Our readers may recall a prior piece in which we discussed email marketing compliance, and a California statute which prohibits the sending of false or misleading unsolicited commercial email. With the marketing industry’s renewed reliance on email marketing, there is a corresponding increase in lawsuits alleging violations of California’s email marketing statute. Below, we discuss the facts and claims asserted in one such recent California State court lawsuit.
California Unsolicited Email Marketing Claims
In Rogers, et al. v. Rely Home, Inc., et al., Plaintiffs alleged that Defendants violated Section 17529.5 of the California Business and Professions Code (“CBPC”) by “spamming” consumers with unsolicited commercial email. Specifically, the Complaint alleged that Plaintiffs received, without their consent, 199 purportedly violative marketing emails which: (1) used third party domain names without the third-party’s permission for the prohibited purpose of sending unsolicited commercial email; (2) contained false and/or forged information in the email headers; and (3) contained subject lines which were misleading as to the content or subject matter of the emails. Plaintiffs further alleged that Defendants used non-readily traceable domain names to conceal their identities in violation of the CBPC, and that Defendants failed to establish and implement reasonable practices and procedures to prevent “unlawful spamming.” These actions, according to the allegations contained in the Complaint, demonstrate that Defendants acted willfully in sending Plaintiffs false and deceptive unsolicited email marketing.
The CBPC allows for the recovery of actual damages or $1,000 per email, plus the recovery of attorneys’ fees and costs. Accordingly, CBPC lawsuits can be extremely lucrative for the plaintiffs’ bar, while they can result in significant cost for marketers. In addition to CBPC compliance, companies that send unsolicited commercial email also must comply with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, commonly referred to as CAN-SPAM. The rise in email marketing, coupled with heightened regulatory scrutiny in the telemarketing space, is likely to result in significantly more federal and state-related action.
Email marketing companies are advised to hire experienced counsel to ensure that they comply with California State law, CAN-SPAM, and other applicable federal and state regulations.
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