Media Coverage and the Balsam Chronicles

Last week I was quoted in an AP story on professional spam litigant Dan Balsam whom I have opposed and even sued a few times. The AP article was followed by a series of television and radio segments on Balsam and I appeared on several them (see below). In light of some of the questions I have received, I thought it would be useful to put everything in context with the FAQs below.

Why were you interviewed?

Apparently, the AP article states that I am Balsam’s nemesis or Frazier to his Ali. (An amusing description since I was a Joe Frazier fan and went to college with his daughter.) Since 2003, I have sparred with Balsam over California’s spam law and won. My clients have twice sued Balsam for breach of settlement agreements and I have sued him for defamation.

That being said, however, spam litigation is only a part of the Internet Law Center’s current practice.

But Dan hates spam, isn’t that a good thing?

To the extent that Dan’s multitude of lawsuits includes suits against real spammers – bravo for Dan. He deserves credit for his work and perseverance in pursuing these companies. My initial encounters with Dan, however, were with legitimate non-spamming companies in which Balsam’s primary motivation appeared to be lining his own pocket.

So what is your beef with Dan?

My principal issues with Balsam are (i) his abuse of the small claims process and (ii) his uncivil zealotry in pursuit of his cause.

Mr. Balsam claims I have “YET to provide a single example of how I’m taking advantage of the small claims courts.” Dan conveniently forgets that I briefed this issue and helped XY7.com win a dismissal of Balsam’s small claims case against them as improperly brought in small claims court. In victory, XY7.com issued a press release asserting that Balsam “ambushes companies in small claims court where lawyers are not allowed leaving upstanding legitimate corporations with their pants down”.

On the second issue, the AP story noted that Balsam has been accused of zealotry in court documents such that ‘anyone who disagrees with him must be villainous;’ a view that is shared outside the courthouse as one reporter has noted that

[t]o Balsam, opinions that didn’t agree with his were factual errors, or more aptly put, lies.

In my first two encounters with Balsam (Balsam v. Matthews in 2004 and Balsam v. ValueClick in 2006), he unsuccessfully took ridiculous positions and not only would he not listen to reason but he would become enraged and vilify you for having the audacity to challenge him. Balsam responded to his loss in the XY7.com case by threatening their CEO that he would make them “pay” a price.

A week later, after I appeared on a web radio show in which XY7.com and I expressed our opinions about the case and Balsam, he quickly lashed out in a six-page letter threatening to sue unless there was a retraction even though the comments (i) were opinions which cannot be defamatory as a matter of law; (ii) were privileged under Civil Code Section 47(d); and (iii) are protected under the First Amendment. I responded that

While it is clear that you have some psychological problem with being challenged and/or accepting defeat, the proper place to deal with this is a therapist’s office and not in the state court system. I must remind you that [your] admission to the bar is not a license to use the courts to bully people or for retribution.

Balsam has stated that “my win record suggests that I’m doing everything properly”. Well in Matthews, ValueClick and XY7.com his record in 0-3.

At the end of the day, his cause is not helping political prisoners or starving children, instead, he is over-litigating cases and engaging in scorched earth tactics over something as banal and inconsequential as email (unless its really just about the money). He would be well served if his conduct were more measured to reflect this fact (a sense of humor would not hurt either).

Dan accuses you of cybersquatting – is that true?

Not really. In 2008, I opposed a bill Balsam was pushing in Sacramento to make it easier for him to sue and win. During that process, I landed on DanHateSpam.com (which is one “s” shy of Balsam’s DanHatesSpam.com) and discovered it was unregistered. To make a point, I bought the domain and redirected it to an article condemning the bill and criticizing Balsam for being part of a “cottage industries of zealots suing legitimate companies”. Balsam contends that this is a case of bad faith and intentional cyber-squatting when in reality courts have repeatedly rejected this claim and found so-called “gripe sites” to be protected by the First Amendment.

It’s Showtime!

In addition to the AP story, I also have appeared on the Today Show and a CBS-San Francisco segment about Balsam. Our last appearance on a local San Francisco ABC station was beset by feed problems.