October 13, 2011
Court Dismisses Lawsuit Under Michigan Spam Statute Based on Preemption and Lack of Standing -- Hafke v. Rossdale Group, LLC
[Post by Venkat Balasubramani]
Hafke v. Rossdale Group, LLC, 11-cv-220 (W.D. Mich.; Oct. 7, 2011)
Hafke described himself as someone who is "attempting to stop Spam in Michigan." He sued Rossdale, a continuing legal education provider, complaining about six unsolicited email messages he received from Rossdale, and alleging that these emails violated Michigan's spam statute.
Rossdale removed the lawsuit to federal court, arguing that the claims are preempted by CAN-SPAM. On a motion to remand, the court agrees with Rossdale, and finds that the lawsuit belongs in federal court. For good measure, the court dismisses the case.
Michigan's anti-spam statutes (sections 445.2503 and 445.2504) contains a mix of elements from other state statutes. Although the statute prohibits misrepresentation of the point of origin or the transmission path of an email, the court notes that the statute does not "set a materiality standard for misrepresentation." Spam preemption cases have found that in order for a state spam claim based on misrepresentation to escape CAN-SPAM's preemption, the misrepresentation must be material. (See Eric's post on Omega World Travel v. Mummagraphics, "Fourth Circuit Rejects Anti-Spam Lawsuit," for background on this.) Because plaintiff did not allege any misrepresentations in the email that were material, the court finds the claims preempted:
The technical violations regarding header, sender, and opt-out information that Plaintiff alleges as violations of the Michigan statute are not allegations of materially deceptive actions. His allegations are thus subject to preemption under CAN-SPAM.
After finding that the claim are preempted, the court dismisses the lawsuit for lack of standing. CAN-SPAM creates standing for a discrete group (other than agencies): providers of "Internet access services" who have suffered "adverse effects" as a result of the spam. Citing to Virtumundo, the court concludes that plaintiff does not have standing under CAN-SPAM.
Ouch. A dismissal that is more or less sua sponte is rough, but it's an understandable reaction from the court given the circumstances. Case law established CAN-SPAM preemption standards years ago. While interesting preemption questions linger around the edges, the plaintiff in this case did not come close to alleging claims that escaped CAN-SPAM's broad preemption clause. Unsophisticated spam plaintiffs should take note that CAN-SPAM allows for an award of attorney's fees.
Eric mentioned that Virtumundo marked an end to spam litigation factories, and it mostly did. There have been a few cases in California where litigants continue to hash out causes of action under state spam statutes (see Hypertouch v. Valueclick and Balsam v. Trancos) but in most other jurisdictions, plaintiffs have had no luck.
Posted by Venkat at October 13, 2011 03:43 PM | Spam