CAN-SPAM Preempts Ohio Email Statute

I'm starting to think CAN-SPAM cases should be grouped by litigants rather than by legal issues? 

A federal court in Ohio resolve a motion to dismiss filed by the defendants in Ferron v. Subscriberbase Holdings, Inc. (copy of the order: [pdf]) (h/t Prof. Goldman).  The court's order shows how courts continue to struggle with the preemption question.  (Truth be told, the court did a nice job of laying out the preemption background.)  Ferron - no stranger to this litigation - brought at least five other cases involving different defendants.  Here, Ferron asserted claims under Ohio's email statute, Ohio's consumer protection statute, and brought a claim for destruction of evidence.  The court finds the Ohio email claim preempted but allows Ferron to proceed on the consumer protection act claim (and gives Ferron the heads up that he's free to conduct discovery on the spoliation claim and add it later if he unearths sufficient evidence).

Preemption of Ohio Email Statute:  the court notes that CAN SPAM contains express preemption language.  The language provides that any state law which expressly regulates email is preempted except to the extent it prohibits falsity or deception.  The statute provides an exception (somewhat superfluous) for laws which are not specific to email and which "relate to acts of fraud or computer crime."  (15 USC 7707(b)(1) & (2).)  The court canvasses the cases (principally Mummagraphics) and concludes that the Ohio email statute (Ohio Rev. Code 2307.64(B)(1)) is preempted because it requires inclusion of certain information and does not speak to falsity or deception, much less material falsity.  No big surprise here.  State email statutes which mandate the inclusion of information are probably all preempted. 

Ohio Consumer Sales Practices Act
:  Ferron also brought a claim alleging that the emails he received "appeared" to offer free goods, but in reality "these offers for 'free' goods and services [were] contingent upon participation in another offer that was not free."  The court (in my mind) correctly rules that this claim was not preempted by CAN-SPAM.  It's not an email based claim.  Ferron is alleging a consumer protection violation that just happened to take place over email.  As to the merits of the claim?  The court doesn't really take a closer look or dig in at all with respect to the Rule 9 (specificity) argument raised by Defendants.  The court notes that reliance (by Ferron) is not an element of a claim under the OCSPA.  I would guess at the end of the day Ferron would have to show some element of reasonable reliance.  I'm surprised the court didn't just hold Ferron's feet to the fire at this stage in the litigation.  (Courts don't seem to be colored at all by the fact that plaintiffs often bring a slew of email-based lawsuits.  This is surprising to me.)  If the statute requires subjective reliance, I'm wondering how Ferron's status as a lawyer plays into things?

Destruction of Evidence
:  Ferron alleged that defendants took down and destroyed webpages once they got wind of Ferron's claims.  The court finds Ferron failed to plead destruction with the requisite specificity (or failed to plead facts sufficient to cover all elements of the claim).  It's tough to say whether this claim will succeed in the end - I'm guessing it won't.  There's probably a copy of the webpage accessible somewhere, even if it's not online.  Second, regardless of what the law says on this issue, obviously it makes sense for someone to take down a webpage which is the subject of a threatening letter (which alleges the emails coupled with the webpages are misleading).  Am I off-base on this one?


Nothing too earth-shattering going on here.  I'm eagerly awaiting for the Ninth Circuit to issue its ruling in Virtumundo.  (I suspect others are as well!)

Note to Lexis:  your alert system is a complete failure.  This is probably the 10th case that a Westlaw alert recipient has forwarded me (no sign of this in my Lexis alerts).  If Westlaw has the case in its database why doesn't Lexis??
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