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Spam Law Update - Guidance for Advertisers, Ad Networks and Mailers
Kronenberger Rosenfeld is at the forefront of spam litigation, helping define the law.
Today, it is hard to find a business that does not rely on commercial email to advertise its products or services. All such businesses must comply with federal and state spam laws or risk being drawn into costly lawsuits. Spam lawsuits are especially dangerous because the laws often allow a successful plaintiff to recover “statutory damages” without proving that the plaintiff suffered any actual damages. This means that a simple act of sending a few thousand emails can result in a multi-million dollar lawsuit. Additionally, because the advertiser in an email is often not the sender of the email, the advertiser can find itself in a spam dispute without any specific knowledge of the alleged misconduct.
We are aggressive and tech-savvy in our approach to combating what some call spam “shake-down” operations.
We have represented advertisers, ad networks, and affiliate publishers in negotiating a multitude of settlements of spam lawsuits and settlements during pre-litigation threats to file spam lawsuits. This experience provides the firm with unmatched insight into a great variety of settlement strategies, appropriate settlement amounts, and styles of particular professional spam plaintiffs and their attorneys.
PRECEDENT SETTERS IN SPAM LITIGATION
While state and federal spam statutes are relatively young, a robust array of case law and other authority is quickly developing. And spam litigation continues to grow in courts throughout the country. Kronenberger Rosenfeld has been at the forefront of spam litigation since the enactment of the federal CAN-SPAM law and California's anti-spam law in 2003. We are leading the industry in interpreting these laws and educating courts that commercial email by itself is not unlawful. Rather, commercial email is an important aspect of our economy, and it only becomes unlawful when it is deceptive.
Kronenberger Rosenfeld has defended more than 100 separate spam law cases, including in both federal and state courts, brought by plaintiffs in California, Georgia, Washington, Ohio, Florida, and other states. This is perhaps more than any other spam litigation defense law firm in the country. The firm’s attorneys have been invited to speak at state and national organizations about both email and SMS spam litigation trends, litigation strategies, and case law updates. Most importantly, our firm has achieved excellent litigation results for our clients in spam litigation, reflected in victories at motions to dismiss and motions for summary judgment, some of which we defended and upheld on appeal. This spam litigation experience translates directly into lower costs and top results for our clients.
- Represented a major internet advertising network in $11 million federal spam lawsuit by a professional spam plaintiff. The firm prevailed on behalf of the client at a summary judgment on all claims in the lawsuit and obtained an order awarding more than $806,000 in fees and sanctions against the professional spam plaintiff, which pushed the plaintiff into insolvency and caused them to cease operations.
- Prevailed on a motion to dismiss on behalf of multiple defendants named in $400 million spam lawsuit brought by a major Washington, DC law firm.
- Represented owners of a popular online dating website against professional spam plaintiff in a $19 million California spam lawsuit. The firm obtained a full dismissal with prejudice for one of our clients at summary judgment, and the rest of the case resolved shortly thereafter.
- Represented a billion dollar clothing retailer in a dispute with its ISP and Spamhaus.
- Represented multiple Internet marketers in disputes with Spamhaus and in developing compliance programs to avoid Spamhaus disputes.
- Prevailed on behalf of an advertising network and against professional plaintiff ISP before the Ninth Circuit Court of Appeals in CAN-SPAM and section 17529.5 lawsuit. After oral argument, the Ninth Circuit affirmed the trial court’s ruling that a heightened standard applies to non-senders of emails accused of violating CAN-SPAM.
- Represented an ad network before the Ninth Circuit in the plaintiff’s appeal of the dismissal of its multi-million dollar spam lawsuit. After oral argument, the Ninth Circuit adopted the firm’s arguments in total and affirmed dismissal. Among other things, the Ninth Circuit set spam law precedent by applying the firm’s argument that a one year statute of limitations applied to section 17529.5 spam lawsuits that seek statutory damages.
- Represented an online advertiser in $5 million spam lawsuit before the Northern District of California. The firm prevailed in a motion to dismiss, where the Court defined the contours of CAN-SPAM’s preemption clause, indicating that a violation of section 17529.5 must be both knowing and material. This position on CAN-SPAM preemption continues to be the most defendant-friendly position in spam jurisprudence.
- Represented an online advertiser in $1 million spam lawsuit brought under section 17529.5 in the Northern District of California. The firm obtained dismissal of the plaintiff’s lawsuit at the pleading stage where the Court continued to adopt our firm’s argument that any violation of section 17529.5 must be known and materialized in order to avoid CAN-SPAM preemption.
- Represented online marketers against a professional spam plaintiff in an Ohio spam lawsuit, securing a complete dismissal of the case prior to the discovery phase of the case.
- Represented a payday loan lead generator in multiple California spam matters, with allegations of more than $1 million in damages, resulting in a settlement of each matter favorably for the client.
- Represented merchant of personalized consumer goods in putative spam class action. The plaintiff alleged that the firm’s client had sent over 10,000 emails with deceptive subject lines, which falsely claimed that the recipients had received an award. The firm prevailed on its motion to dismiss the entire case with prejudice at the pleadings stage, which included a judicial opinion containing the most thorough discussion to date of unlawful subject lines.