California State Court Tosses Spam Suit

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

In yet another case involving state spam laws, a California state court judge dismissed a lawsuit involving email header information under the state’s spam laws.

Five individuals brought an action against Digital Media Solutions LLC and Bilco Media Inc. alleging that the defendants and their marketing partners sent them at least 282 unsolicited commercial emails in violation of California’s Business & Professions Code Section 17529.5(a)(2). That provision makes it “unlawful for any person or entity to advertise in a commercial email advertisement either sent from California or sent to a California electronic mail address” where “[t]he e-mail advertisement contains or is accompanied by falsified, misrepresented or forged header information.” The plaintiffs asked for liquidated damages of $1,000 per message.

In the exemplar provided in the plaintiffs’ complaint, the subject line of one email listed the recipient’s email address followed by the words “please confirm your extended warranty plan,” and the “from” line of the email stated, “Vehicle Service Plan,” followed by an email address (

Although California’s spam statute, like other state spam statutes, provides for a cause of action based on misleading subject lines, curiously the plaintiffs only focused on the header information provision of the statute and stated three claims based on this header information: (i) the “From Name” constituted “falsified, misrepresented, or forged header information” because it contains a generic phrase, “Vehicle Service Plan,” and not a real company, brand or trademark that could be traced back to the true sender/owner; (ii) the sender domain names misrepresented who sent the messages because they did not identify an entity traceable via a publicly searchable online database; and (iii) the “Subject Line” contained falsified or misrepresented information.

Digital Media Solutions, whose warranty product was being advertised in the emails at issue, filed a demurrer, which Judge Ethan P. Schulman sustained.

He reviewed case law under the statute, relying heavily on a 2014 Court of Appeals decision in Rosolowski v. Guthy-Renker LLC.

In that case, the appellate panel held that a header line in a commercial email advertisement did not misrepresent the identity of the sender “merely because it does not identify the official name of the entity which sent the email, or merely because it does not identify an entity whose domain name is traceable from an online database, provided the sender’s identity is readily ascertainable from the body of the email.”

Judge Schulman noted that the exemplar email provided by the plaintiffs in the complaint listed the apparent sender as a company called “Transparent Auto Warranty” with an address in Boca Raton, Florida, that the plaintiffs admitted was either an affiliate or fictitious name utilized by the defendant. The plaintiffs also alleged that if recipients click in the body of the emails, a link takes them to the defendant’s “Platinum Auto Warranty” website, where they are encouraged to make a purchase.

“In short, because the recipients of the emails of which Plaintiffs complain could readily identify Defendant, the advertiser and ultimate ‘sender,’ from the body of those emails, Rosolowski is controlling,” the court wrote.

The court also found no merit in the plaintiffs’ claim that the subject line of the emails constituted falsified or misrepresented header information, as subject lines are not considered part of an email’s “header information” within the meaning of the statute and are instead covered by a different provision. However, the court left open the possibility that the plaintiffs could amend the complaint to challenge the subject line of the email messages under Business & Professions Code Section 17529.5(a)(3), which makes it unlawful to send an email advertisement that has a “subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”

To read the order in Greenberg v. Digital Media Solutions, LLC, click here.

Why it matters: In a victory for email marketers, the California trial court relied on the Rosolowski decision to consider the body of the emails at issue when determining whether the header of the message ran afoul of the state’s anti-spam law. While this recent victory reinforces at least California courts’ willingness to give marketers more latitude in using creative header information, it is worth noting that state spam statutes continue to be a popular basis for consumer lawsuits involving unsolicited emails. Marketers should carefully review all elements of email advertisements, and especially the subject lines, to ensure that they are not misleading as to the identity of the sender/advertiser or the content or subject matter of the emails.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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