Standing can often be a nuanced concept in litigation proceedings. In a recent case involving California’s “anti-spam” email statute (section 17529 of the California Business and Professional Code), a court considered whether seven plaintiffs had standing to sue based solely on the fact that they had allegedly received email that purportedly violate section 17529. The Court found that, at least in this 17529 case, the receipt of allegedly offending commercial email messages is enough to confer standing. The case is captioned Lynch v. AML Network, Ltd.
How does the Lynch 17529 case clarify standing?
Brian Lynch and six other people received unwanted commercial email messages with allegedly misleading source information. They filed suit in California state court alleging violations of section 17529 against AML Network Ltd. (“AML”), a Hong Kong company. AML removed the case to federal court, prompting the plaintiffs, in turn, to move to remand the case back to state court. In their motion to remand, the plaintiffs argued that they lacked standing in federal court. AML opposed arguing that a section 17529 statutory violation allegation is enough to establish standing.
The Court denied the motion to remand and retained the case in federal court. The main question before the Court was whether receiving an unsolicited commercial email was a sufficiently concrete injury to establish standing. Bare statutory violations, with nothing more, sometimes fall short of being concrete enough for standing purposes.
Here, however, the Court held that section 17529 is a consumer protection statute, designed to permit consumers to remedy injuries associated with receipt of allegedly deceptive or misleading commercial email. Some statutes, such as the Fair Credit Reporting Act, require companies to establish procedures to prevent consumer protection violations, and a mere procedural violation is not enough to confer standing. With respect to section 17529, the Court held that the harm occurs when one receives the unwanted commercial email, thereby bestowing standing on the recipient of the suspect email message.
Why does the Lynch decision matter to your business?
The Lynch plaintiffs tried to persuade the Court to adopt a narrow concept of standing prevalent in certain parts of the country insofar as consumer protection statutes are concerned. In most instances, businesses prefer narrower rules on what injuries can confer standing. The silver lining in Lynch, however, is that at least a section 17529 case can stay in federal court, where the rules are stricter, more uniform, and generally more favorable to businesses.
Section 17529 is a complex web of requirements on what source-related information can be included in a commercial email’s header and what representations can be made in its subject line. Just about any section 17529 case is relevant to any company that engages in email marketing. Understanding the purpose of the law and its impact on standing may help your business avoid unwanted email marketing litigation.
Hire experienced email marketing attorneys.
Section 17529 is a tangled knot of email dos and don’ts. Some necessary questions to ask about any email marketing message are: (1) Does the “from” line misrepresent who the email is from; (2) Does the email identify the advertiser and/or the message’s sender; and (3) Is the subject line deceptive or misleading in any way?
The solution to untangling the section 17529 knot? Hire experienced email marketing attorneys. The attorneys at Klein Moynihan Turco have years of experience assisting businesses of all sizes in ensuring that their email marketing campaigns comply with applicable laws and regulations. Klein Moynihan Turco also regularly defends marketers on the receiving end of email marketing-related litigation.
If you need assistance with updating your email marketing practices and procedures or defending against a section 17529 claim, 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 seeking 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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