February 29, 2016
“Spam” lawsuits are becoming an ever-increasing concern to companies in the email marketing space. The potential liability of such suits can reach levels that threaten to jeopardize the viability of the business itself. Statutory liability may be imposed in amounts of up to $100.00 per email under the federal CAN-SPAM Act, with liability on a per-email basis oftentimes set much higher under similar state statutes, with the $1000.00 per email penalty set by California Business Professions Code § 17529 et seq. (“§ 17529”) representing the most prominent example. Routine campaigns involving thousands or tens of thousands of emails can potentially expose companies to judgments of millions of dollars, with both advertisers and mailers potentially facing exposure. We have served as corporate, regulatory and litigation counsel for email marketing companies nationwide for over two decades, and in this capacity have extensively defended the industry against “spam” claims, including those brought by Timothy Walton, an attorney who has established himself as one of the most visible prosecutors of alleged “spam” claims in the country.
What Should You Do If You Have Been Sued by Timothy Walton?
Even the most prudent email marketing company or advertiser may still find itself defending a “spam” lawsuit. In such a case, it is imperative not to panic, and to engage knowledgeable counsel as quickly as possible. There are often multiple defenses to claims brought under the federal CAN-SPAM Act or similar state statutes, such as § 17529. If you are sued, it is critical that you do not: (1) speak with your adversary; (2) issue press releases; (3) speak with employees, marketing partners, advertisers or others in the industry until after you have had the opportunity to speak with your attorney; or (4) destroy, tamper with, or create documents.
How To Avoid A Spam Lawsuit
There are clear best practices that can be implemented to minimize the risk of becoming involved in a “spam” lawsuit. Advertisers should confirm that their email marketing partners are taking proper steps to maintain compliance with CAN-SPAM and related state laws, such as
§ 17529. Likewise, marketers should ensure that they have proper protocols in place to both ensure their own compliance, as well as to ensure that their affiliates are compliant with CAN-SPAM regulations, and § 17529, among other statutes. Above all, it is critical to work with experienced email marketing counsel before the launch of any campaign in order to implement the practices and procedures necessary to prevent the sending of unlawful commercial email and to avoid being named in a “spam” lawsuit.
If you are interested in this topic, have been sued or contacted by Timothy Walton, or are otherwise the subject of a “spam” lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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