Antitrust Law Daily Wrap Up, ADVERTISING—CalCtApp: Dismissal of California Anti-Spam Act claim affirmed on appeal, (Jun 3, 2015)

By Michael Menzhuber, J.D., LL.M.

Dismissal of a consumer’s California Anti-Spam Act claim, based on retail companies’ sending approximately 375 “misleading” and “confusing” e-mails, was affirmed by the California Court of Appeal in San Francisco (DeWitt v. Foot Locker Retail, Inc., May 28, 2015, Jones, P.J.).

Timothy A. DeWitt allegedly received 345 to 355 unsolicited commercial e-mail advertisements from Foot Locker Retail, Inc. and 30 to 35 commercial e-mail advertisements from 1Ink. DeWitt brought an action in federal district court which alleged that the e-mails violated Bus. & Prof. Code § 17529.5 (California Anti-Spam Act) because they contained misleading generic header information and used a confusing and misleading domain name.

Foot Locker and 1Ink demurred separately but both argued that DeWitt’s complaint failed to state a claim for violation of the California Spam Act. They also both argued that DeWitt’s derivative negligence and declaratory relief claims failed and that there was no basis to join the defendants in one action. 1Ink also argued that the California Anti-Spam Act was preempted by 15 U.S.C. § 7701 et seq. (federal CAN-SPAM Act). DeWitt opposed the demurrers but did not seek leave to amend. The defendants’ demurrers were sustained without leave to amend

The court noted that, to state a claim under the California Anti-Spam Act, the e-mail advertisement: (1) must contain or be accompanied by falsified, misrepresented, or forged header information (Bus. & Prof. Code § 17529.5(a)(2)); or (2) have a subject line that a person knows would be likely to mislead a recipient acting under reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message (Bus. & Prof. Code § 17529.5(a)(3)).

The court determined that DeWitt’s complaint did not allege facts sufficient to state a claim under section 17529.5(a)(2). DeWitt’s complaint alleged that the e-mails he received contained “misleading” and “confusing” header information. However, the court noted that there was no cognizable claim based on “misleading” and “confusing” and that “misrepresented” under section 17529.5(a) does not mean “misleading.” The court further noted that the originating e-mail address clearly identified the sender and, even if it didn’t, the sender’s identity was readily ascertainable from the body of the e-mail.

The court found that DeWitt’s complaint did not allege facts sufficient to state a claim under section 17529.5(a)(3) because the subject line in the e-mail attached to the complaint referred to the product advertised in the e-mail. Therefore, the court determined that there was nothing misleading in the subject line of the e-mail.

Finally, the court found that the complaint’s general allegations about the remainder of the e-mails that DeWitt allegedly received from the defendants did not state a claim for a violation of section 17529.5(a) because the complaint did not: (1) identify the e-mails’ header or subject line information; or (2) explain how this information violated sec. 17529.5.

The court determined that denying DeWitt leave to amend his complaint was not an abuse of discretion. The court noted that, in opposition to the demurrers, DeWitt did not request leave to amend. At the hearing, when he did request leave to amend, he did not offer any new allegations supporting the possibility of amendment nor did he explain how he could cure the defects in the complaint by amendment.

The case is No. A141847.

Attorneys: Timothy A. DeWitt, pro se. Michael James Stortz (Drinker Biddle & Reath) for Foot Locker Retail, Inc.

Companies: Foot Locker Retail, Inc.

Cases: Advertising Privacy CaliforniaNews