4th Circuit Beats Back Anti-Spam Plaintiff

The Fourth Circuit issued a decision last week that for lack of a better description beat back an anti-spam activist.  The decision contains the motherlode of arguments for anti-anti-spam lawyers.  (Omega World Travel, Inc. v. Mummagraphics, Inc., 2006 U.S. App. LEXIS 28517, No. 05-2080 (4th Cir. Nov. 17, 2006)) [access a pdf version here].  The case decides several typically contested legal issues.  It also contains helpful general language to the effect that while spam is a serious problem, the law should not be stretched to address situations not intended by Congress.  This is a constant refrain for lawyers who defend spam cases.  Now they finally have some powerful judicial backup.

In Mummagraphics, the Fourth Circuit affirmed the decision of the district court (Judge Brinkema, who sits in AOL’s home jurisdiction and is no stranger to these types of cases).  The court found CAN-SPAM preempted the state cause of action – based on immaterial errors in the emails – alleged by Mummagraphics, Inc. (Mummagraphics).  The court also rejected the underlying CAN-SPAM claims.  The decision is important for one simple reason:  anti-spam lawyers (and plaintiffs) often advance the exact arguments advanced by the plaintiff in this case.  Lawyers on the other side know these arguments lack merit, but do not have any court decisions to back them up.  As a result, a vicious settlement cycle results.  This case probably represents the start of the tide turning in the other direction.  

Preemption

CAN-SPAM preempts state law dealing with commercial email except to the extent state law is aimed at preventing falsity or deception.  The few published federal decisions addressing preemption reach the opposite conclusion as Mummagraphics.  For example, Gordon v. Impulse Marketing Group, Inc., 375 F. Supp. 2d 1040, 1042 (E.D. Wash. 2005), concluded that CAN-SPAM does not preempt claims under Washington’s anti-spam statute.  (See also Beyond Sys. v. Keynetics, Inc., 422 F. Supp. 2d 523, 528 (D. Md. 2006); but see White Buffalo Ventures, LLC v. Univ. of Texas, 420 F.3d 366, 371 (5th Cir. 2005), cert. denied, 2006 U.S. LEXIS 61 (Jan. 9, 2006).)  One would have expected a similar result in Mummagraphics, given that the Oklahoma spam statute roughly tracks the Washington statute.  The Washington statute prohibits the misrepresentation of “any information in identifying the point of origin or the transmission path” and is not limited to material misrepresentations.  See RCW § 19.190.020.  Gordon found claims under this statute to survive CAN-SPAM.

Mummagraphics notes that the Oklahoma statute “seems to reach beyond common law fraud and deceit . . . [and] is not limited to inaccuracies in transmission information that were material.”  The court acknowledges there are no Oklahoma cases interpreting the Oklahoma spam statute.  According to the court, the percise scope of the Oklahoma statute is irrelevant:  Mummagraphics’ state law action is premised on immaterial errors (see the discussion below), and for this reason cannot survive CAN-SPAM’s premption clause. 

In analyzing the scope of preemption, the court focused on the words “falsity” and “deception.”  First, because falsity appears with the more serious word deception, this should color the interpretation of falsity.  The exceptions should cover deception and "other torts involving misrepresentations, rather than to sweep up errors that do not sound in tort."  Second, CAN-SPAM uses the terms (albeit in headings) “materially false,” and “materially misleading.”  Congress intended CAN-SPAM to cover materially false or misleading emails.  Finally, and most importantly, the court reasons that

Congress did not intend ‘falsity’ to encompass bare error because such a reading would upset the Act’s careful balance between preserving a potentially useful commercial tool and preventing its abuse.

The narrower interpretation given to the preemption clause allows it to avoid commerce clause issues as well as First Amendment concerns (!).  (I had written previously that both of these are essentially dead issues in the context of CAN-SPAM analysis, but this decision illustrates how they could have an indirect influence on the court’s interpretation of CAN-SPAM and preemption.) 

CAN-SPAM Violations 

With respect to the CAN-SPAM claims, Mummagraphics first asserted the emails in question contained “header information that is materially false or materially misleading.” Mummagraphics claimed the emails violated the statute because they originated from one server (FL-Broadcast.net) but contained a different "from" line (cruisedeals@cruise.com).  Established, legitimate, advertisers do this all the time, particularly where a third party service provider or service is used to send the email – the “sender” is technically someone other than the company whose products and services are being sold, but the advertiser wants the recipient to know its identity and relationship to the email.  The court smacks down Mummagraphics’ often-used argument, noting that the emails are “chock full of methods to ‘identify, locate, or respond to’ the sender or to ‘investigate [an] alleged violation’ of the CAN-SPAM Act.”  In other words, everyone knew where the email came from so there could be no violation of the header information prong.  (The fact that the plaintiff was able to locate and call the sender’s general counsel is also a testament to this.)  The court also notes that in the context of an email which legitimately proposes a commercial transaction (as opposed to a phising scam or something which injects malware into your system) it would come “as little surprise” that the email in question identifies the sender or the company offering the product or service.      

Mummagraphics also asserted a claim based on the sender’s failure to honor an opt-out request.  The court easily disposes of this claim, noting that there was no allegation of a “pattern or practice” of failure to honor an opt-out. 

 

At the end of the day, this will be widely cited by lawyers who defend CAN-SPAM cases.  You can’t really get better than when a court says the statute “does not impose liability at the drop of a hat.”  Obviously, time will tell as to the precise effects of this decision. 

A few other minor points:

  1. The court enclosed the words “spam” and “spammer” in quotes.  This could be a signal that these are legally loaded terms that carry little meaning when used by the parties in pleadings.

  2. The court’s brief First Amendment discussion (fn. 2) will no doubt get some mileage (maybe in the Jaynes case?).

  3. The result on the state claim feels right, but the approach is slightly awkaward.  The court have easily interpreted the state law to avoid preemption and the issue noted in fn 2 -- i.e., concluded that Mummagraphics failed to state a claim under OK law.

  4. The decision goes out of its way to mention Mummagraphics’ refusal to use the opt-out mechanism.

  5. It's disappointing that the court does not mention/address the other preemption decisions.

 [link to the decision originally via How Appealing] [corrected to include references to the White Buffalo and Beyond Sys. cases; and again correct to clarify that White Buffalo does not reach a contrary conclusion to Mummagraphics.]

 
Trackbacks
  • 11/22/2006 9:21 AM Spamroll wrote:
    Venkay Balasubramani over at Spam Notes posted a nice summary of the recent 4th Circuit Court decision in the Mark Mumma anti-spam case. In brief: The court also rejected the underlying CAN-SPAM claims. The decision is important for one simple...
Comments

  • 11/22/2006 12:32 PM Michael wrote:
    I also noted that the plaintiffs in that suit -- The victims of the anti-spam harrassment -- Are still allowed to continue their own action sounding in defamation (and in a Virginia court at that!). This could come out even worse for the anti-spam crusader other than just "go home."
    Reply to this
  • 11/22/2006 7:22 PM Bernie Dietz wrote:
    Nice write-up on the case. This seems to be more of a case of choosing the wrong spammer for a CAN-SPAM complaint. The errors complained of were very minor and, as the court noted, there were many other legitimate contact points in the emails. There are many more egregious violations out there that would make for a better plaintiff's case, although the defendants are hard to successfully pursue and collect from...
    Reply to this
  • 11/27/2006 10:24 AM Ed Falk wrote:
    I think there's some confusion here. Mark Mumma is the defendant in this case, not the plaintiff. In short, Cruise.com are suing Mumma for defamation for calling them spammers. The case, essentially, is that Cruise.com is CAN-SPAM compliant, contrary to Mumma's claims when he threatened to sue them for spamming. To my untrained eyes, the linked pdf file is the court's refusal to grant Mumma summary judgment dismissing the case.
    Reply to this
  • 11/27/2006 11:10 AM Venkat wrote:
    I used the terms imprecisely! The lower court dismissed Mummagraphics' claims. The appellate court affirmed, saying they were properly dismissed.

    Mummagraphics happened to be the defendant, not the plaintiff, because cruise sued first for defamation (etc.). Either way, the decision focuses on Mummagraphics' claims and affirms dismissal of these claims.

    (Michael is right, one of cruise's claims will go forward - that's ironic.)
    Reply to this
  • 11/27/2006 7:04 PM Mark W. Mumma wrote:
    I feel I should clarify a misconception in the blog entry above. You blogged:

    “Mummagraphics claimed the emails violated the statute because they originated from one server (FL-Broadcast.net) but contained a different "from" line (cruisedeals@cruise.com).”

    This statement is untrue.

    My countersuit against them wasn’t because they were sending email from a domain other than the domain in the reply address. The email was sent from a mail server called “fll.cruise.com” however, Cruise.com had entered “fl-broadcast.net” as the server’s name in their email broadcasting program.

    Fl-broadcast.net IS NOT just another server owned by Cruise.com. fl-broadcast.net was an UNREGISTERED DOMAIN. It is not a domain that they have EVER owned. (And I suspect they well knew this) For the months or years that they used it I am guessing it helped them avoid being blocked by blacklists. WHY they used it I don’t know.

    In the court record, the Plaintiffs blame the “fl-broadcast.net” server name on a software bug in their email broadcast program, they don’t characterize “fl-broadcast.net” as some type of “honest mistake”. Only the appellate court appears to have done that.

    If the naming of their mail server was, indeed, an accidental misspelling of “fll.cruise.com” then I suppose they didn’t violate the law. Does anybody really believe that the unowned domain that appearing in the headers of each of these emails was some sort of boo boo?

    While I disagree with the Appellate court’s decision, I am forced to accept it as I am hardly in a position to do much about it. It was a long, hard and expensive lesson to learn but I’ve learned it. Spamming is legal and unless we get the law changed it is only going to get worse. Much worse.

    Mark W. Mumma
    Reply to this
  • 2/5/2007 11:19 AM Mark W. Mumma, the WebGuy wrote:
    Bernie wrote:

    "The errors complained of were very minor"...

    WebGuy says:

    I didn't realize email server name forgery was a 'minor' thing...

    How silly of me to have thought that CAN-SPAM excused header forgery as long as there is a good phone number in the body of the message....

    Sorry!
    Reply to this
    1. 2/8/2007 6:44 AM NikeSwooshes wrote:
      definitely a case of choosing the wrong spammer. plenty of spineless spammers to go after, yet this guy appears to have chosen a company that can't be proven to be a spammer. maybe he doesn't wanna buy it, but that's what it is.

      to read a good interview about this case, that exposes some pretty interesting viewpoints this guy has, click here:

      http://directmag.com/disciplines/email/anti-spammer_ballistic_2/index.html
      Reply to this
  • 2/8/2007 9:17 AM Mark W. Mumma, the WebGuy wrote:
    Looks like you need to read the 4th circuit's published opinion again. The very first sentence states that spam 'inspired' this lawsuit.

    http://pacer.ca4.uscourts.gov/opinion.pdf/052080.P.pdf

    The other side's own definition of spam describes what they're doing to a tee. I don't know where you think you saw that they were proven not to be spammers. The only thing that's been proven is that they are not spamming 'illegally'. That's not the same as being proven NOT to be a spammer.
    Reply to this
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