E-mail marketers, who frankly have had little to smile about the past few years, can at least take comfort in the gradual accumulation of cases giving a broad reading to the CAN-SPAM Act's state-law preemption provision. If this trend continues, state legislatures will have almost no room to regulate beyond the modest set of e-mail restrictions negotiated by direct marketers in the process leading up to the CAN-SPAM Act.
The Fourth Circuit's ruling in Omega World Travel Inc. v. Mummagraphics Inc., No. 05-2080 (4th Cir., Nov. 17, 2006) (state cause of action for "immaterial" errors in header information preempted by CAN-SPAM), was followed recently by Gordon v. Virtumundo Inc., No. 06-204 (W.D. Wash., May 15, 2007) (to extent that marketer's use of vm-mail.com as "from" address was materially misleading under state law, law was preempted by CAN-SPAM).
A third case recently came down, holding that a state-law challenge to an e-mail marketer's tactic of launching messages from multiple domain names is preempted by the federal CAN-SPAM Act. The case is Kleffman v. Vonage Holdings Corp., No. 07-2406 (C.D. Cal., May 22, 2007).
California law gives anyone a cause of action to sue marketers whose messages are "accompanied by falsified, misrepresented, or forged header information." Cal. Business & Professions Code 17529.5. According to Kleffman, Vonage employed numerous e-mail addresses to originate its messages in order to evade spam filters. Kleffman contended that this tactic was misleading under California law.
The Kleffman court ruled that the plain language of the California statute would not support the plaintiff's novel theory, but, assuming that California law did outlaw Vonage's tactic, the law would be preempted by CAN-SPAM. The court remarked that CAN-SPAM's preemption provision "left states room only to extend their traditional fraud prohibitions to the realm of commercial emails because it was confident that legitimate businesses would not unwittingly transgress such well-established prohibitions."
The court ascribed to Congress a sensitivity to the needs of e-mail marketers, stating that Congress did not want to them to have to guess at the meaning of state e-mail restrictions. Theories like the one advanced by the plaintiff -- e.g., the use of multiple but accurate "from" addresses is unlawful because it diminishes the effectiveness of spam filters -- seemed to the court to be the kind of claim Congress did not want marketers to have to beat back on a state-by-state basis.
Before parting, the court, in a footnote, challenged the reasoning of a pair of early cases rejecting CAN-SPAM preemption arguments. These cases, the court said, "merely compared the language of the statues at issue to the savings clause, as opposed to examining the nature of the plaintiffs' theory of liability. See Gordon v. Impulse Mktg. Group, 375 F. Supp.2d 1040, 1045-46 (E.D. Wash. 2005); Beyond Sys. v. Keynetics Inc., 422 F. Supp.2d 523, 535 (D. Md. 2005). The Supreme Court has indicated that this method is improper. See Cippollone v. Liggett Group, 505 U.S. 504, 523-24 (1992)."
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