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California Court of Appeal Email Compliance Ruling on the Issue of Identifying Sender in Body of Commercial Email

The case is Roslowski et al. (“Plaintiffs”) v. Guthy-Renker LLC (“Guthy”). The gravamen of the allegations were that Guthy sent Plaintiffs unsolicited commercial email advertisements which, instead of identifying the sender as Guthy, indicated the sender was “Proactiv Special Offer,” “Wen Hair Care,” “Proactiv Special Bonus Deal,” “Wen Healthy Hair,” “Wen by Chaz Dean,” “Proactiv Bonus Deal,” “Proactiv Bonus Gift,” and “Proactiv: Special Offer,” which are not names or registered fictitious business names of existing entities, and are not traceable to Guthy via a WHOIS search.

Further, the emails contained “subject” lines stating Plaintiffs were entitled “to a free or complimentary gift without mentioning that the gift was contingent upon a purchase.”

The first amended complaint was filed on behalf of lead plaintiff Greg Rosolowski and 45 individual co-plaintiffs, who collectively sought to be class representatives to represent a larger class. A number of the allegedly offending emails were attached as exhibits to the pleading. For example, Exhibit A included an email bearing the subject line “Exclusive WEN Deal: Complimentary Shipping,” and it originated “From: Wen Hair Care (”

Guthy demurred, contending Plaintiffs’ claims should be dismissed because they failed to state a cause of action, and that the claims were preempted by federal law, specifically, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 U.S.C. § 7701 et seq.) (the CAN-SPAM Act), which preempts claims under section 17529.5, unless header or subject lines are materially false or misleading; the “from” lines contained famous brand names, identified with Guthy, the business entity whose name and address were set forth in the body of the same email; and the subject lines of the emails accurately referred to a “free” or “complimentary” gift and were not actionable.

In opposition, Plaintiffs argued the emails violated section 17529.5, subdivision (a)(2), in that the names appearing on the “from” lines could not be traced to Guthy by way of an online database such as WHOIS, and also violated section 17529.5, subdivision (a)(3) because the subject lines represented the recipients were entitled to a free or complimentary gift, without mentioning such gift was contingent upon a purchase. Plaintiffs further contended their claims were not preempted by the federal CAN-SPAM Act due to material deception.

The trial court sustained the demurrer. Plaintiffs and appellants Greg Rosolowski et al. appealed.

The Court of Appeal of the State of California, Second Appellate District, affirmed the judgment of dismissal on the basis that no cause of action was stated for violation of section 17529.5, subdivision (a)(2) (misrepresented header information) or subdivision (a)(3) (misleading subject line).

The Court’s rationale, was as follows:

The claims, as pled, set up theories that: (i) the email “header information” used by defendants was falsified, misrepresented, or forged within the meaning of section 17529.5, subdivision (a)(2); and (ii) the “subject line” was one the sender “knows would be likely to deceive a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message” within the meaning of section 17529.5, subdivision (a)(3).

The Court opined…

“Since the ‘Sender’ line does not identify defendant Guthy-Renker by name and instead uses the name of defendant’s various products, [Plaintiffs] collectively allege ‘its spams say they are coming from people and companies that don’t even exist.’ . . . This is akin to complaining that an email from ‘Buick’ is falsely labeled because, in [Plaintiffs’] view, the sender should read ‘General Motors Corporation.’”

Despite Plaintiffs’ protestations that they were duped by these emails, the Court held as a matter of law that a reasonable sender would not have reason to believe that commercial missives like these were “likely to deceive a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”

Notably, the Court also held that irrespective of the allegedly untraceable domain names, names that are not names of existing companies or persons, the identity of the sender was readily ascertainable from the body of the emails.

Although the identity of the sender of the subject emails in the “from” line could not be ascertained through the use of a publicly available database such as WHOIS, the body of the emails was sufficient to enable the recipient to identify Guthy as the sender. The emails were advertisements for Guthy’s various consumer brands. The emails provided a hyperlink to Guthy’s website, and provided an unsubscribe notice as well as a physical address in Palm Desert, California.

The Court held that Plaintiffs could not plausibly allege that Guthy attempted to conceal its identity, as the clear purpose of emails was to drive traffic to Guthy’s website.

Giving 17529.5, subdivision (a)(3) a commonsense reading, the Court also concluded that the subject lines were not likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message. The email advertisements plainly and conspicuously stated the conditional nature of the offer, so that an email recipient, acting reasonably under the circumstances, would not be misled about a material fact with respect to the nature of the offer of a free gift or free shipping. Here, the Court viewed an email’s subject line in conjunction with the body of the email, rather than in isolation.

Because the court found that the emails did not violate the California statute, the court did not reach the issue of CAN-SPAM pre-emption.

Contact an experienced SPAM law attorney to ensure that you are compliant with state and federal email marketing regulations, or if you are faced with an email marketing litigation matter.

(Thanks to attorney Robert Nunnally for the heads-up on the ruling).

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.

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Richard B. Newman

Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on advertising law, Internet marketing compliance, regulatory defense and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

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