Though I’ve been closely monitoring anti-spam litigation, and I’ve been telling you things are shifting, even I’m surprised by the pace. It seems like new cases deciding against overly aggressive anti-spammers are coming down weekly. I’ve just gotten word of a new one.
In the United States District Court for the Central District of California, the Court today decided against the Plaintiff in the matter of Kleffman v. Vonage Holdings Corp., et al. There are a lot of legal details, but we’ll save those for the lawyers and instead, I’ll give you the layperson’s summary.
In this case, the Plaintiff, Kleffman, received eleven emails for Vonage services which contained hotlinks to its website. The advertisements contained differing headers, each with some variation on the words "GreatCallRates" in the subject line and each sent from a different domain name.
Kleffman contended that Vonage used the 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, Kleffman alleged that Vonage intended to mislead ISPs that flag high volume senders and to make it more difficult for individual users to block unwanted emails. He claimed Vonage violated California Business and Professions Code section 17529.5, and also the California Consumer Legal Remedies Act ("CRLA").
Unfortunately for Kleffman, the Court agreed with Vonage’s position that because Kleffman never actually alleged that the content of Vonage’s email was false, misleading or forged, he had not even stated a case against the company. The Court said that while he "might characterize an email as containing the implicit misrepresentation, ‘I am not from the same source as the others,’" the Court concluded that this interpretation was far more than the "plain language of the statute would bear." Importantly, the Court also concluded that the CAN-SPAM Act preempts such an interpretation.
Regarding the CRLA claim, the Court found that Kleffman lacked standing to bring the claim because he is not a "consumer" under the statute, as he never sought Vonage’s phone services.
The Court’s ruling was the result of what is known as a 12(b)6) motion by Vonage. This motion requests that a court dismiss a plaintiff’s case because they have completely failed to make a claim upon which relief may be granted. A court may not dismiss a complaint for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." This means that the Court accepted all of Kleffman’s factual allegations in the complaint as true, and construed them in the light most favorable to him. Even under this very forgiving standard, the Court found that Kleffman failed to state a claim.
So another anti-spammer has been shut down by a U.S. District Court. What does it all mean? From my perspective it means that the Courts seem to be uniformly saying that they will not allow anti-spammers to use legitimate laws as blunt hammers of intimidation and blackmail. And the more companies that stand up to this sort of intimidation with solid legal defenses, and even counter accusations of defamation (see last week’s column), the less we’ll all hear from the illegitimate anti-spammers who are just out to milk settlement dollars out of reputable companies.
In closing, I’d like to make something very clear; I’m in full support of the legitimate anti-spam community. Having people and organizations who police these things because they are passionate about protecting the web is a good thing for all concerned. Legitimate members of the anti-spam community understand the law, and are not filing bogus lawsuits, or looking to make a living out of shaking down law abiding companies. Plaintiffs like those covered recently in this column give the legitimate anti-spam community a bad name. Legitimate anti-spammers, and legitimate advertisers and publishers should be celebrating the recent District Court trend together.
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Come back to the iLegal column every week as we get specific about the rules, regulations, laws and trends that affect the online advertising industry. Each week we discuss important legal issues, talk about how to avoid the pitfalls, and cover the breaking legal and regulatory advertising industry news.
Legal Disclaimer: Information conveyed in this column is provided for informational purposes only and does not constitute legal advice. These materials do not necessarily reflect the opinions of Digital Moses, and is not guaranteed to be complete, correct, or up-to-date. The column is provided for "information purposes" only and should not be relied upon as "legal advice." This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this column without seeking the advice of an attorney.
Mark Meckler is the General Counsel for UniqueLeads.com, Inc., and Unique Lists, Inc.
Copyright 2007 Mark J. Meckler
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