v. Spamhaus Project.
Years ago, e360 was identified as a spammer by Spamhaus, a non-profit dedicated to combating junk e-mail senders. The now-defunct company claimed it had been improperly targeted and said Spamhaus had cost it millions of dollars in contracts. After Spamhaus knocked out an $11.7 million award for e360, the company went back to Chicago federal court with new damages theories, first claiming it was owned $30 million, and then that Spamhaus should cough up $135 million. But because of e360's discovery violations, the court limited its award to $27,000. That wasn't enough for e360 or its founder, who asked the Seventh Circuit to review the trial court's sanctions and damages rulings.
e360's lawyer, Joseph Kish of Synergy, appeared before appellate judges Richard Posner, Michael Kanne, and David Hamilton on June 8-a date Kish will either never forget or has blocked from his memory in an episode of selective amnesia.
Almost as soon as Spamhaus's lawyer, Craig Martin of Jenner & Block, sat down, Judge Posner ripped into Kish for the inconsistencies in e360s various damages theories. In an unforgettably nasal drone, the judge called Kish's arguments "incompetent," "grotesque," "preposterous," and "totally irresponsible." (Ars Technica has a good summary of the bloodbath.) Kish was stalwart throughout, polite and composed. But it was as rough a session as I've ever heard.
So it had to be a relief when Kish saw Friday's Seventh Circuit opinion in the case. (He didn't respond to my phone and e-mail messages.) Not the bottom line-the appeals court cut e360's damages to $3, one buck for each of its claims against Spamhaus-but the author: Judge Hamilton wrote the ruling, and he's vastly more moderate than Judge Posner was during oral arguments. The judge methodically explains why e360 deserves no award, finding that the district court was correct to sanction the company and that e360 offered no plausible support for any of its various damages theories.
Judge Hamilton holds any exasperation he might have felt for e360 until the very end of the 23-page opinion, and even then he was relatively gentle. "By failing to comply with its basic discovery obligations, a party can snatch defeat from the jaws of certain victory. After our earlier remand, all e360 needed to do was provide a reasonable estimate of the harm it suffered from Spamhaus's conduct," the judge wrote. "Rather than do so, however, e360 engaged in a pattern of delay that ultimately cost it the testimony of all but one witness with any personal knowledge of its damages. That lone witness lost all credibility when he painted a wildly unrealistic picture of e360's losses. Having squandered its opportunity to present its case, e360 must content itself with nominal damages on each of its claims, and nothing more." (If you think that's harsh, you definitely haven't listened to Judge Posner at oral argument.)
Spamhaus counsel Martin, who clearly knows when not to rock a sinking boat, declined comment.
(Reporting by Alison Frankel)
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