Email spam litigation can have a significant financial impact on advertisers, ad networks, and affiliated companies sending bulk email. While the federal and state spam statutes have not changed in the past decade, the case law interpreting spam statutes has continued to evolve, with some recent cases having a dramatic effect on compliance strategies and the legal demands of spam plaintiffs. Karl Kronenberger discusses the current state of spam law compliance and litigation, including: • How certain cases decided in the past eighteen months are impacting compliance strategies • Best practices for advertisers, ad networks and senders of bulk commercial email • Current tactics and legal arguments of spam plaintiffs • Compliance strategies concerning sending domains, “from” names, subject lines and WHOIS records • The current economics of spam litigation.

1. Spam Law Update:
Guidance for Advertisers, Networks, and Mailers
Karl Kronenberger
Kronenberger Rosenfeld, LLP

2. Overview of the Law
CAN-SPAM , 15 USC 7704(a)
Prohibitions:
• Deceptive subject lines
• Materially false or misleading header information
Requires:
• Sender’s postal address
• Notice that it is an advertisement / solicitation
• Opt-out mechanism
Standing:
• “Provider of Internet access service adversely affected” by a violation of the Act
Damages:
• Up to $300 per violation

3. Overview of the Law
Cal. Bus. & Prof. Code § 17529.5
Unlawful activities relating to commercial e-mail advertisements; additional
remedies
(a) It is unlawful for any person or entity to advertise in a commercial e-mail
advertisement either sent from California or sent to a California electronic mail
address under any of the following circumstances:
(1) The e-mail advertisement contains or is accompanied by a third-party's domain name
without the permission of the third party.
(2) The e-mail advertisement contains or is accompanied by falsified, misrepresented, or
forged header information. This paragraph does not apply to truthful information used
by a third party who has been lawfully authorized by the advertiser to use that
information.
(3) The e-mail advertisement 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.

4. Overview of the Law
Wash. Rev. Code Ann. § 19.190.020
19.190.020. Unpermitted or misleading electronic mail—Prohibition
(1) No person may initiate the transmission, conspire with another to initiate the
transmission, or assist the transmission, of a commercial electronic mail
message from a computer located in Washington or to an electronic mail
address that the sender knows, or has reason to know, is held by a Washington
resident that:
(a) Uses a third party's internet domain name without permission of the third
party, or otherwise misrepresents or obscures any information in
identifying the point of origin or the transmission path of a commercial
electronic mail message; or
(b) Contains false or misleading information in the subject line.
(2) For purposes of this section, a person knows that the intended recipient of a
commercial electronic mail message is a Washington resident if that information
is available, upon request, from the registrant of the internet domain name
contained in the recipient's electronic mail address.

5. What is the State of Spam Law Today?
• CAN-SPAM v. State Spam Laws
• Momentum with Plaintiffs or Defendants?
• California v. Other States

6. Notable Cases
• Balsam v. Trancos, Inc.
- 203 Cal.App.4th 1083 (2012)
• Rosolowski v. Guthy-Renker, LLC
- 230 Cal.App.4th (2014)

7. Notable Cases
• Timothy Dewitt v. Devry University, Inc., et al.,
- No. A142444 (First Appellate District –
Unpublished)
• Botranger v. Showmark Media, LLC, et al.,
- Case No. CV 14-01144 MMM (District Court for
the Central District of California)

8. Notable Cases
• Beyond Systems, Inc. v. Kraft Foods, Inc.
- District Court for District of Maryland,
PJM-08-409 (2013)
• Wagner v. Spire Vision, LLC, et al.
- District Court for the Northern District of
California (2015), 2015 WL 876514

9. Current Tactics of Spam Plaintiffs
• Automated Systems to View, Download, Sort
Bulk Email
• Aggregating Plaintiffs
• Focus on Advertisers and Networks, NOT the
Actual Senders
• Settlements Do Not Exceed Costs of Litigation

10. Current Legal Arguments & Strategies of
Spam Plaintiffs
• From Domains
• From Names
• Subject Lines
• WHOIS Records
• Venue Selection
• Veil Piercing
• Valuing Violations
• Preparation
• Identifying Affiliates

11. Best Practices for Advertisers, Networks
and Senders
• From Email Domains: Confirm Permission
• From Names: Use Brands and DBAs
• Subject Lines: Match with Content of Email
• WHOIS Records: No Privacy
• Corporate Structure: Follow Formalities;
Elaborate Structures Not Worth the Expense

12. What are the Economics of
Spam Litigation?
• Early Briefing: Motions to Dismiss, Demurrers
• Discovery Costs
• Class Action Litigation
• Extortion / Shake Down Tactics

13. Conclusion
Karl Kronenberger
KRONENBERGER ROSENFELD LLP
(415) 955-1155, ext. 114
Karl@KRInternetLaw.com