A St. Dominic Regional High School graduate who sued America Online over the amount of Internet spam he was receiving suffered a minor setback Thursday.

District Court Judge Keith Powers told Louis Philippe that he could pursue his small-claims case against the communications giant. But he couldn’t do it in Maine. He’d have to go to Virginia, where AOL’s headquarters are located.

Philippe, a 48-year-old music and theater producer who grew up in Lewiston and lives in Portland, walked out of the Portland courtroom undeterred.

Not only does he plan to sue AOL in Virginia for the $1,680 that he believes is owed to him for the time he has spent dealing with unsolicited e-mails, but he also plans to file another suit in Portland.

The second lawsuit, he said, will accuse the Internet-service provider of violating Maine’s new anti-spam law, which wasn’t in effect when he filed his first case.

The law, which took effect Sept. 13, states that a person who receives spam can bring a civil action against the person or company that sent it or allowed it to get through. Under the law, the court can order fines up to $250 for each violation.

“I just feel like there should be some relief for the 24 million AOL customers who have to put up with this,” Philippe said. “Somebody has to challenge them.”

$10 an hour

When Philippe first started getting unsolicited e-mails two years ago, asking if he wanted to see naked women, get rid of his debt or operate his own online casino, he simply deleted them from his inbox.

He hoped the bulk e-mails, commonly known as spam, would stop coming.

But they didn’t. They multiplied. And Philippe eventually got fed up and called AOL’s customer service department to complain.

He claims that he was advised to do one of two things: set up his account to block specific e-mail addresses or create a list of e-mail addresses from which he was willing to accept messages.

He informed the customer service representative that those solutions wouldn’t work, because the unsolicited e-mails come from hundreds of different addresses and because he uses the account for business and he doesn’t want to block potential clients.

The AOL employee assured Philippe that the company was already aggressively tracking violators and that it could do nothing more to help him.

But Philippe didn’t back down.

Following instructions in his contract with the Internet-service provider, he started forwarding every unsolicited e-mail to AOL. Then he began mailing invoices to the accounts payable department, charging $10 an hour to offset the costs of handling the e-mails.

The company never responded, so Philippe filed his lawsuit in 9th District Court asking for more than $1,600 in overdue service fees.

‘Sort of unusual’

Describing the case as a “sort of unusual issue for small claims court,” Judge Powers asked Philippe, “So let me get this straight: You are sick of getting junk mail and you are charging them to remove it?”

Philippe nodded yes. But, in the end, the judge didn’t rule on the merits of the case. Granting a request from AOL, Powers told Philippe that he had to take his fight to Virginia.

Portland attorney Jonathan Mermin was hired to represent AOL in the case. He argued Thursday that the suit belonged in Virginia because Philippe – along with all other AOL members – agree to a terms-of-service contract before signing on.

The 11-page contract includes a phrase, stating that “exclusive jurisdiction for any claim or dispute against AOL resides in the courts of the Commonwealth of Virginia,” Mermin said.

Philippe attempted to argue that it could be too expensive for him to fight the case in Virginia, and he could be deprived of his day in court as a result.

Although Powers rejected Philippe’s argument, the judge acknowledged that the terms of such service agreements can be tricky and inconvenient for customers.

“I think most people who sign these agreements have no idea what they are getting into,” Powers said. “It’s not good public policy. And it may not be helpful to you. But they don’t want to be sued in 50 places.”

lchmelecki@sunjournal.com

Copy the Story Link