November 09, 2011
Ohio Court of Appeals: Lawyer-Plaintiff Can't Sue for Misleading Email Ads Which he Knew Were Misleading -- Cicero v. American Satelitte
[Post by Venkat Balasubramani]
Cicero v. American Satellite, Inc., 2011-Ohio-4918 (Ohio Ct. App. Sept. 27, 2011) [pdf]
Cicero is a lawyer who lives and practices in the state of Ohio. He sued defendant based on 85 marketing emails sent on behalf of the Dish Network (47) and DirecTV (38). He alleged that the emails were misleading because they “failed to state on the face of the email all of the applicable terms and conditions” of the offers and because the emails used the word “FREE” in the emails and the services in fact were not free.
During his deposition, plaintiff testified that he knew when “looking at an email” that it violated Ohio’s consumer protection statute, and he knew this as far back as 2008, due to his experiences in a lawsuit with EchoStar. He also testified that he “began to eventually save [the emails] and collect them” for purposes of litigation. [The record does not detail Cicero's involvement in the EchoStar lawsuit, but we've blogged about Ferron v. EchoStar previously: "Lawyer-Spam Plaintiff Loses in the Sixth Circuit Over Allegedly Misleading DISH Network Emails;" "Email Ad Network Isn't Liable for Unsolicited Email."]
The court says the key issue is whether plaintiff can recover, despite evidence which “affirmatively show[ed] the plaintiff possessed particular knowledge of the facts that prevented him from being deceived by a supplier’s conduct.” The court looks to the Sixth Circuit’s decision in EchoStar, as well as several other cases which plaintiff was involved in and says that plaintiff cannot sue where he knew the emails were misleading when he received them. The court says:
because he had previously researched this issue and because he was involved in prior litigation involving the same subject matter a year before the instant case was filed, he was aware of what could potentially be a deceptive consumer sales practice prior to ever having received any of the emails that are the subject of this lawsuit. Additionally, [plaintiff] admitted at his deposition that because he believed the emails at issue here were in violation of the [Ohio Consumer Protection Statute], he began saving subsequent emails for litigation purposes.
the record affirmatively establishes that appellant, through prior litigation, had prior knowledge of the facts such that he was not and could not be deceived by [defendant's] acts because he was aware of the terms he alleges were excluded before he received the emails in question.
Defendant also argued that the alleged misstatements in the emails were not material and that it could not be held liable for the actions of third parties (presumably third party emailers) but the court did not reach either of these grounds.
Another court that's less than sympathetic towards a lawyer-plaintiff. Quel dommage. (Woods v. Google was the most recent example of this, but there are many others.) Courts are also not sympathetic to claims which they perceive as manufactured. (See, e.g., the spam cases.) This lawsuit combined both of these elements--a lawyer-plaintiff, who saved up allegedly misleading emails so he could file suit--so it's hardly surprising that the court gives him the boot.
This lawsuit reminds me a lot of the Reunion.com case, which grappled with the question of whether a plaintiff actually had to rely on misleading statements in emails or could claim that he or she had been damaged by merely opening an email. (See Ethan Ackerman's post from 2009 that speaks to this question: "Reunion.com Revisited.") Strangely, the court in this case does not even address the issue of whether the plaintiff spent any money in reliance of the misleading emails in question. Given the plaintiff's admission that he knew the emails were misleading and collected them for the purposes of litigating his claims, the court bypassed this issue. Nevertheless, I would think that since the plaintiff was suing based on a consumer protection statute, he would have to show that he actually incurred some damages based on the misstatements in question?
Post-script: After the court of appeals issued its opinion in this case, it issued an opinion in Ferron v. Dish Network, LLC, reversing the trial court's dismissal of Ferron's claims against the Dish Network based on alleged violations of Ohio's Telephone Solicitation Sales Act and Ohio's Consumer Protection Statute. (Here's a link to the opinion: [pdf].) The opinion is interesting, and given that we've posted on other Ferron cases, it probably warrants a separate blog post, which will be forthcoming.
Posted by Venkat at November 9, 2011 09:37 AM | Marketing