Tuesday, August 28, 2007

Interesting Developments in Anti-Spam Law – Gordon v. Virtumundo – CAN-SPAM Preempts Washington State Anti-Spam Law Causes of Action

The law in regard to CAN-SPAM’s preemption of state law causes of action continues to develop. On May 15, 2007, the United States District Court for the Western District of Washington at Seattle decided the case of Gordon v. Virtumundo, Case No.: 06-00204, the Court held that CAN-SPAM preempted a plaintiff’s claims under Washington State’s Commercial Electronic Mail Act: WASH. REV. CODE §§19.190.010–.110. The Court relied, in part, on the decision of the Fourth Circuit in the Omega World Travel v. Mummagraphics case. The Court specifically held that:

This Court agrees with the Omega court's assessment of congressional purpose as well as its preemption holding. Applying the Omega analysis here, the Court finds the following. Plaintiffs' allegations here are that “from addresses” ending, for example, with “vm-mail.com” do not suffice to make the header not false or misleading because they require one to figure out to whom or what “vmmail.com” refers-i.e., the message is not obviously from “Virtumundo.” The parties agree that identification can be achieved by reverse-look-up using, for example, the “WHOIS” database, which “is an Internet program that allows users to query a database of people and other Internet entities, such as domains, networks, and hosts.” Definitions, Implementation, and Reporting Requirements Under the CAN-SPAM Act; Proposed Rule, 70 Fed.Reg. 25,426, 25,446 n. 233 (May 12, 2005). The WHOIS database is maintained by domain registrars and “includes the registrant's company name, address, phone number, and e-mail address.” Id. Plaintiffs do not dispute that WHOIS data can identify Defendants, and they have pointed to no e-mails that fail to provide information useful to a correct WHOIS look-up. Plaintiffs instead contend that this extra step should not be required of consumers. Regardless of the merits of that argument, the Court cannot find that “from addresses” ending with a domain that facilitates an accurate identification of Defendants could in any sense be found “false” or “deceptive.” Accordingly, while claims actually alleging falsity or deception under CEMA would not be preempted, Plaintiffs' claims here-for, at best, “incomplete” or less than comprehensive information-are for immaterial errors that may not be litigated under state law. Plaintiffs have not raised any issues of material fact that could prove Defendants' e-mails materially “false or deceptive” as those terms are used in the CAN-SPAM Act. Accordingly, Plaintiffs' CEMA claims are preempted by CAN-SPAM.
It seems that a consensus is building in regard to CAN-SPAM’s preemption of state law causes of action that are not based on traditional fraud claims of actual injury suffered by the plaintiff seeking to enforce the law.

Thursday, August 23, 2007

Business Litigation - New Case on CAN-SPAM's Preemption of State Anti-Spam Law Claims

Another case in the burgeoning case law in regard to CAN-SPAM’s preemption of state law claims for alleged spamming activity has been decided. In Kleffman v. Vonage Holdings Corp., decided on May 23, 2007 by the United States District Court for the Central District of California, the Court held that a plaintiff’s claims that he received 11 emails advertising Vonage’s telephone service in violation of the California Business and Professions Code Section 17529.5 were preempted by CAN-SPAM.

Specifically, the Court held that Kleffman’s claims were “clearly preempted” because “He does not allege a traditional tort theory at all, or even that he was at any point misle[d] by any of the eleven Vonage emails.”

The decision is based on reasoning similar to that set forth in the case of Omega World Travel v. Mummagraphics see earlier post here a 2006 decision by the United States Court of Appeals for the Fourth Circuit (which is the Federal Appeals Court for, inter alia, Maryland and Virginia). Even though the Kleffman Court’s opinion relied on the same underlying authorities as the Mummagraphics opinion, the Court distinguished Mummagraphics and seemed to try and limit its holding. The Kleffman case is now on appeal to the United States Court of Appeals for the Ninth Circuit. A copy of the Court’s opinion will be made available soon.

Wednesday, August 22, 2007

Business Law - New Maryland Landlord Tenant Case Law

On August 22, 2007, the Maryland Court of Appeals ruled in the Hanna v. ARE Acquisitions, LLC that a commercial landlord could not maintain an action against the owners of a former tenant for trespass where the tenant allowed a substantial amount of property to remain in the leased premises after the tenant vacated the premises. The Circuit Court for Mongtomery County, Maryland had ruled in favor of the owners of the tenant and the landlord appealed to the Court of Special Appeals of Maryland. The Court of Special Appeals reversed, holding that the landlord was allowed to sue for trespass. The Court of Appeals reversed the Court of Special Appeals, and held that there cannot be a cause of action for trespass under circumstances where property is left in a leased premises. The Court reasoned that there cannot be a trespass where the property came into the premises during the tenant's posession of the premises. A copy of the opinion can be accessed on the Maryland Judiciary website:

Tuesday, August 7, 2007

District Court of Maryland for Montgomery County - New Cellphone & Camera Policy

The District Court of Maryland for Montgomery County recently issued a new policy on the use of cellphones and cameras in its two courthouses. The policy is as follows:

This policy applies to everyone using a courthouse facility in Montgomery County, including attorneys (public or private), police officers and court employees.
A violation of this policy can result in the confiscation of the phone and/or ejection of the violator.
1. A person may possess a cell phone in a courtroom only if the phone is on a belt clip, in a pocket, briefcase or handbag.
2. Cell phones must be in the off or silent position at all times while in the courtroom.
3. Cell phones may not be removed from a pocket, clip, briefcase or handbag at any time while in the courtroom unless removal of the cell phone is authorized by the presiding judge.
4. The wearing of Bluetooth earpieces or other similar cell phone accessories is prohibited in the courtroom at all times.
5. Taking of photographs by cell phone or otherwise is prohibited anyplace in the Courthouse at all times.
6. Use of cell phones at clerk window stations is prohibited at all times.
7. Any violation of this cell phone policy may result in confiscation of the cell phone.
8. Any cell phone which has been confiscated and which has not been claimed within thirty days of the date of confiscation shall be donated to sheriff’s office for use in the domestic violence program.
9. The bailiff will not accept or hold anyone’s cell phone or other property while that person attends Court. Any property left unattended shall be deemed abandoned property, and subject to be disposed of by the Bailiff.