Court Accepts Narrow View of CAN-SPAM Preemption but Ultimately Dismisses Claims – Davison Design v. Riley
This is a lawsuit over spam emails. I know, it’s 2013, but bear with me.
Riley sent a demand letter alleging that numerous emails sent by or on behalf of plaintiff violated California’s spam statute. Plaintiff turned around and filed a declaratory judgment lawsuit, seeking a judgment that the 115 emails at issue did not violate California’s spam statute. Riley counterclaimed for violations of the California spam statute.
In a brief order, the court dismisses the counterclaims based on CAN-SPAM preemption. In a later ruling addressing plaintiff’s request for summary judgment, the court backtracks slightly and says that seven of the emails in question may be materially misleading and also fall under the “tort sounding in fraud” exception to CAN-SPAM preemption:
certain emails sent by plaintiffs contain more than the type of technical, non-tortious falsities that are preempted by federal law .. seven of the spam emails at issue actually contain Riley’s name in the “from” line, which is a material falsity that could possibly give rise to a claim of fraud.
The court denies plaintiff’s request for summary judgment but grants leave to file another motion.
Later, ruling on plaintiff’s motion for a protective order, the court declines to exercise declaratory judgment jurisdiction over the claims that were preempted by CAN-SPAM (those claims based on 108 of the emails). This leaves claims based on seven of the emails. These seven emails are the subject of the court’s later summary judgment ruling.
In this ruling, the court says that in order to escape preemption, a spam plaintiff need not show classic fraud – “reliance and damages need not be demonstrated to save a lawsuit from preemption” (citing a pair of Asis Internet Servs cases, see here and here). Rather, the court says that if a plaintiff can show that a sender was responsible for “knowing and material misrepresentations,” this is sufficient to escape preemption. [The court does not mention US v. Alvarez, which held that falsehoods cannot be banned consistent with the First Amendment absent proof of harm or consequences, but one wonders how a spam claim that alleged mere falsity without any reliance or materiality will fare against a First Amendment argument.]
Turning to the emails in question, the specific allegations of falsity that (counterclaim) plaintiff relied on were that the emails appeared to be sent from Riley herself … to herself. The court says that there’s no way this could make the emails deceptive:
[t]he court finds that while the use of Riley’s name in the ‘from’ line was indeed false, the fact that Riley would have immediately recognized the use of her own name puts her counter-claims in the same category as the ‘non-deceptive statements’ that were rejected by the Gordon court. Upon receiving the emails, Riley would have instantly known that she did not send those emails to herself, and thus the emails could not have been deceptive in any meaningful way.
Thus, there’s no material deception, and the claims under California’s anti-spam statute are preempted. The court grants summary judgment on the preemption issue and as with the prior claims declines to exercise declaratory relief jurisdiction over these seven emails also.
A lawsuit that stretches over two years, and in the end the court is left to resolve the question of whether including the recipient’s name in the “from” line renders the email deceptive. This is on par with an allegation that the use of “fanciful” from lines are misleading, and the Ninth Circuit squarely rejected this argument in Virtumundo. If anything, emails with from lines that look that they are from the recipient are much less deceptive than a from line that looks like it’s from a generic person at a company (e.g., “Customer Service Manager at Acme Corp”). You should know that you did not send yourself an email, right? Of course, the key question is whether the domain in question is used with permission and is fairly traceable to the sender. The from line argument has always been a red herring, although it never seems to go away. It’s nice to see the court dismiss it here.
Spam litigation is dying a slow death. Litigation over the past several years has created a few narrow openings that (as this case demonstrates) plaintiffs continue to try to exploit. Courts should close the door on these attempts. Interestingly, both sides appealed the court’s rulings, so perhaps the Ninth Circuit will take up this opportunity to pick up where it left off in Gordon v. Virtumundo?
Case citation: Davison Design & Dev. v. Riley, No. C 11-2970 PJH (N.D. Cal. Nov. 8, 2013)