August 8, 2019
A trial court in California recently issued a ruling interpreting California Business and Professions Code Section 17529.5 (“17529.5”) in Greenberg et al. v. Digital Media Solutions LLC et al., CGC-18-572010 that has the potential to profoundly impact the email marketing industry. In dismissing claims for alleged violation of 17529.5 against an Advertiser whose website was promoted in an unsolicited commercial email message, the Court appears to have further clarified and expanded the holding of the ground-breaking spam decision in Rosolowski v Guthy-Renker LLC (2014) 230 Cal. App. 4th 1403.
What were the nature of the spam claims and reason for dismissal?
Plaintiffs alleged that they received unsolicited commercial email from or on behalf of the defendant advertiser which allegedly violated 17529.5 by making use of: (1) generic “From” names in the respective email’s header information; and (2) subject lines, which allegedly misrepresented to email recipients that a purported preexisting business relationship existed between the mailers and the recipients concerning auto warranties. With respect to the subject email “From” names, the plaintiffs claimed that this header information violated 17529.5 because the generic “From” names misrepresented who was responsible for sending the applicable email messages. According to the plaintiffs, these generic “From” names were distinguishable from those deemed permissible in Rosolowski because they were not associated with well-known brands, in contrast to the generic “From” names, such as ProActive, that were at issue in Rosolowski. Stated differently, the plaintiffs argued that the subject “From” names were so generic such that they could not conceivably be associated with any particular entity, let alone either the entities responsible for sending the subject commercial email or the entity whose advertising was featured therein. The plaintiffs also brought subject line-related claims under the same statutory provision as their claims related to the “From” names, arguing that a subject line is as much a part of an email’s header information as its “From” name.
The Court, however, broadly accepted the advertiser’s defenses in dismissing the 17529.5 claims. It held that:
- The disputed emails did not violate 17529.5 because they complied with the Rosolowski
- Here, because the emails identified the advertiser through: 1) a hyperlink to its website; 2) a functional unsubscribe link; and 3) inclusion of a physical mailing address, the Court refused to recognized the distinction plaintiffs attempted to draw between an email that identifies the sender in the body and one that identifies the Advertiser.
- The Court concluded that the emails did not violate the statute, finding that 17529.5 cannot be interpreted in such a way where “an e-mail from the body of which a recipient can identify the ultimate advertiser should be treated as ‘falsified’ or ‘misrepresented’ but one from which the advertiser’s marketing can be identified should not.”
- The disputed emails’ subject lines did not violate the section of the statute under which plaintiffs brought their claims.
- The Court stated that “the statute expressly distinguishes between an e-mail’s ‘header information,’ which is governed by subdivision (a)(2), and its ‘subject line,’ which is governed by subdivision (a)(3).” Consequently, the Court also dismissed plaintiff’s subject line-related claims.
Takeaways from this Email Marketing Decision
This ruling clarifies and extends Rosolowski’s common-sense approach to email marketing regulatory compliance. Following this important decision, advertisers are likely to be armed with a powerful shield against California-specific email marketing claims in the form of a written decision that decisively holds that commercial email message which identify advertisers in their body comply with the statute, even where a plaintiff alleges that generic “From” names are used. Notwithstanding this important victory for the industry, the rules governing email compliance remain nuanced and in a state of flux. Speaking with knowledgeable marketing counsel now, as always, is critical before launching any email marketing campaign.
If you are interested in learning more about this topic or have been served with an email marketing-related lawsuit, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational 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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