Asis Internet Services v ConsumerBargainGiveaways, LLC.
2009 WL 1035538 (N.D.Cal.)
Facts:
Plaintiffs Asis and Foggy provide dial-up internet and email service to a small customer base in rural or remote areas where high-speed services are unavailable. Plaintiffs allege that defendants advertised in hundreds of email promotions sent to their computers that either (a) contained falsified header information, or (b) contained a subject line that would be likely to mislead a recipient. Defendants allegedly advertised in 597 such emails sent to Asis' computers and 331 such emails sent to Foggy's computers.
The email advertisements contained subject lines suggesting a free gift or prize; however, the gifts were not free because the recipient was required to make a purchase or open a new credit card in order to receive the gift. The requirement were included at the end of the email or on a separate page accessible only after the recipient provided personal information. Also, email headers were falsified in order to conceal who the messages were from.
Procedural Posture:
Plaintiffs sue under Section 17529.5(a), which provides: (a) It is unlawful for any person to advertise in a commercial e-mail advertisement…under any of the following circumstances: (2) The e-mail advertisement contains or is accompanied by falsified, misrepresented, or forged header information. Defendants claim that the CAN-SPAM Act’s preemption provision saves from preemption only state laws that prohibit “falsity or deceptionâ€. Defendant’s motion to dismiss the complaint on preemption grounds is denied.
Defendants argue that, under California rule, the plaintiffs must establish not only that the emails were discovered within one year but they should not reasonably have been discovered earlier. The plaintiffs failed to make such a showing and therefore defendants’ motion to dismiss in part on this basis was granted.
Holding:
Defendant’s motion to dismiss is granted in part and denied in part.
Analysis:
There are still issues to be considered regarding the preemption of state laws, specifically California’s strict spam laws, and the CAN-SPAM Act. Also, this case shows that if evidence of falsified email headers and deceptive advertising practices are found they should be brought to the attention of the court in a timely manner.
2009 WL 1035538 (N.D.Cal.)
Facts:
Plaintiffs Asis and Foggy provide dial-up internet and email service to a small customer base in rural or remote areas where high-speed services are unavailable. Plaintiffs allege that defendants advertised in hundreds of email promotions sent to their computers that either (a) contained falsified header information, or (b) contained a subject line that would be likely to mislead a recipient. Defendants allegedly advertised in 597 such emails sent to Asis' computers and 331 such emails sent to Foggy's computers.
The email advertisements contained subject lines suggesting a free gift or prize; however, the gifts were not free because the recipient was required to make a purchase or open a new credit card in order to receive the gift. The requirement were included at the end of the email or on a separate page accessible only after the recipient provided personal information. Also, email headers were falsified in order to conceal who the messages were from.
Procedural Posture:
Plaintiffs sue under Section 17529.5(a), which provides: (a) It is unlawful for any person to advertise in a commercial e-mail advertisement…under any of the following circumstances: (2) The e-mail advertisement contains or is accompanied by falsified, misrepresented, or forged header information. Defendants claim that the CAN-SPAM Act’s preemption provision saves from preemption only state laws that prohibit “falsity or deceptionâ€. Defendant’s motion to dismiss the complaint on preemption grounds is denied.
Defendants argue that, under California rule, the plaintiffs must establish not only that the emails were discovered within one year but they should not reasonably have been discovered earlier. The plaintiffs failed to make such a showing and therefore defendants’ motion to dismiss in part on this basis was granted.
Holding:
Defendant’s motion to dismiss is granted in part and denied in part.
Analysis:
There are still issues to be considered regarding the preemption of state laws, specifically California’s strict spam laws, and the CAN-SPAM Act. Also, this case shows that if evidence of falsified email headers and deceptive advertising practices are found they should be brought to the attention of the court in a timely manner.