James S. GORDON, Jr., an individual doing business as gordonworks.com v. VIRTUMUNDO, INC., a Delaware corporation; Adknowledge, Inc., a Delaware corporation; and Scott Lynn, an individual
No. 07-35487
United States Court of Appeals, Ninth Circuit
Filed Aug. 6, 2009
575 F.3d 1040
Timothy J. Walton, Walton & Rose, LLP, Palo Alto, CA, for plaintiff-appellant James S. Gordon, Jr.
Derek Newman (argued), Randall Moeller, Newman & Newman, Attorneys at Law, LLP, Seattle, WA, and Michael R. Geroe, General Counsel, Adknowledge,
Shannon E. Smith, Deputy Attorney General, Robert M. McKenna, Attorney General of Washington, Seattle, WA, for Amicus Curiae State of Washington.
Jason K. Singleton, Richard E. Grabow-ski, Singleton Law Group, Eureka, CA, for Amicus Curiae ASIS Internet Services, Joel Householter, and Ritchie Phillips.
Before RONALD M. GOULD, RICHARD C. TALLMAN, and CONSUELO M. CALLAHAN, Circuit Judges.
Opinion by Judge TALLMAN; Concurrence by Judge GOULD.
TALLMAN, Circuit Judge:
This case addresses unsolicited commercial e-mail, more commonly referred to as “spam.”1 While ignored by most and re-
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,
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 dam-
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
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 allows users to virtually access the server through an ordinary Internet connection—in Gordon‘s case, a broadband connection from Verizon. Through a virtual desktop called a “Plesk,” Gordon is able to manage his domain. He can post content on the Internet, create new e-mail accounts, and set user names and log-on passwords. There are, of course, substantial restrictions regarding Gordon‘s usage of the leased server space.
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
Soon thereafter, these accounts began receiving e-mails from businesses marketing their goods and services. Some of these messages were transmitted by online marketers, such as Virtumundo, on behalf of their clients. At his instruction, Gordon‘s “clients” relinquished control of their e-mail accounts. They then set up their own domains through GoDaddy, which they housed on the server space leased by Omni. This enabled these individuals to create their own e-mail addresses “@” personalized domain names—e.g., “anthonycentral.com,” “jaykaysplace.com,” and “chiefmusician.net“—rather than gordonworks.com.
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 CAN-SPAM Act,
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.”
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.
Gordon alone now appeals this grant of summary judgment.5
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
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, see Indus. Truck Ass‘n, Inc. v. Henry, 125 F.3d 1305, 1309 (9th Cir. 1997).
III
A
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 regulation of commercial electronic mail on a nationwide basis;
(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.
The CAN-SPAM Act‘s enforcement provision empowers the Federal Trade Commission, state attorneys general, and other state and federal agencies to pursue legal actions to enforce the Act‘s provisions.
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
We agree that Gordon lacks standing to bring a private action under the CAN-SPAM Act. We commend the district court‘s pioneering analysis in this uncharted territory, and reach a similar conclusion based on our assessment of the CAN-SPAM Act‘s statutory standing requirement and the appellate record.
B
As recognized by several courts, the case law regarding the relevant legal stan-
1
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 Mortgage, LLC, No. 07-4339, 2008 WL 413732, at *1-*2 (N.D. Cal. Feb. 13, 2008). Beyond that, however, the statutory standing provision read as a whole is ambiguous—a point upon which all parties agree. We therefore employ familiar techniques of statutory construction to evaluate Congress‘s intent with regard to both components and their relation to one another.
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 which it was passed and the object to be accomplished by it.” United States v. Curtis-Nev. Mines, Inc., 611 F.2d 1277, 1280 n. 1 (9th Cir. 1980) (quoting United States v. Anderson, 9 Wall. 56, 76 U.S. 56, 65-66, 19 L.Ed. 615 (1869)); accord Callejas v. McMahon, 750 F.2d 729, 731 (9th Cir. 1984). Therefore, especially in this highly technical and evolving field, “[c]ommon sense not dogma is what is needed in order to explore the actual meaning of legislative enactments.” Mt. Graham Red Squirrel, 954 F.2d at 1453.
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, the Act recognizes e-mail‘s value as a worthwhile commercial tool:
Electronic mail has become an extremely important and popular means of communication, relied on by millions of Americans on a daily basis for personal and commercial purposes. Its low cost and global reach make it extremely convenient and efficient, and offer unique opportunities for the development and growth of frictionless commerce.
Second, Congress conferred standing only on a narrow group of possible plaintiffs: the Federal Trade Commission, certain state and federal agencies, state attorneys general, and IAS providers adversely affected by violations of the CAN-SPAM
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 fee-for-service operations,9 we think it did intend to exclude plaintiffs who, despite certain identifying characteristics, did not provide the actual, bona fide service of a legitimate operation. See 150 Cong. Rec. E72-02 (“[W]e intend that Internet access service providers provide actual Internet access service to customers.“). We believe that Congress‘s clear intention to restrict private action remains of great importance and guides the proper standing analysis.
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
With these principles in mind, we apply a standing analysis that encapsulates Congress‘s will when it provided a limited private right of action.
2
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
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.
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 access the Internet through a conventional [ISP].” Facebook, Inc. v. ConnectU LLC, 489 F.Supp.2d 1087, 1094 (N.D. Cal. 2007); see also MySpace, Inc. v. The Globe.com, Inc., No. 06-3391, 2007 WL 1686966, at *3 (C.D. Cal. Feb. 27, 2007) (holding that MySpace had standing under the CAN-SPAM Act and interpreting the definition of “Internet access service” broadly to “include[] traditional [ISPs], any email provider, and even most website owners“). Gordon claims IAS-provider status, asserting that through the gordonworks.com domain and the leased server space he enables users to access Internet content and e-mail. On a superficial level, this proposition is hard to dispute. In the most general terms, a “service that enables users to access” online content or e-mail could encompass the proprietor of an Internet coffee shop or, as one district court suggested, “any person who allows another person to use their computer to access the Internet,” Ferguson, 2008 WL 3166307, at *5. Indeed, at some level, common utility services play a role in enabling users to access Internet content. Without question, this was not what Congress intended when it was defining the private right of action.
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 em-
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‘” e-mail addresses to mailing lists and accumulating spam through a variety of means for the purpose of facilitating litigation. 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.
a
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 the issue have similarly concluded that the type of harm envisioned by Congress did not encompass the ordinary inconveniences experienced by consumers and end users. See Active Response, 2008 WL 2952809, at *5. We have considered the statutory text and the legislative record, and we agree.
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
We do not purport to enumerate each and every harm that might satisfy the CAN-SPAM Act‘s standing provision. Nor do we suggest that the list is finite. At minimum, however, the harm must be both real and of the type experienced by ISPs. While the harm need not be signifi-
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.
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
b
In opposition to Virtumundo‘s summary judgment motion, Gordon argued that he had been adversely affected by spam because he and his “clients” had been “forced to wade through thousands of e-mails sent by” Virtumundo that “clogged” his service. Applying the proper interpretation of the CAN-SPAM Act‘s standing provision, we conclude that Gordon also fails the “adversely affected by” component. It is readily apparent that Gordon, an individual who seeks out spam for the very purpose of filing lawsuits, is not the type of private plaintiff that Congress had in mind when it fashioned
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’ e-mail 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 equip-
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 snagging as many e-mail marketing messages as possible. The record reveals that gordonworks.com was one such trap. He is not alone in his litigation enterprise. His “clients” also use their personalized domains to gather commercial e-mails, which they then send to Gordon in enormous unsorted batches of 10,000 to 50,000 messages to fuel his various anti-spam lawsuits.14 In exchange, Gordon‘s “clients” share in settlement proceeds. Gordon apportions the bounty according to each individual‘s contribution to the particular lawsuit—i.e., the number of e-mails provided to Gordon for use against a specific defendant.
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).
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.
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
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
(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 electronic mail address that the sender knows, or has reason to know, is held by a Washington resident 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.
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 computer service” to bring a private action. Id.
Of Gordon‘s various CEMA claims on appeal, only his claim relating to allegedly deficient headers requires detailed discussion. Gordon has no viable CEMA claim based on the body of the e-mail messages at issue. Unlike the CAN-SPAM Act, CEMA “does not regulate the body of the e-mail.” State v. Heckel, 122 Wash.App. 60, 93 P.3d 189, 194 (2004), review denied, 153 Wash.2d 1021, 108 P.3d 1229 (2005) (“Heckel II“). Similarly, the state statute does not purport to regulate “opt-out” mechanisms. Therefore, Gordon‘s CEMA claims, by nature of the state statute, are limited to the information contained in the e-mail 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.
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.
Therefore, the sole remaining CEMA claim that we must address relates to the headers of Virtumundo‘s e-mails. Gordon argues that the header information misrepresents or obscures the identity of the sender, and therefore violates CEMA, see
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 ar-
In Benson v. Oregon Processing Service, Inc., 136 Wash.App. 587, 150 P.3d 154 (2007), review denied, 162 Wash.2d 1004, 175 P.3d 1092 (2007), the state appellate court interpreted the previously undefined terms “misrepresent” and “obscure” according to their ordinary dictionary meaning—i.e., “misrepresent” to mean “representing incorrectly: to give a false, imperfect or misleading representation,” and “obscure” to mean “to conceal or hide from view as by or as if covering wholly or in part: make difficult to discern.” Id. at 156 (quoting Webster‘s Third New Int‘l Dictionary 1445 & 1557 (2003)). These broad definitions extend CEMA‘s prohibitive reach and purport to regulate a vast array of non-deceptive acts and practices. As subsequent courts reviewing CEMA have recognized, without further clarification, “a sender of commercial email could be potentially held liable under [CEMA] for unintentional clerical errors,” Ferguson, 2008 WL 3166307, at *8, imperfect representations, or immaterial misstatements.
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
2
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.” Ferguson, 2008 WL 3166307, at *7. In-
The concept of preemption derives from the Supremacy Clause of the
(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 scope of an express preemption clause, as is the case here, we must “identify the domain expressly pre-empted” by its language. Medtronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996) (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992)).
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 pre-emption 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; 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 such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail
message or information attached thereto.
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 Act and Oklahoma law, see
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,”
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.
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, 553 U.S. 285, 294 (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
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
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.
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
Applying its proper reading, the CAN-SPAM Act‘s preemption clause applies here and undermines Gordon‘s remaining CEMA claim. Although he admits he was not in any way misled or deceived, Gordon argues that the headers in the e-mails at issue—specifically, the “from lines“—violate CEMA because they fail to clearly identify Virtumundo as the e-mails’ sender and therefore misrepresent or obscure the identity of the sender. See
There is of course nothing inherently deceptive in Virtumundo‘s use of fanciful domain names. See
Nothing contained in this claim rises to the level of “falsity or deception” within the meaning of the CAN-SPAM Act‘s preemption clause. Gordon offers no proof that any headers have been altered to impair a recipient‘s ability to identify, locate, or respond to the person who initiated the e-mail. Nor does he present evidence that Virtumundo‘s practice is aimed at misleading recipients as to the identity of the sender. Cf. Aitken v. Commc‘ns Workers of Am., 496 F.Supp.2d 653, 667 (E.D. Va. 2007) (holding that “it is inappropriate to conclude, as a matter of law, that the misleading header information is immaterial” where the defendant misappropriated identities of managers to send “pro-union” e-mails to employees). As stated by our district court, Gordon‘s claim is “for, at best, ‘incomplete’ or less than comprehensive information” regarding the sender. Gordon, 2007 WL 1459395, at *12. Such technical allegations regarding the header information find no basis in traditional tort theories and therefore fall beyond the ambit of the exception language in the CAN-SPAM Act‘s express preemption clause.
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.“).
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, such state law claims falter under the weight of federal preemption. Summary judgment was properly entered on Gordon‘s CEMA claims.23
Gordon also appeals summary judgment of his claim that Virtumundo violated the Washington CPA, which generally prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”
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.
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., 140 Wash.App. 726, 167 P.3d 1162, 1166 (2007) (em-
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., 162 Wash.2d 59, 170 P.3d 10, 22 (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, 23 S.Ct. 120, 47 L.Ed. 194 (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, 74 S.Ct. 83, 98 L.Ed. 39 (1953) (noting that the plaintiff relinquishes his right to object to venue by bringing his lawsuit in a particular district). Finally, we decline to entertain Gordon‘s poorly articulated argument that the CAN-SPAM Act is unconstitutional under the Fourth and Fourteenth Amendments. See Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996). This constitutional challenge was neither raised before the district court, nor pressed in the reply brief or at oral argument. We reject these and any additional arguments possibly buried in Gordon‘s briefing not expressly addressed herein. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (repeating the now familiar maxim: “[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
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 expanded 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“).
In both contract and tort claims for damages, the common law always required a showing of damages proximately caused by the wrong as an element of the claim. See Hadley v. Baxendale, 9 Exch. 341 (1854) (holding that contract damages must either “aris[e] naturally” or “reasonably be supposed to have been ... the probable result of the breach of [the contract]“); Dan B. Dobbs, The Law of Torts § 377 (2001) (“In personal injury cases, the normal remedy is compensatory damages ... for all losses that have proximately resulted from the tort and all losses that will so result in the future.“). The branch of the common law known in England as chancery jurisdiction, which also developed in the colonies and in the early United States, was concerned with providing an equitable remedy to injured persons when common law damage remedies were inadequate. See Joseph Story, Chancery Jurisdiction: An Article Written for the North American Review, in 1820, on the Reports of Mr. Johnson, The Miscellaneous Writings of Joseph Story 165 (William W. Story ed., 2000) (1852) (stating that courts of equity are necessary because “[t]here are many cases in which the parties are without remedy at law, or in which the remedy is wholly inadequate to the attainment of justice“).
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
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 violations but expressly limited it to certain individuals and entities. Given this limited private right of action, statutory standing should be denied to plaintiffs such as Gordon who purposely structure themselves to look like one of the limited entities eligible to sue but do so for the primary purpose of collecting damages and settlements from litigation. Such individuals trying to game the system do not fall into the limited class to which Congress made available a private remedy, and ordinarily they should be denied statutory standing. That the legislative history specifies bona fide IAS providers strengthens our conclusion that Gordon‘s suit should be dismissed, but the legislative history is not necessary to reach this conclusion in light of the common-law antecedents that do not favor manufactured claims.
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, 102 S.Ct. 1114, 71 L.Ed.2d 214 (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.
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.