Mickey Chandler's SpamSuite
A Document Repository for Spam-Related Legal Documents
Support the SiteLinks and Supporters |
9th Circuit decisionHere is the decision from the 9th Circuit. It's a pretty solid win for Virtumundo and a solid loss not only for Gordon, but also the State of Washington (with a holding that its Commercial E-Mail Act is pre-empted by CAN-SPAM). Oddly, and in something of a vindication of Gordon's position, the panel refers to Virtumundo as "spammers" (see page 4: "In the parlance of our time, they are “spammers.”"). I'm not sure how comfortable I am with the concept that standing is determined not only by compliance with the statute (no matter how technical) but also by reaching back to legislative history. In this case, it appears that the panel's decision was reached as much by antipathy against Gordon (who is, let's face it, a VERY unsympathetic plaintiff) as it was anything else. And page 22's dual-level standing analysis dictum (presume standing when the plaintiff is a big provider and presume no standing when the plaintiff is a small provider) just seems odd to me. One ray of hope for potential CAN-SPAM plaintiffs is found on page 21. There the panel, in dictum, states: "The e-mails at issue in a particular case must, at the very least, contribute to a larger, collective spam problem that caused ISP-type harms." The footnote mentions that the District Court's opinion has created some confusion on adverse effects and they reserve the question for another day with a better developed record. But, this may indicate that the 9th Circuit is perhaps a shade reticent to say that CAN-SPAM is only a tool that IAS provider can use against only the worst of the worst. Finally, I have to say that I find Judge Gould's concurrence to be fairly compelling. Gordon was obviously trying to manufacturer a claim under CAN-SPAM and there is ample precedent under the common law to penalize him for that without needing to get into the legislative history. UNITED STATES COURT OF APPEALS JAMES S. GORDON, JR., an individual doing business as gordonworks.com, v. VIRTUMUNDO, INC., a Delaware corporation; ADKNOWLEDGE, INC., a Delaware corporation; and SCOTT Appeal from the United States District Court Argued and Submitted December 9, 2008—Seattle, Washington Filed August 6, 2009 Before: Ronald M. Gould, Richard C. Tallman, and Consuelo M. Callahan, Circuit Judges. Opinion by Judge Tallman; -2- Derek Newman (argued), Randall Moeller, Newman & Newman, Attorneys at Law, LLP, Seattle, Washington, for defendants-appellees Virtumundo, Inc., Adknowledge, Inc., and Scott Lynn. Shannon E. Smith, Deputy Attorney General, Robert M. McKenna, Attorney General of Washington, Seattle, Washington, for Amicus Curiae State of Washington. Jason K. Singleton, Richard E. Grabowski, Singleton Law Group, Eureka, California, for Amicus Curiae ASIS Internet Services, Joel Householter, and Ritchie Phillips. -3- TALLMAN, Circuit Judge: This case addresses unsolicited commercial e-mail, more commonly referred to as “spam.”1 While ignored by most and reviled by some, spam is largely considered a nuisance and a source of frustration to e-mail users who, at times, must wade through inboxes clogged with messages peddling assorted, and often unwanted, products and services. The rising tide of spam poses an even greater problem to businesses, institutions, and other entities through network slowdowns, server crashes, and increased costs. At the same time, commercial enterprise has staked its claim within the online world. The [1 While “spam” in this context does not have a precise definition, it is typically understood to refer broadly to unsolicited e-mail messages (or “junk” e-mail), typically commercial in nature. See United States v. Kelley, 482 F.3d 1047, 1055 (9th Cir. 2007) (Thomas, J., dissenting). The term “SPAM” originated as the trademark name for a canned precooked meat product manufactured by Hormel Foods Corporation. See Hormel Foods Corp. v. Jim Henson Productions, Inc., 73 F.3d 497, 500 (2d Cir. 1996). The e-mail-related connotation has its roots in a popular 1970 sketch by the British comedy troupe Monty Python’s Flying Circus, in which the word “spam” is repeated to the point of absurdity. Kelley, 482 F.3d at 1056 n.2 (Thomas, J. dissenting) (citing CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1018 n.1 (S.D. Ohio 1997)). A waitress recites menu items, which, to the restaurant patrons’ dismay, involve increasingly repetitive mention of SPAM, only to be periodically interrupted by a group of Vikings chanting a chorus about SPAM until normal dialogue is impossible. David Crystal, Language and the Internet 53-54 (2001) (citing to Monty Python’s Flying Circus, 2d series, episode 25 (BBC television broadcast Dec. 15, 1970)). Thus, in the context of the Internet, “spam” has come to symbolize unwanted, and perhaps annoying, repetitious behavior that drowns out ordinary discourse. The term was first used in the electronic messaging context to describe the practice of sending advertisements to many recipients, particularly on newsgroup forums. Id. But see S. Rep. No. 108-102, at 2 n.1 (2003), as reprinted in 2004 U.S.C.C.A.N. 2348, 2348 (noting that “[i]t all started in early Internet chat After individual states initially wrestled with properly balancing the benefits and burdens of commercial e-mail, Congress enacted legislation in an effort to curb the negative consequences of spam and spamming practices without stifling legitimate commerce. Through this opinion we review the federal statutory scheme of the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act of 2003, 15 U.S.C. § 7701 et seq., and assume the formidable task of determining the statutory standing requirements and the scope of federal preemption intended by Congress. In the case before us, James S. Gordon, Jr. and his company, Omni Innovations, LLC (“Omni”),2 sued Virtumundo, Inc., Adknowledge, Inc., and Scott Lynn, the sole shareholder of both companies, seeking injunctive relief and significant damages based on the receipt of thousands of commercial emails. Defendants are in the online marketing business and widely transmit e-mail advertisements and solicitations to potential consumers on behalf of third-party clients. In the parlance of our time, they are “spammers.” [2 Unless otherwise specified, we use the term “Gordon” in the recitation of the facts to collectively refer to both plaintiffs, Gordon and Omni. Omni has no employees, and Gordon is its manager and sole member.] Based on a dense record developed through substantial discovery, the district court granted summary judgment in favor of Virtumundo, Adknowledge, and Lynn (collectively, “Virtumundo”) on all of Gordon’s claims. We have jurisdiction over Gordon’s appeal pursuant to 28 U.S.C. § 1291. Having carefully and independently evaluated the issues in light of I Gordon is the original registrant of the Internet domain “gordonworks.com,” which he hosts on server space that Omni leases from GoDaddy, a domain registrar and web hosting company that also sells e-business related software and services, see http://www.godaddy.com. The GoDaddy service It was through this vehicle that Gordon created a personal e-mail address: “jim@gordonworks.com.” Around September 2003, Gordon created additional e-mail accounts through the gordonworks.com domain for about six friends and family members, which he monitored for “data collection” and “research purposes.” Gordon registered jim@gordonworks.com and the gordonworks.com e-mail addresses of his “clients” in response to various online promotions and for numerous prize giveaways. Gordon estimates that, in doing so, he subscribed, or “opted in,” to e-mail mailing lists somewhere between 100 and 150 times.3 [3 Gordon further admits subscribing to various mailing lists as part of his “reconnaissance” activities in preparation for his pending and potential lawsuits. For example, Gordon would register his e-mail address in order to gain access to corporate information about potential defendants.] Soon thereafter, these accounts began receiving e-mails from businesses marketing their goods and services. Some of Gordon continued to maintain and monitor the abandoned gordonworks.com e-mail accounts. He described his ongoing efforts as “do[ing] research on the spam that comes through.” At some later point, Gordon configured the e-mail server to provide an automated response to all commercial e-mail sent to gordonworks.com accounts. The response was titled “NOTICE OF OFFER TO RECEIVE UNSOLICITED COMMERCIAL EMAIL (SPAM)” and purported to consummate a “binding contract” by which the sender agreed to either cease and desist or pay Gordon $500 for each additional unsolicited e-mail subsequently delivered to the account. While he claims that online marketers, including Virtumundo, ignored his requests that all gordonworks.com e-mail addresses be removed from their mailing lists, Gordon does not provide evidence, apart from a general “belief,” that he followed the “opt-out” procedure stated in the individual e-mail messages. Not surprisingly, the e-mail accounts continued to receive spam, which over time accumulated in the unused inboxes. At the time of his deposition in January 2007, these gordonworks.com e-mail accounts remained active. However, the only persons who actually used a gordonworks.com account were Gordon and his wife. In 2004, Gordon began filing lawsuits in state and federal court against persons and companies who sent solicitations or advertisements to e-mail accounts hosted on Omni’s leased server space. In February 2006, Gordon filed this lawsuit against Virtumundo in the Western District of Washington. He asserted various causes of action for violations of the [4 For example, in his motion for partial summary judgment, which the district court denied, Gordon sought statutory damages in the amount of $10,257,000, plus attorney’s fees and costs, based on 7,890 allegedly unlawful e-mails.] In December 2006, the Honorable John C. Coughenour granted in part and denied in part Virtumundo’s motion to dismiss for pleading deficiencies. The order dismissed Gordon’s Prize Statute claims, in their entirety, and his CEMA and CPA claims to the extent they related to the gathering of “personally identifying information.” Wash. Rev. Code § 19.190.080. The court gave leave to amend the complaint to cure pleading deficiencies, but Gordon never did so. Virtumundo then moved for summary judgment on all remaining claims, which consisted of Gordon’s CAN-SPAM Act claims and the surviving CEMA and CPA claims. By Order dated May 15, 2007, the district court granted the defense motion, see Gordon v. Virtumundo, Inc., No. 06-0204, 2007 WL 1459395 (W.D. Wash. May 15, 2007). Judge Coughenour concluded that both Gordon and Omni lacked standing to pursue a private action under the CAN-SPAM Act and that the state law claims failed as a matter of law based in part on federal preemption grounds. -8- [5 A notice of appeal was filed on behalf of both Gordon and Omni. Gordon and trial counsel parted ways following the district court’s summary judgment order, and Gordon proceeded pro se. Upon the filing of Gordon’s opening brief, we dismissed Omni from this appeal as an improper pro se corporate appellant.] II We review a district court’s grant of summary judgment de novo, and may affirm on any basis supported by the record. Burrell v. McIlroy, 464 F.3d 853, 855 (9th Cir. 2006). Our review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56. Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir. 1999). “Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc). A determination of standing is a question of law that we review de novo, see Nat’l Res. Def. Council v. EPA, 542 F.3d 1235, 1244 (9th Cir. 2008), as is a finding of federal preemption, III A [1] We first turn to Gordon’s CAN-SPAM Act claims. The CAN-SPAM Act became effective on January 1, 2004, and was enacted in response to mounting concerns associated with the rapid growth of spam e-mails. Congress determined: (1) there is a substantial governmental interest in (2) senders of commercial electronic mail should not mislead recipients as to the source or content of such mail; and (3) recipients of commercial electronic mail have a right to decline to receive additional commercial electronic mail from the same source. 15 U.S.C. § 7701(b).6 The Act does not ban spam outright, but rather provides a code of conduct to regulate commercial email messaging practices. Stated in general terms, the CAN-SPAM Act prohibits such practices as transmitting messages with “deceptive subject headings” or “header information that is materially false or materially misleading.” See 15 U.S.C. § 7704(a)(1), (2). The Act also imposes requirements regarding content, format, and labeling. For instance, unsolicited email messages must include the sender’s physical postal address, indicate they are advertisements or solicitations, and notify recipients of their ability to decline further mailings. 15 U.S.C. § 7704(a)(5). Moreover, in order to comply with the Act, each message must have either a functioning return email address or a comparable mechanism that allows a recipient [6 The CAN-SPAM Act defines “commercial electronic mail message” to mean “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose),” excluding transactional or relationship messages. 15 U.S.C. § 7702(2). 7 The CAN-SPAM Act also delineates “aggravated violations” for various spamming practices such as e-mail harvesting and dictionary server attacks, see 15 U.S.C. § 7704(b), which are not at issue in this lawsuit.] [2] The CAN-SPAM Act’s enforcement provision empowers the Federal Trade Commission, state attorneys general, Congress also provided a limited private right of action, which states: A “provider of Internet access service adversely affected by a violation of” § 7704(a)(1), (b), or (d), or “a pattern or practice that violates” § 7704(a)(2) through (5) of the Act “may bring a civil action in any district court” to enjoin further violation by a defendant or to recover either actual or statutory damages, whichever is greater. 15 U.S.C. § 7706(g)(1). Statutory damages under the CAN-SPAM Act are substantial and can equal as much as $300 per unlawful e-mail.8 15 U.S.C. § 7706(g)(3). The Act also authorizes an award of attorneys’ fees and costs against any party at the district court’s discretion. 15 U.S.C. § 7706(g)(4). [8 Statutory damages are calculated by multiplying the number of violations (i.e., the number of unlawful e-mail messages) by up to $100 in the case of a violation of § 7704(a)(1), or by up to $25 for any other violation. 15 U.S.C. § 7706(g)(3). The court may consider the defendant’s conduct in setting the statutory damage award and, if it determines that violations are aggravated, may increase the damage award up to three times the amount otherwise available. Id.] Therefore, in any private action claiming CAN-SPAM Act violations, a threshold issue is whether the plaintiff satisfies the statutory standing requirements. On its motion for summary judgment, Virtumundo challenged Gordon’s and Omni’s ability to pursue a private action under § 7706(g)(1). The district court conducted a thorough analysis of the existing case law, the CAN-SPAM Act itself, and the legislative history. Based upon the well-developed facts of the summary judgment record, the district court concluded that Plaintiffs had not demonstrated adequate harm—i.e., an “adverse effect,” as the district court called it—and therefore lacked standing with respect to these federal claims. Gordon, 2007 WL 1459395, at *8. We agree that Gordon lacks standing to bring a private action under the CAN-SPAM Act. We commend the district B As recognized by several courts, the case law regarding the relevant legal standards under the CAN-SPAM Act is “scant,” ASIS Internet Servs. v. Optin Global, Inc., No. 05-05124, 2008 WL 1902217, at *15 (N.D. Cal. Apr. 29, 2008), and few courts have construed the standing provision, ASIS Internet Servs. v. Active Response Group, No. 07-6211, 2008 WL 2952809, at *2 (N.D. Cal. July 30, 2008). Neither we nor any of our sister circuits have comprehensively addressed this issue. We endeavor to do so here, at least in part. 1 [3] We begin by acknowledging that the CAN-SPAM standing inquiry involves two general components: (1) whether the plaintiff is an “Internet access service” provider (“IAS provider”), and (2) whether the plaintiff was “adversely affected by” statutory violations. See, e.g., Brosnan v. Alki While over time courts have developed various canons to assist with statutory interpretation, this “is an area in which absolutist rules do not [always] lead to sensible or accurate results.” Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1453 (9th Cir. 1992). “[I]t is,” after all, “the duty of a court in construing a law to consider the circumstances under There are a few points that heavily influence our analysis, which we identify at the outset. First, despite what Gordon and likeminded anti-spam enthusiasts might contend, the purpose of the CAN-SPAM Act was not to stamp spam out of existence. While Gordon is likely not alone in his deep-seated hostility toward spam and those who profit from it, there are beneficial aspects to commercial e-mail, even bulk messaging, that Congress wanted to preserve, if not promote. Indeed, Electronic mail has become an extremely important and popular means of communication, relied on by 15 U.S.C. § 7701(a)(1); see also S. Rep. No. 108-102, at 2 (2003), as reprinted in 2004 U.S.C.C.A.N. 2348, 2349 (“Unlike direct mail delivered through the post office to consumers, [e-mail] can reach millions of individuals at little to no cost and almost instantaneously.”). The tailored regulations, which target deceptive and predatory practices and attempt to alleviate the negative effects of spam without unduly stifling lawful enterprise, embody the fine balance struck by Congress. -13- The Act itself recognizes the “costs to recipients . . . for the storage of [unsolicited commercial e-mail], or for the time spent accessing, reviewing, and discarding such mail, or both.” 15 U.S.C. § 7701(a)(3). We surmise that Congress’s intent was to limit enforcement actions to those best suited to detect, investigate, and, if appropriate, prosecute violations of the CAN-SPAM Act—those well-equipped to efficiently and effectively pursue legal actions against persons engaged in unlawful practices and enforce federal law for the benefit of all consumers. Third, our review of the congressional record reveals a legitimate concern that the private right of action be circumscribed and confined to a narrow group of private plaintiffs: “[Section 7706](g) provides for a limited right of action by bona fide Internet service providers.” 150 Cong. Rec. E72-02 (Jan. 28, 2004) (remarks of Rep. Dingell) (emphasis added); accord id. at E73-01 (remarks of Rep. Tauzin). It is perhaps a sad reality that Congress must specify a bona fide IAS provider, as possibly distinct from a non-genuine IAS provider. But this demonstrates to us that lawmakers were wary of the possibility, if not the likelihood, that the siren song of substantial statutory damages would entice opportunistic plaintiffs to join the fray, which would lead to undesirable results. While Congress did not intend that standing be limited to feefor-service operations,9 we think it did intend to exclude [9 In support of its summary judgment motion, Virtumundo argued that, as providers of free services, Gordon and Omni did not qualify as IAS providers. The district court correctly rejected this argument because Congress expressly discussed free Internet services when it enacted the CAN-SPAM Act. See S. Rep. No. 108-102, at 3 (mentioning Microsoft’s free e-mail service when discussing effects of the increasing volume of spam).] Fourth and finally, we must factor into the calculus the unique nature of the subject matter at issue. Especially in this arena, the engine of innovation moves far more quickly and nimbly than the methodical pace of legislation. That is readily apparent here. In the few years since the CAN-SPAM Act became effective, the uses of the Internet and the prevalence and variety of available online services have multiplied exponentially. The marketplace has developed a panoply of related products and services not available when Congress authored the federal legislation. Significantly, no longer are typical Internet users primarily limited to accessing e-mail accounts and searching for content or information. With the rise of social networking sites, blogs, and other user-driven websites, the ability to post content on the Internet or to create forums for others to do so is no longer a privilege reserved for the technologically savvy or the financially elite. The rate of development will only accelerate. As this inevitably occurs and the gateway to the online world further widens for the masses, courts should be mindful that the lines Congress intended to draw when drafting the statutory text might lose clarity. With these principles in mind, we apply a standing analysis that encapsulates Congress’s will when it provided a limited private right of action. -15- [4] We first address whether Gordon is a “provider of Internet access service” who, if adversely affected by a statutory violation, has private standing to bring CAN-SPAM Act claims. The CAN-SPAM Act defines “Internet access service” by reference to the Communications Act, see 15 U.S.C. § 7702(11), which provides: The term “Internet access service” means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services. 47 U.S.C. § 231(e)(4). We have not previously spoken “as to who is an ‘Internet access service’ provider” within the meaning of the CAN-SPAM Act, see Ferguson v. Quinstreet, Inc., No. 07-5378, 2008 WL 3166307, at *5 (W.D. Wash. Aug. 5, 2008), and note the ambiguity of this statutory definition. District courts in our circuit have interpreted the definition of “Internet access service” broadly to encompass a wide range of services, and not merely traditional Internet Service Providers (“ISPs”)—i.e., the service that connects customers to the Internet itself. See Hypertouch, Inc. v. Kennedy-Western Univ., No. 04-05203, 2006 WL 648688, at *3 (N.D. Cal. March 8, 2006) (stating that “a provider of e-mail service alone, without any other services, qualifies” as an IAS provider under the CAN-SPAM Act). For instance, one such court reasoned that, although the definition “appears primarily to contemplate services that provide consumers their initial connection point to the Internet, the language is broad enough to encompass entities such as Facebook,” a popular social networking site, “that provide further access to content and communications between users for persons who may initially [5] While we agree that statutory standing is not limited to traditional ISPs, we reject any overly broad interpretation of “Internet access service” that ignores congressional intent. Contrary to Gordon’s suggestion, providing e-mail accounts cannot alone be sufficient. Many employers and institutions, for example, provide their employees or members with e-mail accounts and service—including our court. The findings codified in the statute note Congress’s concern pertaining to the growth of unsolicited commercial e-mail and its imposition of “monetary costs on providers of Internet access services,” which have standing to sue, as well as on “businesses, and educational and nonprofit institutions that carry and receive such mail.” 15 U.S.C. § 7701(a)(6). Clearly, Congress viewed IAS providers as distinct from entities that merely “carry [or] receive such mail.” Standing under the CAN-SPAM Act requires more. See, e.g., White Buffalo Ventures, LLC v. Univ. of Texas at Austin, 420 F.3d 366, 373 (5th Cir. 2005) (“[W]e [6] Nevertheless, we conclude that Gordon does not fit any reasonable definition of “Internet access service” provider. Gordon is a registrant of a domain name, which he, through Omni, hosts on leased server space. He neither has physical control over nor access to the hardware, which GoDaddy owns, houses, maintains, and configures. From our review of the record, Gordon’s service appears to be limited to using his “Plesk” control panel, which he accesses via an ordinary Internet connection through an ISP, to set up e-mail accounts and log-in passwords and to execute other administrative tasks. Verizon enables his online access. GoDaddy provides the service that enables ordinary consumers to create e-mail accounts, register domain names, and build personalized web pages. Gordon has simply utilized that service for himself and on behalf of others. It matters not that he entered the keystrokes or clicked the mouse. Nor is it relevant that he created gordonworks.com e-mail addresses for family and friends, and not merely himself. While Verizon and GoDaddy might have a compelling argument that they are IAS providers within the meaning of the CAN-SPAM Act, Gordon’s claim that he holds such elite status is unconvincing. In addition to his nominal role in providing Internet-related services, we are also troubled by the extent to which Gordon fails to operate as a bona fide e-mail provider. As discussed in greater detail below, Gordon has purposefully avoided taking even minimal efforts to avoid or block spam messages. Instead, Gordon devotes his resources to adding his “clients’ ” [7] Gordon’s arguments of technical compliance with this standing component, without any regard for the overarching congressional purpose, are not compelling. The record here is sufficiently developed. We hold that Gordon is not an “Internet access service” provider within the meaning of the CAN-SPAM Act. 3 We next turn to the “adversely affected by” component of the CAN-SPAM Act’s standing inquiry. Gordon has undoubtedly encountered a large volume of commercial e-mail. This, however, is not enough to establish statutory standing. In order to pursue a private right of action, an IAS provider must demonstrate that it has been “adversely affected by a violation of . . . or a pattern or practice that violates” the Act. 15 U.S.C. § 7706(g)(1) (emphasis added). As with other issues on this appeal, we find little guidance in existing case law as to the meaning of the nebulous a [8] The CAN-SPAM Act itself does not delineate the types of harm suggested by the “adversely affected by” language. The district court, acknowledging this ambiguity, confronted the question by reference to traditional methods of statutory interpretation and ultimately concluded that the harm “must be both real and of the type uniquely experienced by IASs for standing to exist.” Gordon, 2007 WL 1459395, at *7 (emphasis added).10 To our knowledge, all courts that have addressed [10 The district court further reasoned that if the limited private right of action is to have any traction at all, “[n]ot only must CAN-SPAM private plaintiffs allege a particular type of harm, the adverse effect they allege must be significant.” Gordon, 2007 WL 1459395, at *8 (emphasis added). The court did not explain the meaning of the term “significant.” As discussed herein, we believe that Congress intended that the alleged harm be something of significance to an IAS provider. To this extent, we agree with the district court’s reasoning that harm be significant.] [9] It is notable that Congress conferred standing only on adversely affected IAS providers, but not adversely affected consumers. Logically, the harms redressable under the CAN-SPAM Act must parallel the limited private right of action and therefore should reflect those types of harms uniquely encountered by IAS providers. The Committee Report identified the cost of “investing in new equipment to increase capacity and customer service personnel to deal with increased subscriber complaints . . . [and] maintaining e-mail filtering systems and other anti-spam technology on their networks to reduce the deluge of spam” as undesirable consequences facing the typical ISP. S. Rep. No. 108-102, at 6. “All courts that have construed the statute” have similarly defined the harms upon which standing may be predicated to include “network crashes, higher bandwidth utilization, and increased costs for hardware and software upgrades, network expansion and additional personnel.” Active Response, 2008 WL 2952809, at *5. We conclude that these sorts of ISP-type harms are what Congress had in mind.11 [11 In their amicus brief, ASIS Internet Services, Joel Householter, and Ritchie Phillips (collectively, “ASIS”) argue that “harm” for CAN-SPAM standing purposes is merely “the cost of carrying SPAM emails over the [Internet access provider]’s facilities.” This view contradicts the plain text of the statute and the legislative goal of limiting the private right of action. No court has adopted this position, and we reject it as well. Congress stated that the private standing provision of § 7706(g)(1) “could include a service provider who carried unlawful spam over its facilities, or who operated a website or online service from which recipient e-mail addresses were harvested in connection with a violation.” S. Rep. No. 108-102, at 21 (emphasis added). In this context, the term “could,” which has a different meaning than “would,” see Rosas v. Monroe County Tax Claim Bureau, 323 B.R. 893, 900 (Bankr. M.D. Pa. 2004) (“There is a clear difference between the plain meaning of the words ‘could’, ‘might’ and ‘will.’ ”), implies that encountering spam is merely a component of the standing equation. Some qualifying harm must follow.] -20- Courts must of course be careful to distinguish the ordinary costs and burdens associated with operating an Internet access service from actual harm. We expect a legitimate service provider to secure adequate bandwidth and storage capacity and take reasonable precautions, such as implementing spam filters, as part of its normal operations. Courts should take an especially hard look at the cited harm if it suspects at the outset that a plaintiff is not operating a bona fide Internet access service, as is the case here. Defining the type of harm required for CAN-SPAM Act standing is, however, only one part of the equation. Section [11] To give the statutory text meaning there must be, at bare minimum, a demonstrated relationship between purported harms and the type of e-mail practices regulated by the Act—i.e., a showing that the identified concerns are linked in some meaningful way to unwanted spam and, in turn, represent actual harm. The e-mails at issue in a particular case must, at the very least, contribute to a larger, collective spam problem that caused ISP-type harms.12 [12 Whether a private plaintiff must allege and prove that the defendant’s particular e-mails caused ISP-type harms has been a point of conflict among district courts. While summary judgment in our case did not turn on a lack of causation, the district court’s order has contributed to the confusion within our circuit. In finding a lack of “adverse effect” to support standing, the district court remarked that Gordon and Omni “have alleged absolutely no financial hardship or expense due to e-mails they received from Defendants.” Gordon, 2007 WL 1459395, at *8 (emphasis added). Subsequent courts have interpreted this language to impose upon private plaintiffs the burden of showing that a defendant’s e-mails directly caused the harm alleged. See Optin Global, 2008 WL 1902217, at *17 (“While there is some evidence that spam generally has imposed costs on ASIS over the years, there is no evidence that the Emails at issue in this action resulted in adverse effects to ASIS . . . .” ); Brosnan, 2008 WL 413732, at *2-*3 (dismissing sua sponte plaintiff’s CAN-SPAM Act claims for lack of standing and citing Gordon for the proposition that “[t]he plaintiff must have suffered actual adverse effects as a result of Defendant’s actions”) As some subsequent courts have cautioned, we are troubled by the possibility that imposing a direct causation requirement, although not inconsistent with the statutory text, might create an unworkable standard for private plaintiff standing given the impracticability of tracing a harm to a specific e-mail or batch of e-mails. See Active Response, 2008 WL 2952809, at *5. This reading erects a barrier that could in some situations insulate wrongdoers, especially less prolific spammers, from private enforcement actions. Nevertheless, our holding today does not foreclose this possible interpretation of § 7706(g)(1). We reserve this determination for another case where the issue is squarely presented to us and adequately briefed by the parties.] -22- b In opposition to Virtumundo’s summary judgment motion, Gordon argued that he had been adversely affected by spam [12] Gordon has failed to argue, let alone come forth with evidence, that, even if he was an IAS provider, he has suffered any real harm contemplated by the CAN-SPAM Act. He has not hired additional personnel, nor has he experienced technical concerns or incurred costs that can be necessarily attributed to commercial e-mail. It is also compelling that Gordon purposefully refuses to implement spam filters in a typical manner or otherwise make any attempt to block allegedly unwanted spam or exclude such messages from users’ email inboxes. In fact, Gordon acknowledges that he was able to “blacklist” domain names at the server level, so that the GoDaddy server would reject e-mails from online marketers such as Virtumundo. Still, even without taking even basic precautions, he has not “come close” to using the 500 gigabytes of bandwidth available to him through GoDaddy. He has presented nothing beyond the negligible burdens typically experienced by bona fide IAS providers. As the district court concluded, Gordon has “suffered no harm related to bandwidth, hardware, Internet connectivity, network integrity, overhead costs, fees, staffing, or equipment costs.” Gordon, 2007 WL 1459395, at *8. Indeed, given his heavy dependence on the [13 We also note that there may be significance in distinguishing Gordon from Omni, a non-party to this appeal. See Real Marketing Servs., LLC v. Protocol Commc’ns, Inc. (In re Real Marketing Servs., LLC), 309 B.R. 783, 788 (Bankr. S.D. Cal. 2004) (holding that managing member lacked standing to bring claims for damages of LLC), relied upon in Finley v. Takisaki, No. 05-1118, 2006 WL 1169794, at *2-*3 (W.D. Wash. Apr. 28, 2006) (holding that, under Washington law, LLC members lacked standing because their claimed loss derived solely from their membership in the LLC); see generally United States v. Stonehill, 83 F.3d 1156, 1160 (9th Cir. 1996) (“Well-established principles of corporate law prevent a shareholder from bringing an individual direct cause of action for an injury done to the corporation or its property by a third party.”). The record is murky as to the distinction, due largely to Gordon’s inability to distinguish himself as an individual from his capacity as Omni’s agent. Because Omni has been dismissed from this appeal, Gordon’s claims are even weaker.] Gordon’s claimed harms almost exclusively relate to litigation preparation, not to the operation of a bona fide service. Gordon made no real effort to avoid, block, or delete commercial e-mail, but instead has voluntarily assumed the role of a spam sleuth. He expends time and resources seeking out and capturing massive volumes of spam, which he collects and then organizes for use in his prolific lawsuits. He admits setting up domains as “spam traps” with the sole purpose of [14 Gordon has filed and continues to file numerous actions in state and federal courts against various defendants, often representing himself pro se. As the district court noted, in 2006 and 2007, Omni was a party to 10 other lawsuits pending in the Western District of Washington alone. Gordon admits operating an anti-spam business, which entails, in his words, “[n]otifying spammers that they’re violating the law” and filing lawsuits if they do not stop sending spam.15 As Gordon concedes, he is a professional plaintiff. Reply Br. of Appellant at 5. Since at least 2004, Gordon has held no employment. He has never been compensated for any of his purported Internet services, and his only income source has come from monetary settlements from his anti-spam litigation campaign. Likewise, his company, Omni, generates no revenue and is financed strictly through these lawsuits against e-mail marketers. While the term “professional,” as in “professional plaintiff,” is not a “dirty word,” see Murray v. GMAC Mortgage Corp., 434 F.3d 948, 954 (7th Cir. 2006), and should not itself undermine one’s ability to seek redress for injuries suffered, Gordon’s status is uniquely relevant to the statutory standing question here. Cf. Hypertouch, 2006 WL 648688, at *4 n.2 (rejecting defendant’s argument that Hypertouch was a “professional plaintiff” that entered the ISP business for the sole purpose of bringing anti-spam lawsuits). [15 As should be apparent here, “the law” that Gordon purportedly enforces relates more to his subjective view of what the law ought to be, and differs substantially from the law itself.] [13] Because we are tasked with determining whether Gordon has been adversely affected by conduct regulated by the CAN-SPAM Act, it is highly significant that the burdens Gordon complains of are almost exclusively self-imposed and purposefully undertaken. Here, Gordon acknowledges that he benefits from the receipt of spam through his research and monetary settlements. The fact that Gordon derives substantial financial benefit but endures no real ISP-type harm from commercial e-mail, coupled with his unusual efforts to seek out and accumulate—rather than avoid or block—spam, dem- We do not discount the harmful effects spam and spamming practices, both lawful and unlawful, have upon businesses and consumers, and we recognize the need of bona fide IAS providers, both small and large, for a legal remedy against law-breaking spammers. We, like Congress, are sympathetic to legitimate operations hampered by a deluge of unwanted e-mail marketing. Our record, however, conclusively demonstrates that this is not the case before us. Gordon has created a cottage industry where he and his “clients” set themselves up to profit from litigation. The CAN-SPAM Act was enacted to protect individuals and legitimate businesses—not to support a litigation mill for entrepreneurs like Gordon. [14] As discussed above, it is undisputed that Gordon encounters huge quantities of commercial e-mail. Nevertheless, he is neither a bona fide IAS provider nor has he been adversely affected by alleged violations of the CAN-SPAM Act. We conclude that Gordon lacks standing to pursue claims under § 7706(g)(1), and affirm the district court’s summary judgment dismissal of all his federal claims. IV Gordon also appeals the adverse summary judgment dismissing his claims for alleged violations of CEMA, Washington’s statute regulating commercial e-mail messages. See Wash. Rev. Code § 19.190.010 et seq. Like many other states, Washington has enacted legislation that seeks to curb e-mail abuses. CEMA states in relevant part: (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 (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. Wash. Rev. Code § 19.190.020. The statute also prohibits certain practices aimed at inducing a person to reveal personally identifying information. Wash. Rev. Code § 19.190.080. Like its federal counterpart, CEMA provides for sizeable statutory damages or actual damages, whichever is greater.16 Wash. Rev. Code § 19.190.040. [16 CEMA provides for greater per-violation statutory damages than the CAN-SPAM Act. A recipient of commercial e-mail or electronic text messages may recover $500 per violation, and an “interactive computer service” may recover $1,000 per violation. Wash. Rev. Code § 19.190.040. A At the outset, we must frame the issue as it comes to us. First, Virtumundo does not contest Gordon’s standing to bring CEMA claims. In contrast to the more restrictive standing requirement of the CAN-SPAM Act, CEMA authorizes a recipient of a commercial e-mail message or an “interactive -28- Therefore, Gordon’s CEMA claims, by nature of the state statute, are limited to the information contained in the email headers and subject lines. We further conclude, however, that summary judgment was properly granted on Gordon’s claim that Virtumundo’s e-mail subject lines are deceptive. In opposition to Virtumundo’s summary judgment motion, Gordon failed to identify or describe any specific e-mail or subject line text and simply countered that “Gordon contests” the position that the subject lines are not misleading. Gordon does not attempt to better articulate this claim on appeal. [15] The “party opposing summary judgment must direct [the court’s] attention to specific, triable facts,” S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003), and the reviewing court is “not required to comb through the record to find some reason to deny a motion for summary judgment,” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). See Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003) (“[The nonmoving party] cannot defeat summary judgment with allegations in the complaint, or with unsupported conjecture or conclusory statements.”). Because Gordon has failed to present a prima facie case in opposition to summary judgment, his claim that Virtumundo’s subject lines violate CEMA fails as a matter of law, and summary judgment was appropriate. -29- B 1 As a preliminary matter, the Attorney General for the State of Washington (“State”), appearing here as amicus curiae, insists that we need not reach the preemption issue. See Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (“We may affirm a district court’s judgment on any ground supported by the record, whether or not the decision of the district court relied on the same grounds or reasoning we adopt.”). The State argues that we may affirm summary judgment with respect to this CEMA claim because Gordon’s allegations regarding the header information do not satisfy “Washington’s well-developed deceptiveness standard,” as a matter of law. We have surveyed the legal landscape and note a fatal shortcoming in the State’s proposition. CEMA prohibits the sending of commercial e-mail that “misrepresents or obscures any information in identifying the point of origin or the transmission path.” Wash. Rev. Code § 19.190.020(1)(a). The standard for “deception” under Washington law is thus only relevant to the extent courts so limit the broad language of CEMA—a critical step that the State overlooks entirely. In Benson v. Oregon Processing Service, Inc., 150 P.3d 154 (Wash. Ct. App. 2007), review denied, 175 P.3d 1092 (Wash. 2007), the state appellate court interpreted the previously undefined terms “misrepresent” and “obscure” according to their ordinary dictionary meaning—i.e., “misrepresent” to [16] In short, we cannot conclude, as the State presumes, that CEMA’s prohibitions extend only to acts of deception. The Washington Legislature or state courts may ultimately mold CEMA’s broad language so as to cabin its breadth or interpret the law in conformity with federal legislation. This task is, however, a matter for the State, as sovereign, to resolve.17 [17 We acknowledge, however, that the State’s proposed interpretation is not unfounded. Some state court decisions imply a narrow interpretation of CEMA. See State v. Heckel, 24 P.3d 404, 412-13 (Wash. 2001) (en banc) (“Heckel I”) (commenting that “[CEMA] reaches only those deceptive -31- We therefore turn, as we must, to whether summary judgment was proper under the doctrine of preemption. As recently noted by a district court, “[t]here is no Ninth Circuit authority on whether Plaintiff’s claim under the provision of CEMA . . . is preempted by CAN-SPAM.” Fergusen, 2008 WL 3166307, at *7. Indeed, the scope of the CAN-SPAM Act’s preemption is an issue of first impression in this circuit. See ASIS Internet Servs. v. Consumerbargaingiveaways, LLC, No. 08-04856, 2009 WL 1035538, at *5 (N.D. Cal. Apr. 17, 2009). The concept of preemption derives from the Supremacy Clause of the United States Constitution, which provides that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. “Consistent with that command, we have long recognized that state laws that conflict with federal law are ‘without effect.’ ” Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). Courts typically identify three circumstances in which federal preemption of state law exists: (1) express preemption, where Congress explicitly defines the extent to which its enactments preempt state law; (2) field preemption, where state law attempts to regulate conduct in a field that Congress intended the federal law exclusively to occupy; and (3) conflict preemption, where it is impossible to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress. Indus. Truck Ass’n, 125 F.3d at 1309 (citing English v. Gen. Elec. Co., 496 U.S. 72, 78-80 (1990)). When interpreting the Although the analysis of the scope of preemption begins with the text, “interpretation of that language does not occur in a contextual vacuum.” Id. at 484-85. Rather, this inquiry is guided by two principles about the nature of preemption. First, there is a presumption against supplanting “the historic police powers of the States” by federal legislation “unless that [is] the clear and manifest purpose of Congress.” Id. at 485. “This presumption against preemption leads us to the principle that express preemption statutory provisions should be given narrow interpretation.” Air Conditioning & Refrigeration Inst. v. Energy Res. Conservation & Dev. Comm’n, 410 F.3d 492, 496 (9th Cir. 2005). Second, the preemption analysis is guided by the “oft-repeated comment . . . that the purpose of Congress is the ultimate touchstone in every preemption case.” Medtronic, 518 U.S. at 485 (quotations and brackets omitted). “As a result, any understanding of the scope of a pre-emption statute must rest primarily on a fair understanding of congressional purpose,” and calls for courts to consider not only the language of the statute itself but also the “statutory framework” surrounding it and the “structure and purpose of the statute as a whole.” Id. at 485-86 (quotations omitted); accord Altria Group, 129 S. Ct. at 543 (“Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose.”). With this framework in mind, we review the preemption clause of the CAN-SPAM Act, which states in relevant part: This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any 15 U.S.C. § 7707(b)(1). The following subsection adds further clarity: Congress reiterated that the preemption clause “shall not be construed to preempt the applicability of—(A) State laws that are not specific to electronic mail, including State trespass, contract, or tort law; or (B) other State laws to the extent that those laws relate to acts of fraud or computer crime.” 15 U.S.C. § 7707(b)(2) (emphasis added). Thus, the express language of § 7707(b) demonstrates Congress’s intent that the CAN-SPAM Act broadly preempt state regulation of commercial e-mail with limited, narrow exception. Congress carved out from preemption state laws that proscribe “falsity or deception” in commercial e-mail communications. To date, the Fourth Circuit’s opinion in Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348 (4th Cir. 2006), is the only federal circuit court decision addressing preemption of state law claims by the CAN-SPAM Act. In Omega, Mummagraphics alleged violations of the CAN-SPAM [18 The Oklahoma statute prohibited the initiation of an e-mail message that the sender knows or has reason to know “[m]isrepresents any information in identifying the point of origin or the transmission path of the electronic mail message,” “[d]oes not contain information identifying the point of origin or the transmission path of the electronic mail message,” or “[c]ontains false, malicious, or misleading information which purposely or negligently injures a person.” Okla. Stat. tit. 15, § 776.1(A). 19 As a matter of clarity, the district court’s summary judgment order mistakenly refers to Mummagraphics as the “plaintiff.” Mummagraphics was a defendant in the underlying lawsuit and had alleged violations of the CAN-SPAM Act and Oklahoma law as counterclaims against plaintiff, Omega World Travel. Omega, 469 F.3d at 352.] Having independently analyzed the CAN-SPAM Act’s text, structure, and legislative purpose, we reach the same conclusion as the district court and the Fourth Circuit,20 and interpret the CAN-SPAM Act’s express preemption clause in a manner that preserves Congress’s intended purpose—i.e., to regulate commercial e-mail “on a nationwide basis,” 15 U.S.C. § 7701(b)(1), and to save from preemption only “statutes, regulations, or rules that target fraud or deception,” S. Rep. No. [20 Our reliance on Omega is limited to the Fourth Circuit’s interpretation of the CAN-SPAM Act’s preemption clause. We pass no judgment on whether summary judgment was appropriate based on the unique facts of that particular case.] As with any issue of statutory interpretation, we start with the text itself. The CAN-SPAM Act’s preemption clause makes an exception for state laws that prohibit “falsity or deception” in commercial e-mail communication. 15 U.S.C. § 7707(b)(1). Because those terms are not defined in the statute, they should be given their ordinary meaning. Emmert Recognizing the same ambiguity, the Fourth Circuit applied the maxim of noscitur a sociis, a canon of statutory construction that “counsels that a word is given more precise content by the neighboring words with which it is associated.” United States v. Williams, 128 S. Ct. 1830, 1839 (2008). Reading “falsity” in conjunction with “deception,” which connotes a type of tort action based on misrepresentations, we are likewise persuaded that the exception language, read as Congress intended, refers to “traditionally tortious or wrongful conduct.” Omega, 469 F.3d at 354. We find further support for this reading in the statutory text, which counsels against any interpretation that preempts laws relating to “acts of fraud.” See 15 U.S.C. § 7707(b)(2). Indeed, the Committee explained that while “a State law requiring some or all commercial email to carry specific types of labels, or to follow a certain format or contain specified content, would be preempted[,] . . . a State law prohibiting fraudulent or deceptive headers, subject lines, or content in commercial e-mail would not be preempted.” S. Rep. No. 108-102, at 21 (emphasis added); see also 150 Cong. Rec. at E73-01 (recognizing broad preemption, except state laws prohibiting falsification techniques and Further scrutiny of congressional intent solidifies our reading of the preemption clause. As discussed supra, the CAN-SPAM Act prohibits only deceptive subject line headings or materially false or materially misleading header information. See 15 U.S.C. § 7704(a); accord 15 U.S.C. § 7701(b)(2) (“[S]enders of commercial electronic mail should not mislead recipients as to the source or content of such mail.” (emphasis added)). Significantly, Congress intended this standard to regulate commercial e-mail messaging practices “on a nationwide basis.”21 15 U.S.C. § 7701(b)(1). It was because the patchwork of state laws had proven ineffective that Congress sought to implement “one national standard,” S. Rep. No. 108-102, at 21, applicable across jurisdictions. The CAN-SPAM Act expresses this goal: [21 The State argues that this policy goal does not extend to illegitimate commercial behavior, such as unfair or deceptive business practices. This argument, however, begs the question. Whether the exception language of § 7707(b) permits states to prohibit e-mail activity that is not unfair or deceptive is precisely the issue before us.] Many states have enacted legislation intended to regulate or reduce unsolicited commercial electronic mail, but these statutes impose different standards and requirements. As a result, they do not appear to have been successful in addressing the problems associated with unsolicited commercial electronic mail, in part because, since an electronic mail address does not specify a geographic location, it can be extremely difficult for law-abiding businesses to know with which of these disparate statutes they are required to comply. [17] It would be logically incongruous to conclude that Congress endeavored to erect a uniform standard but simultaneously left states and local lawmakers free to manipulate that standard to create more burdensome regulation. We are compelled to adopt a reading of the preemption clause that conforms with the statute’s structure as a whole and the stated legislative purpose. See 15 U.S.C. § 7701(b)(1). The CAN-SPAM Act established a national standard, but left the individual Applying its proper reading, the CAN-SPAM Act’s preemption clause applies here and undermines Gordon’s There is of course nothing inherently deceptive in Virtumundo’s use of fanciful domain names. See 15 U.S.C. § 7702(4); S. Rep. No. 108-102, at 3 (recognizing Microsoft’s “msn” and “hotmail” domains used for e-mail services). Gordon agrees that the domains from which these e-mails were sent—e.g., “vmmail.com,” “vmadmin.com,” “vtarget.com,” and “vmlocal.com”—were properly registered to Virtumundo. Gordon further concedes that a WHOIS search, or a similar reverse-look-up database, accurately identifies Virtumundo as the domain registrant and provides other identifying information.22 Gordon complains that in order to ascertain the actual identity of the e-mails’ sender a recipient must either review the message content or consult a WHOIS-type database. He insists that any practice that requires consumers to engage in an extra step violates CEMA. [22 WHOIS is a publically available online database through which users can access information regarding domains, including the registrant’s name, address, phone number, and e-mail address. See Definitions, Implementation, and Reporting Requirements Under the CAN-SPAM Act, 70 Fed. Reg. 25,426, 25,446 n.233 (proposed May 12, 2005) (to be codified at 16 C.F.R pt. 316). WHOIS data is compiled by registrars from information submitted by registrants.] [18] Nothing contained in this claim rises to the level of “falsity or deception” within the meaning of the CAN-SPAM Gordon further suggests that the only information that could be used in the “from name” field that would not misrepresent is the name of the “person or entity who actually sent the e-mail, or perhaps . . . the person or entity who hired the [sender] to send the email on their behalf.” In other words, he argues that CEMA’s provisions require that “Virtumundo” or a client’s name expressly appear in the “from lines.” The CAN-SPAM Act does not impose such a requirement. To the extent such a content or labeling requirement may exist under state law, it is clearly subject to preemption. See S. Rep. No. 108-102, at 21-22 (“State law requiring some or all commercial e-mail to carry specific types of labels . . . or contain specified content, would be preempted.”); see also Kleffman, 2007 WL 1518650, at *3 (“[T]he claim that the failure to include Vonage’s name in the email is clearly preempted.”). [19] In sum, Gordon’s alleged header deficiencies relate to, at most, non-deceptive statements or omissions and a heightened content or labeling requirement. Regardless of the merits of his arguments, assuming they are actionable under CEMA, [23 The State argues against preemption, citing Beyond Systems, Inc. v. Keynetics, Inc., 422 F. Supp. 2d 523 (D. Md. 2006). The district court there denied defendants’ motion to dismiss, concluding that the CAN-SPAM Act did not preempt Maryland’s Commercial Electronic Mail Act, Md. Code Ann., Com. Law § 14-3001 et seq. (“MCEMA”), a statute modeled after Washington’s CEMA. Id. at 532 n.11 & 537—38. The State, without offering much in the way of independent analysis or explanation, contends that “[b]ecause CEMA is substantially identical to MCEMA, this Court should apply the same preemption analysis and find that CEMA is not preempted by CAN-SPAM.” We decline this invitation. Notwithstanding the non-precedential nature of a district court opinion from another circuit, see United States v. Ensminger, 567 F.3d 587, 591 (9th Cir. 2009), we find Beyond Systems to be of no persuasive value here. Unlike the Maryland district court, we are reviewing summary judgment on a well-developed record. More significantly, however, we view its preemption analysis as flawed. Without considering the factual allegations underlying the plaintiff’s claims, the court there held that MCEMA was not inconsistent with the goals of the CAN-SPAM Act and that “insofar as a state statute is not inconsistent with CAN-SPAM, it will not be deemed pre-empted.” Beyond Sys., 422 F. Supp. 2d at 537 -38. The Maryland court not only fundamentally misconstrued the legislative purpose of the federal act, its analysis also belies the doctrine of express preemption. Indeed, the sole authority upon which the court relied dealt with field preemption—not, as was the case before it (or as is the case here), express preemption. See Colo. Anti-Discrimination Comm’n v. Continental Air Lines, 372 U.S. 714, 723 (1963) (finding “no express or implied [congressional] intent to bar state legislation in this field” and upholding a state statute barring discriminatory hiring practices by airlines).] V Gordon also appeals summary judgment of his claim that [24 The CAN-SPAM Act does not preempt CPA claims generally. The preemption clause states that the federal act will not preempt the applicability of state laws not specific to commercial e-mail. 15 U.S.C. § 7707(b)(2). 25 Section 19.190.030 states, in relevant part: (1) It is a violation of the consumer protection act, chapter 19.86 RCW, to conspire with another person to initiate the transmission or to initiate the transmission of a commercial electronic mail message 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. Wash. Rev. Code § 19.190.030.] [20] Gordon primarily relies upon alleged CEMA violations to establish his CPA claim. Because his CEMA claims fail as a matter of law, his CPA claims, to the extent grounded in CEMA violations, are likewise inadequate and were properly dismissed. [21] To the extent that Gordon also brings independent CPA claims, they too fail. Gordon has failed to identify an act or practice that “misleads or misrepresents something of material importance.” Nguyen v. Doak Homes, Inc., 167 P.3d 1162, 1166 (Wash. Ct. App. 2007) (emphasis added); accord Robinson v. Avis Rent A Car Sys., Inc., 22 P.3d 818, 824 (Wash. Ct. App. 2001) (“[K]nowing failure to reveal some- Additionally, in order to succeed on a CPA claim, “[a] plaintiff must establish that, but for the defendant’s unfair or deceptive practice, the plaintiff would not have suffered an injury.” Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 170 P.3d 10, 22 (Wash. 2007). Here, Gordon seeks only statutory damages and, despite more than adequate opportunity, has made no attempt to show that Virtumundo proximately caused him actual harm. Because Gordon has failed in his burden to provide sufficient evidence to establish an essential element of this cause of action, his CPA claims must also fail as a matter of law. See River City Markets, Inc. v. Fleming Foods West, Inc., 960 F.2d 1458, 1462 (9th Cir. 1992). VI We briefly address Gordon’s remaining arguments and assignments of error on appeal. His claim that summary judgment violated the Seventh Amendment is devoid of merit. “As the Supreme Court held, over one hundred years ago, a summary judgment proceeding does not deprive the losing party of its Seventh Amendment right to a jury trial.” In re Slatkin, 525 F.3d 805, 811 (9th Cir. 2008) (citing Fid. & Deposit Co. of Md. v. United States, 187 U.S. 315, 319-21 (1902)). Further, Gordon, dissatisfied with the result in the Western District of Washington, cannot now challenge his initial choice of venue on appeal. See generally Olberding v. Ill. Cent. R.R. Co., 346 U.S. 338, 340 (1953) (noting that the plaintiff relinquishes his right to object to venue by bringing his lawsuit in “[j]udges are not like pigs, hunting for truffles buried in briefs” (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991))). VII In summary, Gordon lacks statutory standing to bring a private action for alleged violations of the CAN-SPAM Act. His state law claims fail as a matter of law because they are precluded by the Act’s express preemption clause and because he has failed to demonstrate that a genuine issue of material fact exists. Accordingly, we affirm the district court’s order of summary judgment. All parties shall bear their own costs on appeal. AFFIRMED. GOULD, Circuit Judge, concurring: The most pertinent conclusion for me in this case, one that I reach after a careful evaluation of the district court’s comprehensive factual findings and cogent legal analysis, is that Gordon was seeking to use the CAN-SPAM Act to build a litigation factory for his personal financial benefit. For the reasons amply explained by Judge Tallman’s fine opinion, the I write separately to add this comment. In the long course of Anglo-American law, development of the common law has normally occurred in ways that gave legal remedies to persons who cried out for relief against a perceived injustice. See , e.g., Oliver Wendell Holmes, Jr., The Common Law 37 (Dover Pubs. 1991) (1881) (“[T]he various forms of liability known to modern law spring from the common ground of revenge.”). The body of the common law that we know as contract law developed from the need to provide remedies when certain promises were broken and more ancient common law writs were inadequate. See id. at 274-75 (tracing history of contracts to the writ of “trespass on the case,” which developed because “there were many cases which did not exactly fall within the definition of trespass, but for which it was proper that a remedy should be furnished”). Similarly, tort law has for centuries expanded1 to cover new types of claims where wrong had caused damage. See id. at 162-63 (stating that tort law is “continually adding to its specific rules” based on “[t]he tendency of a given act to cause harm under given circumstances,” rules “which must be determined by experience”). [1 An example of this expansion is seen in Judge Cardozo’s famous opinion in MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916), which did much to influence the demise of the privity barrier and opened the way for claims by any person injured by a manufacturer’s negligence. See Dan B. Dobbs, The Law of Torts § 353 (2001) (“Judge Cardozo substantially abolished the privity rule for negligence cases in the famous MacPherson case . . . .” ).] -45- Thus the common law developed ample remedies for persons who had suffered grievous harms, but, as I understand the history of our common law, it did not develop remedies for people who gratuitously created circumstances that would support a legal claim and acted with the chief aim of collecting a damage award.2 See Charles T. McCormick, Law of [2 Here of course we deal with a statute, the CAN-SPAM Act, and it is sometimes thought that statutory law is separate from the common law. However, on close examination, many distinctions between common law and statutory law disappear. The English common law, for example, was built in part upon ancient statutory law which, even once it was no longer applicable, had created usages and customs from which the common law developed. See , e.g., Sir Matthew Hale, The History of the Common Law of England, ch. 1, (Charles M. Gray ed., 1971) (1713) (“[M]any of those Things that now obtain as Common Law, had their Original by Parliamentary Acts or Constitutions, made in Writing by the King, Lords and Commons; though those Acts are now either not extant, or if extant, were made before Time of Memory . . . .” ); 2 Sir William Searle Holdsworth, A History of English Law 145-46 (3d ed. 1922) (discussing formation of English common law after the Norman Conquest and concluding that “the influence of the civil and canon law is perhaps the most important of all the external influences which have shaped the development of English law”). Similarly, when we consider statutory law, the United States Supreme Court has told us that we are to presume that Congress has acted with knowledge of the prior common law. See Astoria Federal Sav. and Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (“Congress is understood to legislate against a background of common-law adjudicatory principles.”).] Judge Tallman’s opinion rightly focuses on language in the legislative history stating that only bona fide IAS providers should have statutory standing. I would presume a bona fide requirement even without this legislative history because Congress provided a private right of action for CAN-SPAM There are a few areas in which our developing statutory law has embraced the concept of permitting claims by those who insert themselves in the controversy for the express purpose of creating a lawsuit. One of the best examples is that we accord standing to those who “test” for discrimination in housing by feigning interest in a housing site. See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74 (1982). There may be good reasons for allowing this practice as a way to strengthen the enforcement of housing discrimination laws, and Congress provided a broad standing provision for private actors. In permitting standing for testers, the Supreme Court reasoned that Congress “conferred on all ‘persons’ a legal right to truthful information about available housing” and “plainly omitted” a “bona fide” requirement for standing when it explicitly required one elsewhere in the same section of the fair housing statute. Id. Similarly, we accord standing to individuals who sue defendants that fail to provide access to the disabled in public accommodation as required by the Americans with Disabilities Act (“ADA”), even if we suspect that such plaintiffs are hunting for violations just to file lawsuits. See Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1061-62 (9th Cir. 2007) [3 Evergreen Dynasty also involved state disability claims under California’s Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq., and the standing provisions under that statute are similarly broad. See Cal. Civ. Code § 52(a) (holding that violators of the Act are liable to “any person denied the rights” guaranteed by the Act); Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) (holding that under the Unruh Act, “proof of actual damages is not a prerequisite to recovery of statutory minimum damages”); cf. Evergreen Dynasty, 500 F.3d at 1060 n.6 (citing cases suggesting that in general “statutory damages do not require proof of injury”).] We should not extend the concept of “tester” standing to an area where we do not have confidence that Congress intended to empower anyone to make claims. Unlike the broad standing provisions in the housing discrimination laws and the ADA, here the CAN-SPAM statutory language grants a private right of action not to “all persons” regardless of injury, but only to IAS providers who suffer adverse effect. These requirements make clear that a litigation-seeking party in Gordon’s circumstances has no standing to proceed under the CAN-SPAM Act.
|
Shameless Self-Promotion
Subscribe to SpamsuiteUpcoming DatesNavigationUser loginRecent comments
Read Our Feed |
![[file]](http://www.spamsuite.com/icons//pdf.gif "Download 9thCirOpinion.pdf"){kind=icon}
Post new comment