Case

The Western Washington District Court held that the receipt of unsolicited commercial email messages ("spam"), while "annoying", is not by-itself enough of a "significant adverse effect" to constitute a violation of the US CAN-SPAM Act.

On behalf of client Vonage Holdings Corp., Perkins Coie obtained complete dismissal of a purported class action anti-spam case filed against Vonage in California. The plaintiff, a recent law school graduate represented by Hagens Berman Sobol Shapiro LLP, sought damages and injunctive relief from Vonage in California state court on the theory that email advertisements for Vonage services sent from more than one domain name violated California's anti-spam law, Cal. Bus. & Prof. Code Section 17529.5, and Consumer Legal Remedies Act.

A recent decision by the United States District Court for the Central District of California in MySpace, Inc. v. Wallace, No. 07-1929 (C.D. Cal. 2007), has paved the way for entities offering interactive messaging on private networks to use the CAN-SPAM Act to combat spam. Messages sent through private networks may qualify as electronic mail messages under the Act even though they are sent over an intranet rather than the public internet. Therefore, social networking websites, chat and video game providers, and web portals who may not consider themselves to be internet service providers because they use private networks, nevertheless may fall within the purview of the CAN-SPAM Act.

Asis Internet Servs. v. Optin Global Inc., N.D. Cal., No. C-05-5124-CW, 9/27/06

A federal district court has held that mortgage brokers who used "lead generators" are liable for violations of CAN-SPAM resulting from thousands of unsolicited commercial emails sent by third-party "spammers" used by the lead generators.  The mortgage brokers, held the court, had "knowingly induced" the spammers to send the illegal spam through the lead generators.  By knowingly inducing the spammers to send the messages, stated the court, the mortgage brokers met the definition of "initiator" under CAN-SPAM.  Because the mortgage brokers' products or services were advertised in the messages, they were deemed "senders" of the unsolicited commercial emails in question.

In Earthlink, Inc. v. Andy Pope, et al., the District Court for the Northern District of Georgia recently held that defendant spammers could be sued in Georgia even though they resided in Alabama and dialed in  to the Earthlink network from an ISP in Alabama.

2004 WL 3141311 (Md. Cir. Ct. 2004)
Maryland trial court held that Maryland's anti-spam statute, the Commercial Electronic Mail Act (CEMA), was unconstitutionally vague and violated the dormant commerce clause. Consumer protection firm MaryCLE (a Maryland corporation with its primary place of business in the District of Columbia) and its Internet service provider, NEIT Solutions (a Maryland LLC with operations in Colorado), sued Internet marketing company First Choice and its president (both located in New York).

103 P.3d 156 (Utah Ct. App. 2004)
Utah appellate court held that sending one email to a resident of Utah was a sufficient "contact" to satisfy the long-arm statute and minimum contacts requirement of due process for a claim arising from the email. MLeads, an Arizona corporation, contracted with marketing agent to advertise MLeads's services.

No. 2:03-cv-04269-R-VBK, Doc. 125 (C.D. Cal. final judgment Jul. 7, 2004)
Federal district court entered $4 million judgment against spammer that misrepresented himself as being associated with Microsoft's Windows Update service. Khoshnood sent spam email directing recipients to www.

1 Cal Rptr. 3d 32 (Cal. 2003)
Federal
The California Supreme Court ruled that former Intel employee Ken Hamidi did not "trespass" on Intel's computer system when he sent email messages to Intel employees at work. The case stems from e-mail messages sent by Hamidi, a former Intel employee, to thousands of Intel employees worldwide.

No. 1179 WDA 2002 (Pa. Super. Ct. 2003)
Federal
The Pennsylvania Superior Court ruled that the federal Telephone Consumer Protection Act (TCPA) does not apply to spam. Plaintiff Mark Aronson sued Bright-Teeth under the TCPA in state court after receiving six unsolicited emails.

No. 03 C 2540 (N.D. Ill. 2003)
Federal
The FTC has asked a federal court to bar a Missouri man from sending deceptive email containing sexually explicit material. According to the FTC, Brian Westby sent spam with deceptive titles to disguise the sexual nature of the email.

Tokyo (Japan, 2003)
Foreign
A Tokyo court has ordered a Tokyo company to pay compensation to NTT DoCoMo for the costs of sending spam email over DoCoMo's wireless Internet service. The decision is the first decision against spammers in Japan.

No. 01-2340 (4th. Cir. 2002)
Federal
The Fourth Circuit has ruled that a Virgnia court does not have personal jurisdiction over two Connecticut newspapers. The plaintiff, Stanley Young, sued the newspapers for defamation after they published online articles criticizing the treatment of inmates in a Virginia prison supervised by Warden Young.

E.D. Va. 2002)
Federal
A federal district court has granted almost $7 million in damages to AOL from a spam case. AOL originally filed suit against CN Productions in 1998 for sending a billion spam emails to AOL's subscribers.

Court of Rotterdam (Netherlands, 2003)
Foreign
The Court of Rotterdam has ruled that a website user is bound by the site's terms and conditions even if the user has not accpeted them before entering the site. Netwise operates a registry of email addresses than can be accessed without charge.

Johnson County Small Claims Ct. (Kansas, 2002)
KS
A marketing firm in Kansas filed suit against three out of state companies for violating Kansas' No-spam law.

Case No. CV811428 (Cal. Super. Ct. 9/26/2002)
CA
The State of California has filed a lawsuit against a California company and its two owners for "spamming." The defendants have allegedly sent millions of unsolicited emails in violation of California consumer protection laws.

E.D. Va., Civil Action No. 01-432-A, 6/7/02
Federal
Verizon Online Services sued several unknown defendants, alleging that they had sent million of commercial spam emails to Verizon subscribers interfering with the operations of Verizon's email servers, seven of which are located in Virginia. The defendants, all located in Michigan, moved to dismiss for lack of personal jurisdiction.

Filed (NY 2002)
NY
The State of New York has filed suit against MonsterHut.com for sending more than 500 million unsolicited email messages. The company allegedly falsely claimed that consumers had requested the unsolicited emails.

N.Y. App. Div., No. CA 01-02396, 5/3/02
NY
A New York appellate court ruled on spamming. MonsterHut sued PaeTec, after PaeTec had terminated its ISP services based on MonsterHut's spamming.

No. 4:00CV933SNL (E.D. Mo. 2002)
Federal
A federal court held that the Telephone Consumer Protection Act (TCPA), 47 USC Sec. 227, which prohibits unsolicited fax advertisements, violates the First Amendment.

Amsterdam Court (The Netherlands, 2002)
Foreign
XS4ALL, a Dutch Internet service provider, has sued Abfab for sending XS4ALL's subscribers large quantities of spam. The lawsuit alleges violations of the EU Personal Data Protection Act, the Dutch Telecommunications Act, as well as invasion of privacy and trademark infringement.

(France, 2002)
Foreign
A French court ruled on an ISP's rights in dealing wth spammers. A customer of a Fench ISP brought suit alleging abusive termination.

filed (San Francisco Super. Ct., 2002)
CA
A California law firm, Morrison & Foerster, filed suit against Etracks, a mail marketing company. Morrison & Foerster claims that Etracks violated the state's anti-spamming laws by sending Morrison & Foerster's employees numerous unsolicited emails that failed to comply with the state law.

filed (Australia, 2002)
Foreign
The Coalition Against Unsolicited Bulk Email has filed suit against spammers in Australia under a trepass law that dates to the time of King James I. The law forbids a person from interfering with another person's goods or chattels without their consent.

No. A092653 (Cal. Ct. App. Jan. 2, 2002)
CA
A California appellate court reversed a lower court ruling that had found a state anti-spam law to be unconstitutional. Section 17538.

(Wash. small claims court, 2001)
WA
Anti-Internet censorship website Peacefire.org was recently awarded $2000 in small claims court. Peacfire sued under Washington's new anti-spam law.

114 Cal. Rptr. 2d 244 (Cal. Ct. App. 2001)
CA
A California appellate court affirmed a lower court ruling that mass emailing Intel's employees constituted trespass to chattels. After being fired by Intel, Hamidi repeatedly flooded Intel's system with mass emails.

143 Wn.2d 824; 24 P.3d 404 (Wash. 2001)
WA
The Washington Supreme Court reversed the lower court decision that found Washington's anti-spamming law (RCW 19.190.020(1)(b) to be an unconstitutional burden on interstate commerce.

C.A. No. 99-5705 (D.N.J. 2001)
Federal
The Federal Trade Commission (FTC) secureded an injunction against two companies that obtained personal information from adult customers by misrepresenting the requirements of the Children's Online Privacy Protection Act. Global Internet Federal Registry and Get Out From Under.

Yokohama District Court (Japan 2001)
Foreign
The Yokohama District Court issued an injunction against a firm for spamming on mobile phones. The court issued the injuction against Global Networks for sending hundreds of thousands of unsolicted emails to customers of NTT DoCoMo.

No. 1: 01-cv-2097 (N.D. Ga. 2001); No. 1: 01-cv-2098 (N.D. Ga. 2001); No. 1: 01-cv-2099 (N.D. Ga. 2001);
Federal
Earthlink has filed suit against two men and a number of as yet unidentified individuals for using the company's networks for "spamming." In addition, the suit alleges that the defendants fraudulently obtained credit card numbers and other personal information.

No. 1: 01-cv-2097 (N.D. Ga. 2001); No. 1: 01-cv-2098 (N.D. Ga. 2001); No. 1: 01-cv-2099 (N.D. Ga. 2001);
Federal
Earthlink has filed suit against two men and a number of as yet unidentified individuals for using the company's networks for "spamming." In addition, the suit alleges that the defendants fraudulently obtained credit card numbers and other personal information.

High Court in Palmerston North (New Zealand, 2001)
Foreign
A New Zealand judge had ordered Alan Brown to remove Xtra's email servers from his Open Relay Behavioural Modification System blacklist. Xtra's owener, Telecom, sued Brown for being included in the blacklist, which is used by many ISPs to block spam from suspect servers.

FTC File No. 0023046 (2001)
Federal
The FTC and ReverseAuction.com have agreed to settle FTC charges alleging that ReverseAuction violated consumers' privacy. In its complaint the FTC claimed that ReverseAuction had agreed to comply with eBay's User Agreement and Privacy Policy.

N.D.N.Y. (filed July 31, 2000)
Federal
U.S. District Judge David Larimer refused to enjoin defendant Microsoft Network, Alta Vista Co., 10 other service providers, and Mail Abuse Prevention System (MAPS) from blocking Harris Interactive from corresponding with the defendants' subscribers.

No. 00-CV-12524 (D. Mass. 2000)
Federal
A U.S. District Court Judge in Massachusetts has dismissed several defamation claims against the Mail Abuse Prevention System (MAPS), brought by Media3 Technologies.

N.D. Ill., decided Jul. 13, 2000
Federal
The court granted a preliminary injunction barring Mail Abuse Prevention System (MAPS) from adding Yesmail.com to its Realtime Blackhold List (RBL) of alleged spammers.

San Francisco Sup. Ct., Cal., June 12, 2000
CA
A San Francisco Superior Court held California's anti-spam law violates the U.S. Constitution's dormant Commerce Clause by restricting interstate Internet use.

(King Cty., Washington, Sup. Ct., March 10, 2000)
WA
Judge dismissed case brought under Washington state's anti-spam act, ruling that it violates the Commerce Clause by placing an impermissible burden on businesses in interstate commerce that outweighs its benefit to consumers.

No. 98 Civ. 8959 (DAB) (HBP) (S.D.N.Y., Dec. 14, 1999)
Federal
Court ruled that unsolicited commercial email sent to AOL subscribers violated federal Computer Fraud and Abuse Act. Spam misappropriated services that could have been sold by AOL, impairing the network in violation of the Act.

No. C20546/99 (Ontario Super. Ct., June 14, 1999)
Foreign
Web site owner violated terms of service agreement with ISP that required users to conform with "netiquette" when it sent spam. ISP shut down site after receiving complaints about spam.

(United Kingdom, 1999)
Foreign
British ISP Virgin Net sued former subscriber Adrian Paris when the subscriber sent spam using Virgin Net's system, and the spammer's mail caused the Realtime Blackhole List to put Virgin Net on its boycott list. Virgin Net set the spammer's actions, sent from a succession of accounts, caused actionable damage to its reputation.

49 F. Supp. 2d 851 (E.D. Va. 1999)
Federal
Defendants sent commercial email to AOL subscribers. AOL blocked these emails, and sought damages and an injunction. Defendants filed counterclaims alleging discrimination in violation of the Communications Act, antitrust violations, and interference with contract.

No. 98AS05067 (Cal. Super. Ct., April 27, 1999)
CA
Court granted Intel an injunction barring former employee from sending mass email messages to the company's employees criticizing the company and making what it claims are false charges about its treatment of employees. Intel's email system was not a public forum, even though it was connected to the Internet, and Intel could bar Hamidi from using it.

Ontario Court General Division, filed 3/22/99
Foreign
Canadian ISP requested injunction against subscriber who used the ISP's resources to distribute spam in contravention of its terms of use contract. Plaintiff alleges that defendant's initial account was canceled for the violation, however, defendant has been successful in opening new accounts and resuming the activity.

No. 99-2-03549-6SEA (Wash. Sup. Ct. King Cty. filed Feb. 10, 1999)
WA
State of Washington sued store owner under state's Unsolicited Electronic Mail Act for sending email advertisements with misleading subject messages, false routing information, and false email return addresses.

CV778550 (Santa Clara Supr. Ct. 12/21/98)
CA
Plaintiff alleged that Microsoft modified its Internet Explorer email software to filter plaintiff's competing electronic greeting cards, treating plaintiff's product as spam and sending it to the junk mail folder. Issuing a preliminary injunction, the court ordered Microsoft not to distribute, license, or sell any product that includes an electronic mail filter that impedes in any manner the delivery of plaintiff's greeting cards.

998 U.S. Dist. LEXIS 20226 (E.D.Va. 1998)
Federal
AOL sued spammers, alleging that defendant sent millions of unsolicited messages to AOL subscribers advertising tools that would let them send their own "spam." AOL also alleged violations of the Federal Computer Fraud and Abuse Act, Lanham Act false designation of origin, Virginia common law trespass to chattels, violations of Virginia Computer Crimes Act, and common law conspiracy to commit trespass to chattels.

46 F. Supp. 2d 444 (E.D. Va. 1998)
Federal
Defendants sent unsolicited bulk emails, used AOL computer systems in excess of their authority, harvested email addresses of AOL customers, and deceptively used "aol.com" in its spam headers.

24 F. Supp. 2d 548 (E.D. Va. 1998)
Federal
Defendant, who sent over 60 million pieces of unauthorized bulk email advertisements to customers of AOL, held liable to AOL on claims of trespass to chattel under Virginia Common law, Lanham act false designation of origin for using aol.com in the spam headers, and dilution by tarnishment because of negative associations with AOL's mark, supported by over 50,000 complaints received by AOL regarding defendant's activities.

(filings announced 10/28/98)
Unknown
SEC announced filing of 23 separate enforcement actions against 44 individuals and companies, alleging Internet fraud through violations of anti-fraud and anti-touting provisions of federal securities laws. Defendants allegedly used spam, online newsletters, message board postings, and Web sites to tout over 235 microcap companies by lying about the companies, lying about their own "independence" from the companies, or failing to disclose adequately the nature, source, and amount of compensation paid by the companies.

(King Cty. Supr. Ct. filed 10/22/98)
WA
First suit filed by state attorney general for alleged violation of Washington's new antispam law alleges that an Oregon business owner who spam to millions of users, including Washingtonians, in order to sell his book How to Profit from the Internet.

30 F. Supp. 2d 1292 (D. Colo. 1998)
Federal
Plaintiff, who registered "nobody@localhost.com", received over 7000 "bounced back" and reply emails when spammer placed "nobody@localhost.

156 F.3d 513 (3rd Cir. 1998)
Federal
ErieNet brought action in Federal Court under the Federal Telephone Consumer Protection Act ("TCPA") alleging that VelocityNet sent unsolicited email messages to ErieNet subscribers in violation of the TCPA. Dismissing the case for lack of subject matter jurisdiction, that court held that the statute's silence with regard to federal jurisdiction, a specific reference in the private right of action provision to state courts, and the legislative intent behind the TCPA, refer consumer suits to state courts.

S.D.N.Y., filed July 30, 1998
Federal
Film maker Peter Hall sued his Internet service provider for libel after it erroneously terminated his account for alleged spamming. The suit claims damage to his reputation as well as breach of contract and economic harm arising from the wrongful suspension of access to his email account.

No. 98-2-17831-1 (Super. Ct., King County, Washington, filed 7/17/98)
WA
First lawsuit filed under Washington State's tough new anti-spam law, which entitles recipients of unsolicited commercial bulk email to recover damages for any such email that conceals the true identity or location of the sender, contains a misleading subject line, or uses the domain name of a third party without permission. Plaintiffs, a group of Issaquah, Washington businesspeople, brought the action against World Touch Networks and its owner Christopher Lee Knight, after receiving deceptive bulk email promoting Bull's Eye Gold, a software produced by World Touch and used for harvesting email addresses from the Internet.

1998 U.S. Dist. LEXIS 10729 (N.D. Cal. 1998)
Federal
Hotmail Corp. filed suit against eight companies alleging that defendants' use of Hotmail's email services to send unsolicited commercial emails violated federal and state laws, including trademark infringement laws and the Computer Fraud and Abuse Act.

No. BC167502 (Cal. Super. Ct. filed Mar. 27, 1998)
CA
Lawsuit against major sender of unsolicited commercial email settled by consent decree , with Cyber Promotions agreeing to pay EarthLink two million dollars in damages for spammings that slowed system response time and inconvenienced the provider's 450,000 subscribers. Cyber Promotions also agreed to stop sending unsolicited bulk email to EarthLink subscribers.

No. WMN 98-495 (D. Md., filed 3/4/98)
Federal
Action against a group of individuals and businesses allegedly offering bogus business opportunities by means of unsolicited email.

Civil Action No. 98-CV-289 (E.D. Va. filed Mar. 2, 1998)
Federal
AOL's suit against Eddie Davidson and his two firms, Web Communications and Sex Web Incorporated, alleging copyright infringement, fraud and computer crimes arising from (1) defendant's alleged spamming of AOL subscribers using an "aol" return email address, and (2) defendant's operation of sexually-oriented Web sites under various domain names containing the letter string "aol" and using a Web page design that imitates the look and feel of AOL's homepage.

County Ct., Dallas, Ga., filed Dec., 1997
GA
Lawsuit alleging trademark infringement and unfair business practices arising from defendant's alleged spamming of AOL subscribers through third party servers to avoid AOL's spam filters, and using AOL's trademark in fraudulent return addresses on unsolicited email.

Circuit Ct., Fairfax Cty., Va., filed Dec., 1997
VA
Lawsuit alleging trademark infringement and unfair business practices arising from defendant's alleged spamming of AOL subscribers through third party servers to avoid AOL's spam filters, and using AOL's trademark in fraudulent return addresses on unsolicited email.Circuit Ct., Fairfax Cty., Va., filed Dec., 1997
VA
Lawsuit alleging trademark infringement and unfair business practices arising from defendant's alleged spamming of AOL subscribers through third party servers to avoid AOL's spam filters, and using AOL's trademark in fraudulent return addresses on unsolicited email.

(S.D.N.Y., filed 11/25/97)
Federal
Plaintiff online service provider and operator of free email service sues to stop five companies known for bulk email from using Juno's domain name in the return address of their bulk emailings.

No. 97-06273 (Tex. Dist. Ct., Travis Cty., 11/10/97)
TX
Judgment against Craig Nowak, California-based sender of mass unsolicited commercial email, for more than $13,000 in damages and $5,000 in attorney's fees, and injunction precluding defendant from sending mass emails with false designations of origin. Court found that defendant's use of false return address resulted in large amount of email replies being returned to plaintiff's server as undeliverable, damaging both the service provider and the small business whose domain name had been used as the false return address.

No. 97-1547-A (E.D.Va. filed Nov. 31, 1997)
Federal
Temporary restraining order granted in lawsuit alleging trademark infringement and unfair business practices arising from defendant's alleged spamming of AOL subscribers and using AOL's trademark in fraudulent return addresses on unsolicited email containing pornographic links, despite demands to discontinue such actions. Defendant initially appealed, but subsequently consented to permanent injunction and paid an undisclosed settlement.

S.D.N.Y., filed Oct. 7, 1997
Federal
Plaintiff alleges that defendant misused plaintiff's email address to send unsolicited commercial email promoting illegal and fraudulent business schemes.

1997 U.S. Dist. LEXIS 15344 (E.D. Pa. 1997)
Federal
Temporary restraining order requires Internet service provider to restore Internet service to company widely known for sending unsolicited commercial email, despite complaints from recipients.

(E.D.Mich. 8/25/97)
Federal
Temporary restraining order prohibiting defendants from sending unsolicited commercial email with plaintiff's forged return address.

(S.D. Cal. filed 8/20/97)
Federal
Japanese Internet service provider charges trespass, unfair competition, and violations of Electronic Communications Privacy Act arising from defendant's alleged flooding of plaintiff's servers with email ads bearing false Typhoon return addresses.

Filed Civil No. 97-11957 (Pa. Ct.Comm.Pls., Montgomery Cty, June 25, 1997)
PA
Major sender of unsolicited commercial email sues Internet service provider for terminating the parties' contract for Internet service. Defendant maintains plaintiff's use of email was too high-volume for defendant's service to maintain; plaintiff maintains that defendant terminated contract because of the nature of plaintiff's business.

663 N.Y.S.2d 468 (Sup. Ct. 1997)
NY
New York state's consumer fraud and false advertising laws were enforceable against a state resident whose email sales "scam" was targeted outside the state by means of global electronic communication. Dismissing defendants' jurisdictional challenge, the court noted that the Internet nature of defendant's transactions did not affect jurisdictional analysis, since "the focus is primarily on the location of the messenger.

Civ. No. 97-1302 SI (N.D. Cal., filed 4/11/97)
Federal
Owners of a database have sued an attorney referral service that used the plaintiff's database of expert witnesses to create an address list for the sending of unsolicited "junk" email. Plaintiff alleges infringement of copyright in the database, violation of a license that expressly prohibited such uses of the database, and unlawful trespass, in addition to federal and state unfair competition claims.

Docket Nos. 95-831-O-H, 96-868-O-H, 96-908-O-H, and 96-910-O-H (Disciplinary District, Board Of Professional Responsibility, Supreme Court Of Tennessee, 2/27/97)
TN
Laurence Canter of the Arizona immigration law firm Canter & Siegel, widely known for use of unsolicited mass email as a means of advertising legal services, was disbarred from practice in Tennessee for violations of the Tennessee Code of Professional Responsibility. Violations included mismanagement and conversion of client funds, in addition to the use of mass email to solicit clients, which, the Board held, "violated the standards of conduct for use of the Internet as well as Tennessee's Code of Professional Responsibility.

962 F. Supp. 1015 (S.D. Ohio 1997)
Federal
Defendant online marketing organization's continued transmission of unsolicited email to subscribers after express requests to cease is actionable under Ohio's common law tort of trespass to personal property. CompuServe's demand that Cyber Promotions cease sending unsolicited promotional email through its service constituted a revocation of CompuServe's invitation to enter its property.

C-96 20829-RMW (EAI) (N.D. Cal. 1996)
Federal
Court orders online marketing organization to submit affidavit that it will not engage in sending unsolicited email to or through accounts with plaintiff Internet service provider. Plaintiff, alleging its ability to deliver services to its subscribers was seriously impacted by a "flood" of unwanted advertisements, seeks preliminary and permanent injunction in the case.

948 F. Supp. 436 (E.D.Pa. 1996)
Federal
Online promotion and advertising company sued America Online (AOL) service, maintaining that AOL's policy against "junk email" resulted in a conscious effort to ruin the plaintiff's business. Plaintiff claims its marketing is carefully targeted, offers to pay for receipt of unwanted mail, and allows unwilling recipients to be taken off its list.

S.D. Cal. filed Dec., 1995 (no reported opinion)
Federal
CompuServe subscriber's action against CompuServe for allowing distribution of "junk email," alleging violation of 1991 Telephone Consumer Protection Act.