Bad News: Advertisers Liable Under California’s Anti-Commercial-Spam Law
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Bad News: Advertisers Liable Under California’s Anti-Commercial-Spam Law


On March 4th, 2013, in the matter of Bank v. American Home Shield Corp., the U.S. District Court for the Eastern District of New York ruled that California’s law barring commercial email advertisements that contain materially deceptive subject lines applies to parties who advertise in the emails, not just those who send them.

In addressing defendant American Home Shield Corporation’s motion to dismiss a purported class action under California’s anti-commercial-spam law, the court opined that liability under California Business & Professions Code §17529.5 is premised on advertising, not sending.  It also cited Hypertouch Inc. v. ValueClick Inc. in support of its decision and held that California follows the general common law rule that a principal is as liable for the acts he directs as he would be if he acted himself.

Also of interest is that American Home Shield argued that the complaint could not possibly meet the federal class action amount-in-controversy threshold of $5 million under the Class Action Fairness Act because the California statute caps recovery at $1 million per incident.  More specifically, AHS’ position was that the statute means per single email, irrespective of the number of recipients.  However, no California court has adopted that statutory interpretation.

Lastly, the court also rejected the argument that for an email to be subject to the California law the allegedly misleading information must be within the four corners of the message itself.  The message was misleading because the subject line read “Roof Repair Made Easy” and implied information about roof repairs.  However, the target of a hyperlink within the message actually led to a home warranty application.

Thus, the two were incongruent.  The statute requires a consideration of whether a recipient acting reasonably under the circumstances could be misled.

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.

Written by Richard B. Newman

Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on Internet law, online marketing compliance, regulatory defense and digital media matters. His practice includes complex commercial litigation defense, SPAM law compliance and litigation defense, intellectual property transactional and litigation matters, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.

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  • Informative post!CAN-SPAM defines a “commercial electronic mail message” as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” It exempts “transactional or relationship messages” (wikipedia, 2013). Through this law, A significant decrease in sexually-explicit e-mail was also reported. There are a lot of considerations for a person to have such criminal offense. Thank you for this interesting post. I absolutely can relate to this.

  • Cory says:

    Laws like these are subject to amendment to make the provisions clear enough and to delineate the exact liabilities of every party involved. We cannot construe a law haphazardly just so it will serve our purpose.

  • JaketheSnake says:

    California has always been the land of complete idiot judges and liberal politicians that have no idea what they word SUPREME COURT means. Fuck em.

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