Jury Rejects Lawyer’s Claims Under DC’s Anti-Spam Law — CyberLaw v. Thelaw.net
[Post by Venkat Balasubramani]
Lawyers receive a fair amount of spam from service providers and companies who offer CLEs and other services. Most lawyers simply hit the delete button, but not Eric Menhart. Menhart sued Thelaw.net alleging violations of the District of Columbia spam statute. Menhart is not just any lawyer. He is the one who tried to assert trademark rights over the term CyberLaw(TM). (See “Who Owns “CyberLaw”(TM)? Eric Menhart, a DC IP Attorney, Thinks He Does.” After much (well deserved) public ridicule, including on this blog, he finally backed off: “Eric Menhart Backs Off CyberLaw Trademark Claim“.))
Menhart alleged that he received 49 pieces of spam, and that the emails: (1) “contain[ed] false or misleading information in the subject line” and (2) had incorrect routing or transmission information.
The subject line claims: The subject line claims were a serious stretch to begin with. They included phrases such as “what you’re missing with Westlaw,” “Search Nationally in 2009!,” and “make the transition.” Most of them screamed “advertisement” and none of them suggested that they were from an acquaintance or contained a free offer. You can access a full list of the email subject lines on the verdict form here.
The routing information claim: Menhart did not detail his routing or transmission information claims, but the complaint cites to a listserv post which says that Thelaw.net “are constantly changing their email addresses” so their emails cannot be blocked.
Thelaw.net had solid preemption arguments with respect to both of these claims. CAN-SPAM cases have interpreted CAN-SPAM to only cover “material” errors or misstatements and to preempt any state causes of action which impose liability based on immaterial errors or misstatements. The claims in this case are precisely the type of claims based on non-material discrepancies or minor misstatements that CAN-SPAM preempts. The flagship cases for these principles are Omega World Travel v. Mummagraphics and Gordon v. Virtumundo; more recent examples of cases which have rejected precisely these types of claims are: Kleffman v. Vonage (use of multiple random domain names to bypass spam filter does not violate California’s spam statute) and Martin v. CCH (claims for failure to label email using “AD:,” and disclose alleged tracking preempted by CAN-SPAM).
It is unclear from the online record whether Thelaw.net argued preemption. Lawyers for Thelaw.net issued a press release following their victory, but expressing concern that the judge “ruled that whether an email subject line is false or misleading is a question of fact not law, which would mean future lawsuits under the DC statute, no matter how frivolous, could not be dismissed before trial.” So maybe no one brought up the preemption issue?
The court should have dismissed this case and never have let it get this far. Menhart, who runs a law firm called CyberLaw(TM), should have known better. The CyberLaw trademark debacle may prompt lawyers to question Menhart’s legal assessments from the standpoint of trademark law. It looks like the jury questioned his assessments (that the subject lines were misleading) as well.
Other coverage: “Jury Dismisses Spam Lawsuit Against Legal Research Company” (Wendy Davis)