Defense attorney Richard Troberman argues that Soloway deserves at most two years in prison. In a pre-sentencing memorandum, Troberman argued that the case against Soloway is nothing more than a spam case, which under the CAN-SPAM Act carries a maximum penalty of 5 years in prison.
In a pre-sentencing memorandum, Troberman argued the government had "dressed up its indictment to include counts of mail and wire fraud". He claimed that though the government has attempted to show Soloway as having defrauded a large number of people, the record in fact shows that only 75 of over 100,000 customers ever complained about product or service. He claimed that Soloway's company had received five times more favorable feedback than complaints over its history. "That is an enviable record for any business," Troberman noted in his memo.
The memorandum also noted that Soloway had been diagnosed at an early age with Tourette Syndrome, Attention Deficit Disorder, and Oppositional Defiant Disorder. The medications he used to control symptoms from these disorders, alleged Troberman, may explain his sometimes "erratic and anti-social behavior" and the manner in which he reacted to those who complained against his products and services.
Troberman admitted that Soloway's activities might have been a major annoyance to Internet users, but claimed the sentence recommended by the prosecution is wholly disproportionate to the nature of his offenses. "It equates to a guideline sentence for an armed bank robbery in which a firearm was discharged," the defense noted.
The memorandum also pointed to the sentences handed down to the various defendants in the Enron case and argued that Soloway's crimes were much less severe than those in the Enron case, though the recommended sentence was greater by comparison.