The Tide Continues: Court Shoots Down Spam Class Action

Last week a federal district court decided yet another CAN-SPAM case in a manner unfavorable to plaintiffs.  (Kleffman v. Vonage Holdings Corp., No., CV 07-2406GAFJWJX May 23, 2007 (C.D. Cal.).) 

Plaintiff received 11 emails from Vonage and filed suit (on behalf of a putative class) alleging violations of California’s spam statute and the California Consumer Legal Remedies Act (a California unfair comp statute).  Plaintiff contended that: 

Vonage used . . . multiple domain names for the purpose of avoiding anti-spam mechanisms, and that the failure to identify Vonage in the domain name and to send mail from a single address constituted a misrepresentation. Specifically, [plaintiff] alleges that Vonage intended to mislead internet service providers that flag high volume senders and to make it more difficult for individual users to block unwanted emails.

No luck.  The court notes it’s probably unlikely that Vonage’s email tactics violated the California email statute.  Plaintiff did not allege that anything in the emails was really misleading to human beings – more that the emails sought to defeat spam filters.  As the court notes, the California legislature could have written the statute to cover this conduct, but failed to do so. 

More importantly, the court held the claims were in any event preempted by CAN-SPAM.  Somewhat startlingly (and without much analysis) the court notes although “Congress did not define the terms "falsity" or "deception," it is clear that it meant these terms to refer to traditional, tort-type concepts and not to innovative theories such as [plaintiff’s].”  The court rejects both plaintiff’s reliance on cases such as Gordon, and Vonage’s reliance on Mummagraphics.  According to the court, CAN-SPAM left in place state law tort claims that were “traditional” in nature.  The multiple domain name tactic had no “analogue outside the virtual world, because spam filters are a uniquely internet-based concept.”  Thus these claims were preempted.  [The court then disposes of the CRLA claim because the Complaint contained no allegation that plaintiff purchased (i.e., was a consumer of) any Vonage products.]

A few comments. 

First, plaintiff was represented by Hagens Berman, one of the more prolific (and/or prominent) class action firms in the country.  The fact that they are getting into the game and got shut out (here) are both worth noting.  I guess on the one hand, these lawsuits can be brought with little investment or investigation, on the other hand, courts are clamping down on plaintiffs’ efforts to capitalize.

Second, plaintiffs continue to try to sneak into state court and defendants continue to successfully use preemption as a club.  This dynamic is on the rise.  [Separately, I recall vaguely reading something about California wanting to have a strict liability spam statute.  Obviously that's untenable.]

Third, this is probably the right result, but still potentially appealable.  Much of the court’s “real world tort preemption” theory lacks support in the text or structure of the statute.  I see instinctively where this comes from but I'm not sure anything in CAN-SPAM supports it.  (Even a focus on "traditional torts" should not focus the preemption decision on "real world torts" vs virtual ones.)  The fact that the court didn’t just find this a straightforward application of Mummagraphics was odd.  Again, one never knows what the Ninth Circuit will seize on.  

Fourth, no discussion of the attorney’s fees issue.  It would not affect a firm such as Hagens and Berman, but as defendants continue to win suits, the attorney's fees issue will become an increasing focus.      
[Thanks to Prof. Goldman for the pointer.]

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