Issues of Fact Regarding Material Misrepresentations In SPAM E-Mails Defeats Summary Judgment

On October 10, 2014, a federal district court judge in the matter of Wagner v. Digital Publ’g Corp. ruled that a triable issue of fact on whether the “from” names, domain names and subject lines of four SPAM e-mails contained material misstatements precluded partial summary judgment on plaintiff’s state law claims.

Plaintiff Christopher Wagner sued multiple defendants, claiming they sent 49 SPAM messages to his e-mail account.  Wagner alleged that those SPAM e-mails contained “materially falsified, misrepresented, and/or forged information” in violation of Cal. Bus. & Prof. Code §§ 17529.5 and 17538.5.

The issue presented was whether “falsity or deception,” as used in the CAN-SPAM Act, requires a showing of certain elements of common law fraud, such as material representation, to avoid preemption of the plaintiff’s claims under California’s anti-SPAM law.

The CAN-SPAM Act preempts state statutes that regulate the use of e-mail to send commercial messages unless those statutes prohibit “falsity or deception.”  Here, the court looked to two federal appellate opinions in examining how the statute would affect the plaintiff’s state law claims.

On March 3, the court granted partial summary judgment for Wagner, holding that he did not need to plead reliance or damages in order to avoid preemption of his state law claims under the federal CAN-SPAM Act.

Wagner then filed a second motion for partial summary judgment on four SPAM e-mails sent by defendant Spire Vision Holdings Inc.  He argued that the headers of the e-mails did not identify who sent the SPAM messages, the headers contained inaccurate domain names that did not identify or easily trace back to Spire Vision and the subject lines of three of the e-mails were false and misleading.

The court denied Wagner’s second motion.

Key takeaways:

  • It was unclear whether the e-mails contained material misrepresentations;
  • There were genuine issues of material fact as to whether the companies listed as the reported registrants for the domain names from which the four e-mails originated were legal entities when the e-mails were sent;
  • Unlike in Balsam v. Trancos, there was no evidence here that defendants used privately registered domain names to hide their identities in connection with the four SPA e-mails; and
  • While the subject lines at issue suggested that a recipient would get the gift card in exchange for taking a survey, a reasonable juror could also have found that the subject lines were too good to be true, and that they were not ‘likely to mislead’ a recipient into thinking that all that needed to be done was to take the survey to get the gift card.

Consult with an experienced SPAM defense attorney for more information regarding e-mail marketing compliance and the commercial e-mail litigation landscape.

Information conveyed in this article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.

Richard B. Newman
Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on advertising law, Internet marketing compliance, regulatory defense and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

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