Rosolowski v. Guthy-Renker LLC

The first amended complaint was filed on behalf of lead plaintiff Greg Rosolowski and 45 individual coplaintiffs, who collectively sought to be class representatives to represent a larger class. A number of the allegedly offending e-mails were attached as exhibits to the pleading. For example, exhibit A included an e-mail bearing the subject line “Exclusive WEN Deal: Complimentary Shipping, ” and it originated “From: Wen Hair Care ([email protected]).”

2. Demurrer.

Guthy demurred, contending Plaintiffs’ claims should be dismissed because they were preempted by federal law, specifically, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ( 15 U.S.C. § 7701 et seq.) (the CAN-SPAM Act), which preempts claims under section 17529.5, unless header or subject lines are materially false or misleading; the “from” lines contained famous brand names, identified with Guthy, the business entity whose name and address were set forth in the body of the same e-mail; and the subject lines of the e-mails accurately referred to a “free” or “complimentary” gift and were not actionable.

3. Opposition to demurrer.

In opposition, Plaintiffs argued the e-mails violated section 17529.5, subdivision (a)(2), in that the names appearing on the “from” lines could not be traced to Guthy by way of an online database such as WHOIS, and also violated section 17529.5, subdivision (a)(3) because the subject lines represented the recipients were entitled to a free or complimentary gift, without mentioning such gift was contingent upon a purchase.

Plaintiffs further contended their claims were not preempted by the federal CAN-SPAM Act due to material deception (1) in the header line, which concealed the identity of the sender, namely Guthy, and (2) in the subject line, which enticed the recipients with the promise of free gifts, but the gifts came with strings attached.

4. Trial court’s ruling.

The trial court sustained Guthy’s demurrer to the first amended complaint without leave to amend, and set forth its rationale as follows:

“Since the ‘Sender’ line does not identify defendant Guthy-Renker by name and instead uses the name of defendant’s various products, [Plaintiffs] collectively allege ‘its spams say they are coming from people and companies that don’t even exist.’ . . . This is akin to complaining that an email from ‘Buick’ is falsely labeled because, in [Plaintiffs’] view, the sender should read ‘General Motors Corporation.’ The Court holds as a matter of law that this is not a material misrepresentation sufficient to overcome CAN-SPAM preemption. Kle ffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334 , 345-347 [ 110 Cal.Rptr.3d 628 , 232 P.3d 625 ].

“The various ‘Subject’ lines are criticized as ‘making affirmatively false material representations to the effect that the recipient is entitled to a free or complimentary gift.’ . . . The email text which emerges if one clicks to open, show that ‘free shipping’ is offered for an email saying so in the Subject line, that free shipping and a tube of Proactiv Oil Free Moisture is offered for an email saying so in the Subject line, and that free shipping and two free gifts are offered when the Subject line says ‘Get 33% More with New Wen Hair Care System plus Two Free Gifts and Free Shipping.’ The same is true as to the others presented, and no email is so simple as to merely offer a ‘Free Gift’ with nothing further said. Despite plaintiffs’ protests that they were duped by these emails, the Court holds as a matter of law that a reasonable sender would not have reason to believe that commercial missives like these were ‘likely to deceive a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.’ Thus, all of plaintiffs’ claims are subject to federal pre-emption under CAN-SPAM Act.”

In denying leave to amend, the trial court stated, “Plaintiffs have already put their cards on the table with the detailed pleading and the many emails attached thereto. A review of the theory of the case and the facts offered in support (as compared to the various matters pled as matters ‘for which Plaintiffs lack evidentiary support at the present time’ (First Amended Complaint f 6 (alleged self-destructing emails), f 7 (alleged faked online

Plaintiffs filed a timely notice of appeal from the judgment of dismissal.

CONTENTIONS

Plaintiffs contend the operative first amended complaint stated facts sufficient to state causes of action against Guthy for violations of section 17529.5, subdivision (a)(2) (misrepresented header information) and subdivision (a)(3) (misleading subject line), and the claims are not preempted by federal law.

DISCUSSION

1. Standard of appellate review.

In determining whether a plaintiff has properly stated a claim for relief, “our standard of review is clear: 1 “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ [Citations.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 , 1126 [ 119 Cal.Rptr.2d 709 , 45 P.3d 1171 ].) Our review is de novo. (Ibid.)

2. Overview of section 17529.5 and the CAN-SPAM Act.

a. Section 17529.5.

In 2003, “the California Legislature passed Senate Bill 186 ... , which imposed broad restrictions on advertising in unsolicited commercial e-mail

b. The CAN-SPAM Act.

Shortly after California adopted Senate Bill No. 186 (2003-2004 Reg. Sess.), Congress enacted the CAN-SPAM Act, which, like Senate Bill No. 186, was passed “ ‘in response to mounting concerns associated with the rapid growth of spam e-mails.’ [Citation.] The Act does ‘not ban spam outright, but rather provides a code of conduct to regulate commercial e-mail 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.” [Citation.] The Act also imposes requirements regarding content, format, and labeling. For instance, unsolicited e-mail 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. [Citation].’ [Citation.]” (Hypertouch, supra, 192 Cal.App.4th at p. 823.)

The CAN-SPAM Act “includes a provision that expressly preempts state statutes that regulate the use of commercial e-mail ‘except to the extent that any such statute . . . prohibits falsity or deception in any portion of a commercial [e-mail].’ ( 15 U.S.C. § 7707 (b)(1).) The preemption clause reflects one of the primary goals of the CAN-SPAM Act: to regulate commercial electronic mail ‘on a nationwide basis.’ ( 15 U.S.C. § 7701 (b)(1).) As stated in the congressional findings accompanying the Act, the federal statute was intended ... ‘to implement “one national standard” [citation]’ regarding the content of commercial e-mail because ‘the patchwork of state laws had proven ineffective . . . .’ [Citation.]” (Hypertouch, supra, 192 Cal.App.4th at p. 824.)

3. The Kleffman decision.

In Kleffman, the Supreme Court addressed “the scope of section 17529.5(a)(2), which makes it ‘unlawful ... to advertise in a commercial e-mail advertisement’ that ‘contains or is accompanied by falsified, misrepresented, or forged header information., ” (Kleffman, supra, 49 Cal.4th at pp. 339-340, italics added.)

Kleffman further found the use of a domain name in a single e-mail that “does not make clear the identity of either the sender or the merchant-advertiser on whose behalf the e-mail advertisement is sent” is not prohibited by section 17529.5, subdivision (a)(2). (Kleffman, supra, 49 Cal.4th at p. 345.) Kleffman determined such use does not in fact make any representation, express or implied, regarding the e-mail’s source. (Id. at pp. 345-346.) Kleffman also concluded that construing the statute otherwise would raise a substantial question with regard to federal preemption. (Kleffman, supra, at p. 346.)

While expressly declining to define the full scope of the statutory phrase “ ‘misrepresented . . . header information,’ ” Kleffman concluded: “[A] single e-mail with an accurate and traceable domain name neither contains nor is accompanied by ‘misrepresented . . . header information’ within the meaning of section 17529.5(a)(2) merely because its domain name is . . . ‘random,’ ‘varied,’ ‘garbled,’ and ‘nonsensical’ when viewed in conjunction with domain names used in other e-mails. An e-mail with an accurate and traceable domain name makes no affirmative representation or statement of fact that is false . . . [and] . . . cannot reasonably be understood to be an implied assertion that the source of that e-mail is different from the source of another e-mail containing a different domain name.” (Kleffman, supra, 49 Cal.4th at pp. 346-347 & fn. 11, fn. omitted.)

4. Irrespective of the allegedly untraceable domain names herein, the identity of the sender was readily ascertainable from the body of the e-mails; therefore, Plaintiffs failed to state a cause of action against Guthy for misrepresented header information under section 17529.5, subdivision (a)(2).

The instant case presents a different factual scenario than the one addressed by the Supreme Court in Kleffman in a critical respect. In Kleffman, it was undisputed “the domain names used to send Vonage’s e-mail advertisements, and reflected in the header information of these e-mail advertisements, actually exist and are technically accurate, literally correct, and fully traceable to Vonage’s marketing agents.” (Kleffman, supra, 49 Cal.4th at p. 340.)

The Klejfman court did not specify what is meant by a traceable domain name. It simply stated all 11 e-mails at issue could be “traced” to a single physical address in Nevada where Vonage’s marketing agent was located. (Kleffman, supra, 49 Cal.4th at p. 338.) There, it was undisputed “the domain names used to send Vonage’s e-mail advertisements, and reflected in the header information of these e-mail advertisements, actually exist[ed] and [were] technically accurate, literally correct, and fully traceable to Vonage’s marketing agents.” (Id. at p. 340.)

a. The Balsam decision.

Unlike Klejfman, where all of the domain names were accurate and traceable to the sender, in Balsam v. Trancos, Inc. (2012) 203 Cal.App.4th 1083 [ 138 Cal.Rptr.3d 108 ] (Balsam), “the domain names were not traceable to the actual sender. The header information [was) falsified’ or ‘misrepresented’ because Trancos deliberately created it to prevent the recipient from identifying who actually sent the message. Thus, the nonsensical domain name ‘misstepoutcome.com’ neither disclose[d] Trancos’s name nor [could] it be linked to Trancos using any public database. While, as Kleffman states, an e-mail with an accurate and traceable domain name makes no affirmative representation or statement of fact that is false, an e-mail with a made-up and untraceable domain name affirmatively and falsely represents the sender has no connection to Trancos.” (Balsam, supra, 203 Cal.App.4th at p. 1098, first italics added.) Balsam concluded Klejfman should be “read . . . commonsensically ... to mean that a domain name is ‘traceable’ to the sender if the recipient of an e-mail could ascertain the sender’s identity and physical address through the use of a publicly available database such as WHOIS.” (Balsam, supra, 203 Cal.App.4th at p. 1098.)

b. Body of the e-mails was sufficient to enable recipient to identify Guthy as the sender.

Guided by the above, we turn to the facts of the instant case. Although the identity of the sender of the subject e-mails in the “from” line could not be ascertained through the use of a publicly available database such as WHOIS, the body of the e-mails was sufficient to enable the recipient to identify Guthy as the sender. The e-mails were advertisements for Guthy’s various consumer brands. The e-mails provided a hyperlink to Guthy’s Web site, and provided an unsubscribe notice as well as a physical address in Palm Desert, California. Plaintiffs cannot plausibly allege that Guthy attempted to conceal its identity, as the clear purpose of the e-mails was to drive traffic to Guthy’s Web site. The complaint concedes as much, in that it alleged if a “recipient clicks in an email’s body, a link takes him to [Guthy’s] website where he is encouraged to make a purchase.”

Giving section 17529.5, subdivision (a)(2) a commonsense reading, as did the Balsam court, we conclude a header line does not misrepresent the identity of the sender merely because it does not identify the official name of the entity which sent the e-mail, or merely because it does not identify an entity whose domain name is traceable via a database such as WHOIS, provided the sender’s identity is readily ascertainable from the body of the e-mail, as was the case here.

5. Plaintiffs failed to state a cause of action on the theory the e-mails contained misleading subject lines (§ 17529.5, subdivision (a)(3)).

As indicated, section 17529.5, subdivision (a)(3), makes it unlawful for a commercial e-mail advertisement to contain “a subject line that a person

Plaintiffs alleged the subject lines in the various e-mails falsely represented that the recipients were entitled to a “free” or “complimentary” gift without mentioning that receipt of such a gift was contingent upon a purchase.

In sustaining the demurrer, the trial court ruled, “The email text which emerges if one clicks to open, show that ‘free shipping’ is offered for an email saying so in the Subject line, that free shipping and a tube of Proactiv Oil Free Moisture is offered for an email saying so in the Subject line, and that free shipping and two free gifts are offered when the Subject line says ‘Get 33% More with New Wen Hair Care System plus Two Free Gifts and Free Shipping.’ The same is true as to the others presented, and no email is so simple as to merely offer a ‘Free Gift’ with nothing further said. Despite plaintiffs’ protests that they were duped by these emails, the Court holds as a matter of law that a reasonable sender would not have reason to believe that commercial missives like these were ‘likely to deceive a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.’ ”

Plaintiffs acknowledge the e-mails, in their entirety, are not misleading because the body of the e-mails “make clear that receipt of [Guthy’s] ‘free’ gifts is conditional upon a purchase.” Nonetheless, Plaintiffs’ theory is that the e-mails are actionable because liability under section 17529.5, subdivision (a)(3), turns upon whether the e-mails’ subject lines are misleading, not whether the e-mails are misleading in their entirety. The argument is unpersuasive.

Again, giving section 17529.5, subdivision (a)(3) a commonsense reading (see Balsam, supra, 203 Cal.App.4th at p. 1098), we conclude, as did the trial court, that the subject lines were not likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message. (§ 17529.5, subd. (a)(3).) The e-mail advertisements plainly and conspicuously stated the conditional nature of the offer, so that an e-mail recipient, acting reasonably under the circumstances, would not be misled about a material fact with respect to the nature of the offer of a free gift or free shipping. Therefore, a reasonable sender would not have reason to believe the subject lines were likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message. (Ibid.)

Hypertouch reasoned, “If a subject line creates the impression that the content of the e-mail will allow the recipient to obtain a free gift by doing one act (such as opening the e-mail or participating in a single survey), and the content of the e-mail reveals that the ‘gift’ can only be obtained by undertaking more onerous tasks (such as paying money for the gift or agreeing to partake in other offers), the subject line is misleading about the contents of the e-mail.” (Hypertouch, supra, 192 Cal.App.4th at p. 838.)

Unlike Hypertouch, we view an e-mail’s subject line in conjunction with the body of the email, rather than in isolation. We conclude the subject lines’ offers of free gifts were not likely to mislead a recipient, acting reasonably under the circumstances, about a material fact (§ 17529.5, subd. (a)(3)), because the e-mail advertisements made it clear that a free gift was conditional upon a purchase. Accordingly, Plaintiffs failed to state a cause of action under section 17529.5, subdivision (a)(3).

6. Issue of federal preemption not reached.

Because we conclude Plaintiffs failed to state sufficient facts to allege violation of section 17529.5, subdivision (a)(2) (misrepresented header information) or subdivision (a)(3) (misleading subject lines), it is unnecessary to address Guthy’s argument the CAN-SPAM Act preempts Plaintiffs’ claims. (See Martin v. PacifiCare of California (2011) 198 Cal.App.4th 1390 , 1409 [ 130 Cal.Rptr.3d 714 ] [“Because we conclude [Health & Safety Code] section 1371.25 bars the Martins’ claims, we do not reach the question whether the Medicare Act preempts the Martins’ claims.”].)

The judgment of dismissal is affirmed. Respondent shall recover its costs on appeal.

Kitching, J., and Aldrich, J., concurred.