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Lawyers for a Florida firm accused of inundating AOL users with spam have hit back with a motion seeking to dismiss the lawsuit.

According to dismissal papers filed yesterday, AOL's lawsuit against Connor Miller Software in Orlando federal court is "essentially the same" as a case "dismissed" by a Virginia judge last December.

The defendants' lawyer, Seth Berenzweig of law firm Albo & Oblon, says that Judge Claude Hilton of Virginia "concluded the technicians never sent any emails, or directed any activity to AOL's computers".

AOL retorts that the Virginia court simply refused jurisdiction in the case, hence its decision to file suit against Connor Miller Software and its directors in their home state last month.

According to AOL's lawsuit, Connor Miller Software conspired with Thailand-based spammers to send more than 35 million spam emails to its members. This avalanche of low-interest mortgage rate offers generated 1.5 million complaints, according to AOL. In addition, Connor Miller Software allegedly sold software designed to bypass AOL's anti-spam filters.

AOL alleges violations of the Virginia Computer Crimes Act, the Federal Computer Fraud & Abuse Act, and State of Florida Common Law. It is seeking an injunction, asset forfeiture, $1.6m in statutory damages and punitive damages against Connor Miller Software and company directors Charles Henry Miller and James Connor. Miller's wife, Heidi, is also named in the suit.

The defendants' co-conspirators in Thailand are named in the suit as US citizens Jonathan Beyer and Joseph Conrad.

Berenzweig, the defendants' lawyer, argues his clients are simple computer network technicians wrongly accused of spamming.

AOL is expected to file a response to the dismissal motion shortly. ®

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