Claims that Emails were not Labeled as Ads and did not Disclose Tracking Preempted by CAN-SPAM — Martin v. CCH
[Post by Venkat Balasubramani]
Martin v. CCH, 10-cv-3494 (N.D. Ill.; Mar. 24, 2011)
Plaintiff received two emails from CCH, with the following subject lines:
“Buy now pay Feb. 15”
“Offer extended – Buy now pay Feb. 15”
Based on these emails, plaintiffs files a putative class action against CCH alleging that CCH violated the Illinois spam statute. The court grants CCH’s motion to dismiss, finding the claims preempted by CAN-SPAM.
The Illinois spam statute contains the standard prohibitions on misleading subject lines and falsifying the point of origin or transmission path of an email. The statute also requires email ads to contain “ADV: as its first 4 characters.” Plaintiff alleged in the complaint that the emails were deceptive because
the subject lines do not state that the e-mails are advertisements, and the language used is misleading because it has the purpose and effect of making the recipient think the e-mail is from someone with whom he has a preexisting relationship.
The court finds that plaintiff “wisely” abandoned these arguments at the briefing stage. The emails both contained the word “buy” (and “pay”) and it’s hard to think of words that more clearly denote an invitation to engage in a commercial transaction. To the extent plaintiff argued that the emails were actionable because they were not labeled with “ADV:” this claim was “clearly” preempted by CAN-SPAM. With respect to plaintiff’s claim that the emails improperly implied that the parties had some sort of pre-existing relationship, this did not rise to the level of fraud, or at worst, was a claim for “less than comprehensive information regarding the sender.”
Plaintiff also argued that the emails were deceptive because they did not disclose the “‘secret’ ‘information-harvesting’ purpose of the e-mails.” The court treats this as a misleading subject line claim. Citing to Virtumundo and Mummagraphics, the court finds that this claim is also preempted:
[t]hat claim also appears to be for ‘incomplete’ or ‘less than comprehensive information’ in the subject lines regarding the content of the e-mails. Plaintiff essentially argues that if Defendant had provided more information or ‘complete’ information, in the subject line, Plaintiff would not have opened the e-mail . . . . [T]wo circuits have held that less than comprehensive information outside the body of an e-mail is at best a technical allegation that finds no basis in traditional tort theories and thus falls within CAN-SPAM’s express preemption clause (and outside the exception). And even if the omitted information could be deemed not only incomplete but also ‘misleading,’ Plaintiff’s claim would still be preempted by the express language of the CAN-SPAM Act, which prohibits subject headings likely to ‘mislead a recipient about a material fact regarding the contents of the message.’
In a footnote, the court also notes that the Illinois General Assembly is unlikely to have required – in the subject line of a commercial email – “a potentially lengthy and somewhat technical description of the process through which information is transmitted from recipient to sender when the recipient opens an e-mail.” Indeed, in some instances, “it may not be possible to include on the subject line” the kind of disclosure plaintiff argued for.
Spam plaintiffs continue to come up with wacky theories of liability, and courts continue to reject these theories.