The federal CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography And Marketing Act) establishes penalties for companies which send emails with false and misleading information on subject lines and headers.  CAN-SPAM expressly preempts state laws except those that prohibit false and deceptive information.  In the absence of an authoritative rule on the issue, a California state trial court recently agreed with similar district court rulings that California’s state anti-spam statute (Business & Professions Code Section 17529.5) is preempted by the federal CAN-SPAM Act, except to the extent that actual fraud is alleged.  Fraud in turn requires among other things, a showing that plaintiff lost money or was otherwise deprived of value in reliance on fraudulent information.  Thus, a successful plaintiff must be someone who has actually responded to mislabeled spam and lost something of value, not just a consumer crusader awash in unwanted spam.  (Hypertouch Inc. v. ValueClick, Los Angeles County Superior Court No. LC081000, Summary Judgment Ruling, May 4, 2009).  Meanwhile, the federal Ninth Circuit Court of Appeal has certified a similar question to the California Supreme Court, for clarification on CAN-SPAM preemption of California state law (Kleffman v. Vonage Holdings Corp., 9th Cir. No. 07-56171/56292, Certificate Order December 19, 2008).

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