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The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES S. GORDON, Jr., a married

individual, d/b/a ‘GORDONWORKS.COM’;

OMNI INNOVATIONS, LLC., a

Washington limited liability company,

Plaintiffs,

v.

VIRTUMUNDO, INC, a Delaware

corporation d/b/a

ADNOWLEDGEMAIL.COM;

ADKNOWLEDGE, INC., a Delaware

corporation, d/b/a

ADKNOWLEDGEMAIL.COM; SCOTT

LYNN, an individual; and JOHN DOES,

1-X,

Defendants.

NO. CV06-0204JCC

DEFENDANTS’ OPPOSITION TO

PLAINTIFFS’ MOTION FOR

PARTIAL SUMMARY

JUDGMENT

NOTE ON MOTION CALENDAR: 

January 12, 2007

Case 2:06-cv-00204-JCC Document 82 Filed 01/08/2007 Page 1 of 24

Gordon v. Virtumundo Inc et al Doc. 82

Dockets.Justia.com
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DEFS.’ OPP’N TO MOT. FOR

PARTIAL SUMM. J.

CASE NO. CV06-0204C - i

TABLE OF CONTENTS

I. INTRODUCTION .............................................. 1

II. FACTS ....................................................... 2

A. Virtumundo Emails ......................................... 2

B. Relevant Procedural and Discovery History ....................... 4

III. ARGUMENT .................................................. 5

A. Summary judgment should be denied because there are disputed

issues of material fact. ....................................... 5

B. Plaintiffs lack standing to assert claims under CAN-SPAM because

they are not a bona fide Internet access service provider adversely

affected. .................................................. 7

1. Plaintiffs are not a bona fide Internet access service provider .... 7

2. Plaintiffs were not adversely affected by a violation of the

statute .............................................. 9

C. Defendants qualify for the safe harbor because the alleged “from”

lines identify the sender of the message. ........................ 11

D. CAN-SPAM does not require the “from name” to consist of a

sender’s “actual” name. ..................................... 14

1. Congress clearly did not intend to require a “from name” ...... 14

2. Plaintiffs’ position is not based on a permissible construction

of the statute ........................................ 15

E. Plaintiffs’ state law claims do not establish any violation of CEMA,

and CAN-SPAM preempts Plaintiffs’ CEMA argument. ............ 17

F. Plaintiffs fail to establish that Defendants are the initiators of the

emails .................................................. 19

G. Plaintiffs’ purported evidence is inadmissible and should be stricken . . 20

IV. CONCLUSION ................................................ 21

Case 2:06-cv-00204-JCC Document 82 Filed 01/08/2007 Page 2 of 24
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1

 Plaintiffs do not specify against which defendant(s) they move. However, the socalled “Relevant Facts” section addresses only defendant Virtumundo’s alleged emails,

and does not mention defendant Adknowledge or Mr. Lynn. See Motion 2:2 - 3:9.

DEFS.’ OPP’N TO MOT. FOR

PARTIAL SUMM. J.

CASE NO. CV06-0204C - 1

I. INTRODUCTION

This motion arises out of Plaintiffs’ Motion for Relief from Deadline (Docket.

No. 42, the “Relief Motion”) filed in response to Defendants’ (still-pending) Motion for

an Undertaking Pursuant to 15 U.S.C. § 7706(g)(4) (Dkt. No. 38, the “Motion for an

Undertaking”). In the Relief Motion, Plaintiffs asserted that if excused from responding

to the Motion for an Undertaking they planned to file a motion that would “result in the

resolution of the ultimate issues in this case” (Relief Motion 2:11-12). Plaintiffs therefore

requested “the opportunity to establish that as a matter of law . . . emails sent by, or on

behalf of Defendants, do in fact violate the [CAN-SPAM] Act.” (Relief Motion 3:11-12). 

This Court gave Plaintiffs the opportunity they requested (Dkt. No. 46). Far from

filing a motion that would result in the resolution of this case, however, Plaintiffs filed

the instant motion against Virtumundo only1 which they characterize as a “Motion for

Partial Summary Judgment” (Dkt. No. 53, the “Motion”). The Motion addresses only a

single non-dispositive issue, namely “[d]oes a commercial electronic mail message that

does not accurately identify the sender of the email in the ‘From’ field of the header

comply with the CAN-SPAM ACT and/or CEMA” (Motion 3:19). Plaintiffs’ novel

theory that CAN-SPAM requires the “from name” field (in the “from” line) to contain the

“actual name” of the sender is contrary to the plain language of CAN-SPAM, unworkable

in practice, and without legal precedent. In fact, Plaintiff concedes uncertainty whether

this sender would be the person who sent the email or the person who hired the

Defendant to send it (Motion 3:15).

Moreover, even if Plaintiffs were correct that CAN-SPAM contained such a

requirement, Defendants’ emails would not violate it. Every email Defendants send

contains their domain name and a working email address in the “from line”. The domain

names Defendants use identify Defendants as the source of the message. In addition,

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2

 Plaintiffs fail even to identify the elements of their claim, much less point to

specific undisputed evidence in support of those elements. Plaintiffs’ focus is entirely on

the supposed “actual name of the sender” issue, and their motion is more accurately

characterized as a motion for summary adjudication of that issue than as one for partial

summary judgment.

DEFS.’ OPP’N TO MOT. FOR

PARTIAL SUMM. J.

CASE NO. CV06-0204C - 2

Defendants use the “from name” field to identify either (1) the line of business to which

the email pertains, or (2) the actual name of the entity on whose behalf the email is

initiated. Defendants’ “from” line usages are expressly contemplated by CAN-SPAM

and provide more (and more useful) information to recipients than does the interpretation

Plaintiffs urge.

Plaintiffs’ position, if adopted, would result in more consumer confusion, not less,

and would run contrary to the policies underlying CAN-SPAM. It would also create

regulatory confusion in situations where a single email message contained promotions or

solicitations from multiple and independent advertisers (which is the case with Defendant

Adknowledge). Plaintiffs’ argument that Defendants’ “from name” usage is materially

false or misleading is not only factually incorrect but legally frivolous. Plaintiffs’

repeated rhetorical exhortations that various matters are “indisputable” notwithstanding,

Plaintiffs cannot establish they are entitled to summary judgment on any of their claims2

and their Motion should be denied.

II. FACTS

A. Virtumundo Emails

Exhibit “A” to the Declaration of James Gordon in Support of Plaintiffs’ Motion

(Dkt. No. 64) consists of printouts of the emails upon which Plaintiffs’ claims against

defendant Virtumundo are based. (Motion 2:19-3:2). Although Virtumundo has not

performed an exhaustive analysis of these emails, the vast majority of them include a

return email address at one of the following domain names: <vm-mail.com>,

<vmadmin.com>, and <virtumundo.com>. Declaration of Michael Shopmaker in Support

of Opposition to Plaintiffs’ Motion for Partial Summary Judgment (“Shopmaker Decl.”)

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DEFS.’ OPP’N TO MOT. FOR

PARTIAL SUMM. J.

CASE NO. CV06-0204C - 3

¶ 2.

Virtumundo is the registrant (i.e., owner) of each of these domain names, and

Virtumundo is identified in the WHOIS database as such. Shopmaker Decl. ¶ 3. The

WHOIS database is a publically available source to identify the registrant of, and the

registrant’s contact information for, any .com domain name. Id. ¶ 4. The registrant

provides its own contact information for the WHOIS database. Id. A WHOIS query on

any of the domain names at issue in this case will return information including

Virtumundo’s name, correct physical address, and telephone number. Id. ¶ 5.

Email senders who wish to obscure their identity may provide inaccurate contact

information when registering domain names, or use “domain proxy” services to prevent

their contact information from appearing in the WHOIS database. Shopmaker Decl. ¶ 6.

Virtumundo does not engage in such practices, and indeed endeavors to make itself easy

to identify and locate from the information in the “from” lines of the emails it sends. Id.

¶ 7. Every “from” line from Virtumundo contains (i) a working “from” email address that

is attached to (ii) an accurate and truthful domain name that is registered to Virtumundo

listed in WHOIS. Id. ¶ 8. In addition, the body of each email Virtumundo sends always

includes accurate contact information for Virtumundo and working “unsubscribe” links. 

Id.

In the course of its business, Virtumundo creates and transmits emails as part of

promotional campaigns for its customers. Shopmaker Decl. ¶ 9. All of Virtumundo’s

email solicitations contain a working “from” email address that routes to Virtumundo. 

Virtumundo typically also uses the “from name” field to identify the customer. Id. In

other circumstances, Virtumundo uses the “from name” field to identify the line of

business to which the email pertains. Id. ¶ 10. Thus, an email advertising police training

might have the “from name” of “Criminal Justice” followed by the email address at

Virtumundo’s domain, “CriminalJustice@vm-mail.com”. Id. This performs three

functions. Id. ¶ 11. First, it informs the recipient that the message is a commercial email,

rather than an email from a particular individual. Id. Second, it informs the recipient of

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3

 Plaintiffs made this surprising admission in “Plaintiff Omni’s Answers and

Responses to Defendant Virtumundo’s First Requests for Admission to Omni” in

response to Request for Admission No. 7.

DEFS.’ OPP’N TO MOT. FOR

PARTIAL SUMM. J.

CASE NO. CV06-0204C - 4

the general subject of the message. Id. Third, it accurately identifies Virtumundo’s

business line that initiated the message. Id. It is not “advertising copy” as Plaintiffs

contend. Id. .

Virtumundo identifies itself in the “from” line by using its domain name, and

expressly in the content of the emails it sends, for informational rather than “branding”

purposes. Shopmaker Decl. ¶ 12. Virtumundo does not advertise its own services to

consumers, and most consumers would not recognize the Virtumundo name. Id. ¶ 13

Similarly, Virtumundo transmits email to persons who generally do not have any personal

relationship with any Virtumundo employee. As such, including in the “from name” field

the name of Virtumundo or its employee who initiates the transmission would not provide

meaningful information. Id. ¶ 14. To the contrary, to do so would obscure the fact that

the email contains a commercial solicitation. A “from name” of “William A. Worker” (a

hypothetical Virtumundo employee, for example) may lead a consumer to believe the

message is from an individual and is personal in nature, rather than from a company. Id.

The “from name” of CriminalJustice, on the other hand, clearly implies a commercial

solicitation. “Virtumundo” or “William A. Worker” would be ambiguous. Id.

Plaintiffs admitted that they “were not ‘adversely affected’ (as that term is used in

15 USC 7706(g)(1)) by the [emails they allege Defendants sent].”3 See Declaration of

Derek A. Newman in Support of Opposition to Plaintiffs’ Motion for Partial Summary

Judgment (“Newman Decl.”) ¶ 6, Ex. C at 2:3 (No. 7). Rather, “Omni is only seeking

statutory damages in this action.” Id.

B. Relevant Procedural and Discovery History

Plaintiffs are in the business of filing lawsuits under CAN-SPAM and CEMA. 

(Newman Decl. ¶ 2). Plaintiffs commenced this action on February 9, 2006, alleging,

inter alia, receipt of 6000 unsolicited emails. (Dkt. No. 1). Plaintiff filed a first amended

Case 2:06-cv-00204-JCC Document 82 Filed 01/08/2007 Page 6 of 24
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DEFS.’ OPP’N TO MOT. FOR

PARTIAL SUMM. J.

CASE NO. CV06-0204C - 5

complaint on April 4, 2006 (Dkt. No. 15).

On November 2, 2006, Defendants filed a Motion for an Undertaking Pursuant to

15 U.S.C. § 7706(g)(4), with a noting date of November 17, 2006 (Dkt. No. 38). On

November 3, 2006, Plaintiffs filed a Motion for Relief, seeking to be excused from

responding to the Motion for an Undertaking on the ground that they planned to file a

summary judgment motion that would “result in the resolution of the ultimate issues in

this case” (Relief Motion 2:11-12)) (Dkt. No. 42). The Court granted Plaintiffs’ Motion

for Relief. (Dkt. No. 46). On December 18, 2006, Plaintiffs filed the Motion now before

the Court. (Dkt. No. 53).

Pursuant to FED. R. CIV. P. 16(f), the last court day to complete discovery

and file and serve motions to compel discovery was December 15, 2006.

By stipulation of the parties, the Court extended the deadline for the parties to depose fact

witnesses to January 15, 2007, and extended the deadline for filing general dispositive

motions to January 22, 2007 (Dkt. No. 50).

The depositions of plaintiffs James S. Gordon and Omni Innovations, LLC are

scheduled for January 10 and 11, 2006. (Newman Decl., ¶ 3). Counsel for Defendants

asked Plaintiffs’ counsel to stipulate to move the Motion back a week, to permit

Plaintiffs’ depositions to be taken before Defendants’ Opposition to the Motion was due. 

Plaintiffs refused. (Newman Decl., ¶ 4). Accordingly, Defendants’ Opposition is being

filed before Plaintiffs’ depositions have been taken. Id.

III. ARGUMENT

A. Summary judgment should be denied because there are disputed issues of

material fact.

Summary judgment is appropriate only upon a showing that there is “no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d

265, 106 S. Ct. 2548 (1986) (“One of the principal purposes of the summary judgment

rule is to isolate and dispose of factually unsupported claims or defenses . . . .”). A fact is

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DEFS.’ OPP’N TO MOT. FOR

PARTIAL SUMM. J.

CASE NO. CV06-0204C - 6

“material” if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A dispute

about a material fact is “genuine” if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id.

The moving party bears the burden of informing the court of the basis for its

motion, together with evidence demonstrating the absence of any genuine issue of

material fact. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. Once the moving party

has met its burden, the party opposing the motion may not rest upon the mere allegations

or denials of his pleadings but must set forth specific facts showing that there is a genuine

issue for trial. Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248. Although the

parties may submit evidence in an inadmissible form--namely, depositions, admissions,

interrogatory answers, and affidavits--only evidence which might be admissible at trial

may be considered by a trial court in ruling on a motion for summary judgment. FED. R.

CIV. P. 56(c) ; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

1550-51 (9th Cir. 1990); Beyene v. Coleman Security Services, Inc., 854 F.2d 1179, 1181

(9th Cir. 1988); see United States v. Dibble, 429 F.2d 598, 603 (9th Cir.1970) (court may

disregard inadmissible evidence sua sponte).

Plaintiffs Motion falls far short of meeting the initial burden of demonstrating the

absence of any genuine issue of material fact. Instead, Plaintiffs repeatedly

mischaracterize Defendants’ position as consistent with their own (see, e.g., Motion 2:2

(“[t]he Material facts of this matter are uncontested”); id. at 5:8 (“there are no material

facts in dispute”); id at 6:15-16 (“the fact that the Defendant Virtumundo here failed to

identify itself on the ‘From’ line, but instead falsely displayed its advertising copy, is

indisputable”). In truth, Defendants dispute most of Plaintiffs’ factual contentions. 

Plaintiffs’ rhetoric cannot remedy the paucity of their evidence, the vast majority of

which is inadmissible (and to which Defendants object and move to strike, as described

below). Finally, Plaintiffs and Defendants have radically different views regarding the

inferences that can properly be drawn from those facts that are uncontested, again

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DEFS.’ OPP’N TO MOT. FOR

PARTIAL SUMM. J.

CASE NO. CV06-0204C - 7

suggesting that summary judgment is inappropriate in the instant action.

B. Plaintiffs lack standing to assert claims under CAN-SPAM because they are

not a bona fide Internet access service provider adversely affected.

CAN-SPAM (15 U.S.C. §§ 7701, et seq., the “Act”) provides that only certain

federal agencies, state attorneys general, and “a provider of Internet access service

adversely affected by a violation” have standing to bring a claim under the statute. 15

U.S.C. § 7706(g)(1). CAN-SPAM does not provide a private right of action to

consumers. 15 U.S.C. § 7706(a). Consequently, the first material issue in dispute is

whether Plaintiffs (i) are an Internet access service provider and (ii) have been adversely

affected by a violation of the statute.

1. Plaintiffs are not a bona fide Internet access service provider.

As described in Defendants’ pending Motion for an Undertaking, Plaintiffs have

no standing unless they prove they are “bona fide Internet service provider(s)” providing

“actual Internet access service to customers.” 150 CONG. REC. E72 (attached as Exhibit

M to Townsend Decl. in support of Motion for an Undertaking (Dkt. No. 41)). “The term

‘Internet access service’ has the meaning given that term in section 231(e)(4) of the

Communications Act of 1934 (47 U.S.C. 231(e)(4))”. 15 U.S.C. § 7702 (11).

The term “Internet accessservice” means a service that enables usersto access

content, information, electronic mail, or other services offered over the

Internet, and may also include access to proprietary content, information, and

otherservices as part of a package ofservices offered to consumers. Such term

does not include telecommunications services.

47 U.S.C. § 231(e)(4).

Plaintiffs contend they are an Internet access service provider because they operate

a web site and have provided email accounts to nine people since May 2005. (Omni

Response to Interrogatory No. 22, Attached as Exhibit U to Townsend Decl.) These

accounts were provided for free “subject to data collection” by Plaintiff Gordon. Id.

Merely providing email accounts to a handful of friends and family at no charge does not

render Plaintiffs a bona fide Internet access service provider. If it did, every one of

AOL’s more than 20 million subscribers (who can assign screen names and associated

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4

 This implication is supported by the fact that in presenting the bill eventually

codified as CAN-SPAM to the House of Representatives, Hon. John D. Dingell stressed

that “we intend that Internet access service providers provide actual Internet access

service to customers. 150 CONG. REC. E72, supra (Exhibit “M” to Townsend Decl.)

(emphasis added). “Customers” clearly suggests a commercial transaction. See, e.g.,

Dictionary.com Unabridged (v 1.1). Random House, Inc.

http://dictionary.reference.com/browse/customer (accessed: January 03, 2007)

(“Customer: 1. a person who purchases goods or services from another; buyer; patron.”)

DEFS.’ OPP’N TO MOT. FOR

PARTIAL SUMM. J.

CASE NO. CV06-0204C - 8

email accounts to household members) would qualify. Such a construction is plainly

absurd.

Plaintiffs do not provide “Internet access service” for the purposes of the Act

because “consumers” in the context of the Act implies a commercial relationship.4 CANSPAM’s standing requirement is intended to provide a private right of action for

legitimate Internet access service businesses, such as AOL itself. The statute does not

confer that right on an Internet access service customer, notwithstanding that such

customer may in turn provide free email accounts to its friends or family. See REPORT

OF THE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION ON

S. 877, S. REP. No. 102, 108th Cong., 1st Sess. 2-3 (2003) (the “Committee Report”)

(Exhibit N to Townsend Decl. in Support of Defendants’ Motion for an Undertaking)

(Dkt. No. 41-14) (referencing global Internet access providers such as Microsoft,

Earthlink, AOL, etc.). Since Plaintiffs do not have customers, they are not a “bona fide

Internet service provider” as contemplated by the Act, and do not satisfy CAN -SPAM’s

standing requirement.

Further support for Defendants’ contention that Plaintiffs are not a “bona fide

Internet service provider” comes in the Gordon Declaration. There, the plaintiff

acknowledges at some unspecified time since 2005 he “took over the administration of

those email accounts and began directly receiving the email sent thereto.” (Gordon Decl.

¶ 9). Gordon thus admits that even the non-paying “customers” upon whom he founded

his claim to be a provider of Internet access service no longer receive email sent to their

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CASE NO. CV06-0204C - 9

(former) accounts. Plaintiffs have not met their burden of establishing that they are

providers of Internet access service, and the Motion on the CAN-SPAM claims should be

denied without further consideration.

2. Plaintiffs were not adversely affected by a violation of the statute.

The Committee Report submitted in connection with S. 877 (the bill ultimately

codified as CAN-SPAM) described in some detail the adverse economic impact of

unsolicited commercial email on Internet service providers: 

Massive volumes of spam can clog a computer network, slowing Internet

service for those who share that network. ISPs must respond to rising volumes

of spam by investing in new equipment to increase capacity and customer

service personnel to deal with increased subscriber complaints. ISPs also face

high costsmaintaining e-mailfiltering systems and other anti-spamtechnology

on their networks to reduce the deluge of spam. Increasingly, ISPs are also

undertaking extensive investigative and legal efforts to track down and

prosecute those who send the most spam, in some cases spending over a

million dollars to find and sue a single, heavy-volume spammer.

S. Rep 108-102, at 6. The experience of Earthlink, as described in Earthlink, Inc.

v. Carmack, 2003 U.S. Dist. LEXIS 9963, 12-13 (D. Ga. 2003), is illustrative:

In addition to the administrative and out-of-pocket expenses described above,

EarthLink suffers other types of more serious and substantial economic loss

as the result of spam sent into or out of EarthLink’s network. These include

the loss of business reputation and the loss of existing and prospective

customersthat necessarily occurs when an ISP's users are repeatedly spammed

and/or when its resources are used to send spam to other users. 

Earthlink, Inc. v. Carmack, 2003 U.S. Dist. LEXIS 9963, 12-13 (D. Ga. 2003) (Internal

quotations and citations omitted).

Unlike Earthlink, Plaintiffs did not suffer serious and substantial economic loss,

and indeed suffered no economic loss whatsoever. Since Plaintiffs do not operate a

business, they could not have suffered loss of business reputation, nor the loss of

prospective customers. Likewise, since there were only nine users of Plaintiffs’ email

server at most, Plaintiffs’ resources could not have been used to send spam to other users.

The only evidence offered by Plaintiffs that they experienced any adverse impact

as a result of Defendants’ conduct is a vague, unsupported allegation in the Gordon

Declaration that “the volume of spam sent by Defendants . . . has cost me untold hours of

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CASE NO. CV06-0204C - 10

manpower, and substantial resources.” Gordon Decl. ¶ 26. First, this does not suffice to

establish that there is no genuine issue as to any material fact. Second, the time and

resources expended by Gordon appear to be exclusively directed toward litigation

preparation (such as sorting emails by sender and deleting duplicates), and not related to

combating or managing spam per se. See, e.g., Gordon Declaration in Reponse and

Opposition to Defendants’ Motion to Compel Segregation of Emails, ¶ 3 (“The job of

collecting, sorting, and compiling records on this and other defendants is a very timeconsuming process”). Mr. Gordon’s time, it should be stressed, is invested in collecting,

reviewing, sorting, and compiling records on emails that have already been identified as

spam. See id. (“my clients send me emails that are unsorted in lots of 10-50,000 at one

time”).

Nowhere, in contrast, do Plaintiffs allege that they had to increase server capacity,

hire customer service representatives, or spend money to implement spam filters. 

Plaintiffs do not claim, and certainly do not present any evidence, that they lost money,

experienced system downtime, or that any business was otherwise adversely affected as a

result of receiving Defendants’ alleged email messages. The time invested by Plaintiffs

in intentionally gathering alleged spam emails from their clients in preparation for

litigation is obviously not the sort of adverse impact that Congress had in mind when

drafting CAN-SPAM.

If Plaintiffs had left the messages in the junk mail folders, then they would not

have seen the messages and likely would not have known the messages were sent. 

Plaintiffs were not adversely affected by the violations they allege, and therefore do not

having standing the bring the claims alleged herein. Indeed, Plaintiffs admit in their

responses to requests for admission that they were not adversely affected by Defendants’

alleged emails. See Newman Decl. ¶ 6, Ex. C at 2:7-8. The Motion on the CAN-SPAM

claims should be denied on that basis alone.

Moreover, even if Plaintiffs experienced some adverse effect, (which they did not,

and failed to offer any evidence to demonstrate otherwise), Plaintiffs themselves, rather

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than Defendants, were the proximate cause of those effects. Plaintiffs admit they signed

up to receive the emails upon which they base their claims. See Gordon Decl. ¶ 11; 

Declaration of Michael Shopmaker in Support of Defendants’ Motion for an Undertaking

¶ ¶ 20-22 (users of the email addresses at james@gordonworks.com,

faye@gordonworks.com, jamila@gordonworks.com, jonathan@gordonworks.com,

jay@gordonworks.com, emily@gordonworks.com, msm@gordonworks.com, and

jim@gordonworks.com all affirmatively consented to receive emails from Virtumundo or

one of its registration partners). Plaintiffs do not allege that they ever sought to

unsubscribe from Virtumundo “using a mechanism provided pursuant to [the statute] not

to receive some or any commercial electronic mail messages from” Defendants. See 15

U.S.C. § 7704(a)(4)(A). Given that Plaintiffs opted-in to Defendants’ mailings, and

never opted-out through the means provided, they (and not Defendants) are liable for any

adverse effects they may have suffered.

C. Defendants qualify for the safe harbor because the alleged “from” lines

identify the sender of the message.

The “from name” entries that Plaintiffs allege Defendants used are neither false

nor misleading, but accurate and significantly more useful to the recipient than the names

Plaintiffs suggest. Defendants are alleged to have used domain names that are registered

to them, together with text that identifies the subject of the email. With this information,

recipients can identify the name, address, and phone number of the sender, and from the

“from” line alone know the email is commercial in nature.

Plaintiffs propose a per se rule that Congress did not provide where the full legal

name of the individual who sends an email would have to be included in the “from” line. 

Plaintiffs’ argument fails on several levels. 15 U.S.C. § 7704(A)1(b) provides that “a

‘from’ line (the line identifying or purporting to identify a person initiating the message)

that accurately identifies any person who initiated the message shall not be considered

materially false or materially misleading”. This “safe harbor” does not require that such

identification be in any particular field in the “from” line, only that the “from” line as a

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whole accurately identify the sender. 

To determine whether Defendants fall within this safe harbor, the court must

identify what it means for a person to be “accurately identified” in a “from line.” An

email address must be unique in order to function, while the names of entities and natural

persons can be shared by literally millions of people around the globe. Consequently, an

email address is far more useful than a person’s name, provided the email address is at a

domain name registered to the person initiating transmission of the email.

Congress passed CAN-SPAM to combat commercial marketers that hide their

identities. By using a domain name registered to it, a sender allows the recipient to

obtain the sender’s address and phone number from the publically available WHOIS

database. A “from” line that contains the sender’s actual email address “accurately

identifies” the person who initiated the message for the purpose of 15 U.S.C. §

7704(A)1(b).

In this case, Virtumundo is alleged to have sent messages from its own domain

names, which are noted in each “from” line and which route to them. Defendants use

email addresses in the from line which routes to them. The domain names associated

with the email addresses are listed in the WHOIS database. The WHOIS database returns

accurate contact information for Defendants in response to each query of Defendants’

domain names. Defendants accurately identify themselves in the “from” lines of their

emails. As a result, those “from” lines cannot possibly be considered materially false or

materially misleading. Defendants therefore qualify for the safe harbor which provides “a

‘from’ line . . . that accurately identifies any person who initiated the message shall not

be considered materially false or materially misleading”.

A contrary conclusion would elevate form over substance and run counter to the

concerns underlying CAN-SPAM. For example, “John Smith” would be acceptable

under Plaintiffs’ construction, even if his email address were jsmith@yahoo.com (which

would require the recipient to subpoena Yahoo to learn John Smith’s address and phone

number). Conversely, the safe harbor would not apply to a sender who uses its accurate

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domain name in its email address (e.g., CriminalJustice@vmmail.com), is listed in the

WHOIS database, and clearly identifies itself in the message. Pursuant to the policy

underlying the CAN-SPAM requirement, namely disclosure of the sender, Defendant

qualifies for the safe harbor.

The plain language of the statute compels this interpretation. It is also consistent

with Congressional intent in the definition of the term “materially”:

the term “materially”, when used with respect to false or misleading header

information, includes the alteration or concealment of header information in

a manner that would impair the ability of an Internet access service processing

the message . . . or a law enforcement agency to identify, locate, or respond to

a person who initiated the electronic mail message or to investigate the alleged

violation, or the ability of a recipient of the message to respond to a person

who initiated the electronic message.

15 U.S.C. 7704(a)(6). The “from name” fields in Defendants’ emails in no way impair the

ability of a recipient (or anyone else) to locate them. In most cases with commercial

email, the “from name” field does not provide useful information because the sender is

unknown to the recipient. For example, a “from name” field of “William A. Worker”

would provide no real information to a consumer. On the other hand, the “from name” of

“Criminal Justice” (accompanied by Virtumundo’s domain name) in connection with a

message advertising jobs in criminal justice puts the recipient on notice of the nature of

the message.

Further, CAN-SPAM’s prohibition against materially false and materially

misleading header information is not specific as to information contained in the “from”

line, but applies to header information as a whole.

The term ‘header information’ means the source, destination, and routing

information attached to an electronic mail message, including the originating

domain name and originating electronic mail address, and any other

information that appears in the line identifying, or purporting to identify, a

person initiating the message.

15 U.S.C. § 7702 (8). Plaintiffs’ contention that the “from name” field must be analyzed

independently, outside the context of the entire email header, is inconsistent with the Act. 

In fact, the term “from name” is not contained within the text of CAN-SPAM. The issue

the court must decide is whether the header information, as a whole, is materially false

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and misleading. Defendants’ header information, which informs a recipient of the

general subject of the email and permits Defendants to be easily located, is neither false

nor misleading.

D. CAN-SPAM does not require the “from name” to consist of a sender’s

“actual” name.

Plaintiffs place great emphasis on a rhetorical effort to establish that Congress

intended CAN-SPAM to require the use of a sender’s “actual” name in the “from name”

field. Even a cursory review of the statute reveals that Plaintiffs’ argument fails because

Congressional intent is clear. “One determines what Congress would have done by

examining what it did.” See Legal Services Corporation v. Velazquez, 531 U.S. 533, 560

(2001) (Scalia, J., dissenting).

CAN-SPAM contains no requirement that the actual name of a person be

contained in the “from name” portion of the from line, and no such requirement is found

in the legislative history of the Act. In truth, there is no requirement in CAN-SPAM that

the “from name” (as opposed to the “from line”) field contain any information at all; a

sender is free to simply leave it blank. Any descriptive information in the “from name”

field exceeds the CAN-SPAM requirement.

Interpreting a federal statute requires two steps. First, the court must determine

whether Congress has directly spoken to the precise question at issue. New Edge

Network, Inc. v. FCC, 461 F.3d 1105, 1111 (9th Cir. 2006). If the intent of Congress is

clear, the inquiry ends; the court “must give effect to the unambiguously expressed intent

of Congress.” Id. (citations omitted) Second, “if the statute is silent or ambiguous with

respect to the specific issue, the question for the court is whether the [plaintiff’s position]

is based on a permissible construction of the statute.” Id.

1. Congress clearly did not intend to require a “from name”.

Plaintiffs assert “the accurate identification of the actual sender of a commercial

electronic email message in the ‘header’ portion of that email is both required under, and

central to, Congress’s scheme to regulate commercial email.” (Motion at 5:20-23)

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(emphasis added). This is not, however, what CAN-SPAM provides. The relevant portion

of the Act, Section 7704, provides in pertinent part, 

It is unlawful for any person to initiate the transmission, to a protected

computer, of a commercial electronic mail message . . . that contains, or is

accompanied by, header information that is materially false or materially

misleading. For purposes of this paragraph . . . (B) a “from” line (the line

identifying or purporting to identify a person initiating the message) that

accurately identifies any person who initiated the message shall not be

considered materially false or materially misleading

15 U.S.C. § 7704 (a) (1). 

In the Act, Congress addressed the precise question at issue. It declined to require

the actual name of the sender in the “from name” field of the header. There is nothing

ambiguous in CAN-SPAM or its safe harbor for those who accurately identify themselves

in the “from” line. The safe harbor does not require a sender to accurately identify itself

in the “from name” field; it provides a safe harbor for those senders who accurately

identify themselves in the “from” line. The term “from name” never appears in CANSPAM. Given this unambiguous language, the intent of Congress is clear, and the inquiry

into interpretation ends. The construction that Plaintiffs urge contradicts the clear intent

of Congress.

2. Plaintiffs’ position is not based on a permissible construction of the

statute.

Plaintiffs conclude the “from name” field must contain the “actual name” of the

sender because of the Section 7704(a)(1)(B) safe harbor. This conclusion is a logical

error known as the “vacuous implication” or “denying the antecedent”. It takes the form

of an assertion that “if a, then b” compels the conclusion “if not a, then not b.” Plainly,

this is not the case.

Congress wrote express language into the Act that identifying a sender in the

“from” line means the “from” line is not misleading. This does not mean the converse is

true. Congress did not intend to provide that failing to identify oneself in the “from” line

is misleading, or it would have so provided. The existence of the safe harbor makes clear

that CAN-SPAM does not require a sender’s actual name in the “from” line. To conclude

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505 Fifth Ave. S., Ste. 610

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otherwise would render 15 U.S.C. § 7704(a)(1)(B) superfluous.

Also, the Act applies to one who “initiates the transmission” of emails within the

scope of the Act. “[M]ore than one person may be considered to have initiated a

message.” 15 U.S.C. § 7702(9). Since there may be more than one initiator, Plaintiffs’

contention leads to the conclusion that to comply a “from name” might have to be an

unwieldy list of all senders in the event more than one person initiated a message. This is

not a hypothetical issue. Plaintiffs’ theories lead to confusion, rather than clarity, as to

who precisely should be in Plaintiffs’ “from name”. Plaintiff itself identifies this issue

but offers no solution to it (Motion 3:15). The Federal Trade Commission (the “FTC”),

however, which has a primary enforcement role over CAN-SPAM, has proposed a

workable solution to this issue. See, 70 Fed. Reg. 25426, 25452 (May 12, 2005)

(Proposed Rule) (Proposed § 316.2(m), addressing when more than one person’s products

or services are advertised or promoted in a single electronic mail message). Plaintiffs’

proposed solutions are utterly unworkable from a practical standpoint, and inconsistent

with the rule the FTC proposes.

Moreover, 15 U.S.C. § 7702 (16)(B) provides that senders and initiators may use

the name of a line of business or a division to identify themselves. In this case,

Defendants’ “from name” entries such as “criminal justice” are not “advertising copy,” as

Plaintiffs repeatedly contend, but rather represent Defendants’ business lines. See

Shopmaker Decl. ¶ 11.

Congress spoke expressly when it provided that a header may not be materially

false or misleading. The “from” line is but a small portion of the header information. 

Congress did not provide that the “from” line contain an accurate “from name”. Instead,

Congress wrote a safe harbor providing that an accurate “from” line would render the

header information compliant. By “denying the antecedent” and writing in a requirement

that Congress did not, Plaintiffs are improperly construing the statute, and their position

must fail. Further, Congress delegated to the FTC the role of developing further rules and

guidance for the regulated community. Congress deliberately denied private parties, such

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as the present plaintiffs, a right of action under CAN-SPAM. Consequently, the regulated

community is spared litigation costs of the type Plaintiffs presently impose upon these

Defendants.

E. Plaintiffs’ state law claims do not establish any violation of CEMA, and CANSPAM preempts Plaintiffs’ CEMA argument.

Plaintiffs assert that Defendants’ emails violated Washington’s Commercial

Electronic Mail Act, RCW 19.190 et seq. (“CEMA”). In particular they allege a violation

of RCW 19.190.020 which prohibits transmitting a commercial email message that

“misrepresents or obscures any information in identifying the point of origin” of the

message. Plaintiffs contend that Defendants’ failure to include their employees’ legal

names or their full corporate name in the “from name” field “misrepresents or obscures”

information in identifying the point of origin.

Plaintiffs’ argument must fail given the ease with which Defendants can be

located – not only by performing a simple WHOIS lookup regarding the domain names

from which the emails are sent, but by merely opening the emails themselves. 

Defendants’ names and addresses are clearly set forth in each email they send. To the

extent, if any, that CEMA purports to prohibit information in the “from name” field, it

prohibits immaterial misrepresentations and falsehoods and is preempted by CAN-SPAM.

Congress intended CAN-SPAM to create a single national standard for commercial

email, and to that end it preempts state laws, subject to a narrow exception:

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, orrule prohibitsfalsity or deception in any portion of a commercial

electronic mail message or information attached thereto.

15 U.S.C. 7707(b)(1). Further, the following congressional finding is part of

CAN-SPAM:

Many States have enacted legislation intended to regulate orreduce 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

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geographic location, it can be extremely difficult for law-abiding businesses

to know with which of these disparate statutes they are required to comply.

15 U.S.C. 7701(a)(11). 

In Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F. 3d 348 (4th Cir.

2006), the Fourth Circuit considered the CAN-SPAM preemption clause in relation to an

Oklahoma law that prohibits, among other things, sending a commercial email that

“misrepresents any information in identifying the point of origin or the transmission path

of the electronic mail message.” This is virtually identical to the CEMA provision upon

which Plaintiffs rely. The district court ruled that the Oklahoma statute created a cause of

action for immaterial errors, and was preempted. The Fourth Circuit affirmed, reasoning

“[r]ather than banning all commercial e-mails or imposing strict liability for insignificant

inaccuracies, Congress targeted only e-mails containing something more than an isolated

error.” Omega World Travel, Inc. v. Mummagraphics, Inc., supra, 469 F.3d at 348.

The court thus held that permitting claims under state law for immaterial errors

would subvert Congress’ intent to create a national standard:

In sum,Congress’ enactment governing commercial e-mailsreflects a calculus

that a national strict liability standard for errors would impede “unique

opportunitiesforthe development and growth offrictionless commerce,” while

more narrowly tailored causes of action could effectively respond to the

obstacles to “convenience and efficiency” that unsolicited messages present.

Id. Like the Oklahoma statute, CEMA is preempted to the extent it purports to impose

liability for minor errors that do not impede the ability of a recipient to locate the sender. 

Defendants’ alleged “from” lines are not false or misleading, but even if they were, the

errors would be immaterial given the ease with which Defendants can be located from the

email address or the content of the email in any given instance. Messages do not violate

the statute’s accuracy requirements when the messages provide numerous methods to

identify, locate, and respond to the senders. Omega World Travel, supra, 469 F. 3d 348.

Even if CEMA were not preempted by CAN-SPAM, Plaintiffs fail to meet their

burden as to their CEMA claims. Plaintiffs provide no analysis or reference to relevant

judicial authority supporting their interpretation of the state statute. In the only decisions

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regarding CEMA, Washington courts held that subject lines transmitted with commercial

email were deceptive when a recipient was forced to open the message to identify

unwanted commercial email. State v. Heckel, 122 Wn. App. 60 (Heckel II) (2004). In

that case, the Washington Attorney General brought suit against an Oregon resident,

Jason Heckel, alleging violations of the CEMA prohibitions involving two subject lines:

“Did I get the right e-mail address?” and “For your review - HANDS OFF!” Id. at 71. 

The Heckel II court held that those subject lines when transmitted with unsolicited

commercial email were deceptive because they were designed to entice the recipient to

open the message based on the mistaken belief that the message might be from a friend or

acquaintance, or business contact. Id. at 71. Similarly, in an earlier decision in that case,

the Washington Supreme Court characterized the sending of commercial email with

deceptive subject lines as shifting costs to consumers by making it “virtually impossible

to distinguish spam from legitimate personal or business messages.” State v. Heckel, 143

Wn.2d 824, 835 (Heckel I), cert. denied, 534 U.S. 997 (2001).

By this standard, Defendants’ “from” lines are not deceptive or misleading. 

Rather, Defendants’ “from” lines clearly inform recipients that the messages are

commercial solicitations. In some cases, Defendants provide the actual name of the

business entity on whose behalf the message is initiated. In other cases, they provide the

name of the line of business to which the message pertains. Unlike the Heckel subject

lines, no reasonable person would believe that a message from “CriminalJustice” is a

personal message. Accordingly, Plaintiffs’ CEMA claims fail.

Plaintiffs do nothing more than make a general reference to the emails attached to

the Gordon Declaration combined with a vague assertion that Defendants’ “from” lines

violate CEMA. This does not meet Plaintiffs’ burden of showing that there is no genuine

issue as to any material fact. Plaintiffs’ Motion should be denied.

F. Plaintiffs fail to establish that Defendants are the initiators of the emails

As described in the Motion for an Undertaking, Plaintiffs have filed numerous

emails with the Court from <msdsa.com>, <prefersend.com>, or <ew01.com>, which

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purportedly form the basis of their claims. Defendants did not initiate those messages,

nor do those messages have any relationship to Defendants. See Declaration of Michael

R. Geroe in Support of Motion for an Undertaking at ¶ ¶ 20, 21 (Dkt. No. 39) and

Exhibits thereto (Adknowledge did not send or initiate emails from <msdsa.com>,

<prefersend.com>, or <ew01.com>); Declaration of Michael Shopmaker in Support of

Motion for an Undertaking at ¶ ¶ 23, 24 (Dkt. No. 40) and Exhibits thereto (Virtumundo

did not send or initiate emails from <msdsa.com>, <prefersend.com>, or <ew01.com>);

Townsend Decl. (Dkt. No. 41) and Exhibits P, Q & R thereto (Defendants are not the

registrants of <msdsa.com>, <prefersend.com>, or <ew01.com>). 

Plaintiffs have failed to establish that Virtumundo sent the 7,890 emails described

in their Motion. There is no representation, for example, that all such emails included

return addresses at domain names registered to Virtumundo. Simply attaching thousands

of emails to a declaration and alleging that they violate CAN-SPAM is wholly

insufficient to meet Plaintiffs’ burden of establishing that there are no disputed issues of

material fact.

G. Plaintiffs’ purported evidence is inadmissible and should be stricken

Although a certain amount of rhetorical hyperbole is expected in our adversarial

system, such rhetoric becomes improper when it crosses the line into false statements of

fact. Plaintiffs cross that line many times in the Motion, repeatedly asserting, incorrectly,

that there are no disputed issues of material fact that would preclude summary judgment.

(see, e.g., Motion 2:2 (“[t]he material facts of this matter are uncontested”); id. at 5:8

(“there are no material facts in dispute”). Plaintiffs make little effort to educate

Defendants and the Court about those facts, in most cases failing to cite to specific

evidence (or any evidence). In other cases, Plaintiffs cite inadmissible hearsay or

speculation. Few, if any, of the “relevant facts” identified by Plaintiffs are supported by

citations to any evidence that might demonstrate their supposed uncontested status.

Rather, Plaintiffs refer generally to Exhibit A of the Declaration of James S. Gordon, Jr.

in support of the Motion (the “Gordon Decl.”), which consists of thousands of pages of

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printouts of emails allegedly sent by Defendants to Plaintiffs.

Plaintiffs make no effort beyond the stack of alleged emails to establish that each

(or any) of the 7,890 emails upon which they base their claims was sent by Defendants,

was received by Plaintiffs, or fails to identify an actual sender in its “from” line. 

Plaintiffs are even unclear as to the number of emails underlying their claim. See Gordon

Decl.¶ 26. This falls far short of the showing required to warrant summary judgment in

Plaintiffs’ favor. Defendants therefore object to Plaintiffs’ purported evidence, as set

forth in Exhibit A attached to this memorandum. Defendants hereby move to strike the

Gordon declaration in its entirety, or in the alternative move to strike each piece of

evidence identified in the attached Exhibit A.

IV. CONCLUSION

“The CANSPAM Act addresses ‘spam’ as a serious and pervasive problem, but it

does not impose liability at the mere drop of a hat.” Omega World Travel, supra, 469 F.

3d 348. Yet, Plaintiffs seek over ten million dollars based upon a hyper-technical

argument about an immaterial description in an email “from” line that CAN-SPAM does

not forbid.

In trying to educate the court about CAN-SPAM, Plaintiffs ignore the point that

CAN-SPAM does not prohibit commercial email; it merely regulates it. Congress makes

clear in the very first paragraph of CAN-SPAM that the statute was passed in order to

facilitate the transmission of commercial email through acceptable means. The Act sets

forth the construction and mandate defining those acceptable means, and Defendants

comply. Plaintiffs’ behavior illustrates they have no interest in actually stopping emails

from reaching their inbox, but rather they seek to use CAN-SPAM and CEMA to extract

settlement payments from law abiding commercial email businesses such as Defendants.

Plaintiffs fail to establish that there are no disputed issues of material fact and that

they are entitled to judgment as a matter of law. Plaintiffs’ Motion consists almost

entirely of rhetoric rather than legal argument. Plaintiffs do not identify the elements of

the causes of action for which they seek to recover, do not identify undisputed evidence

Case 2:06-cv-00204-JCC Document 82 Filed 01/08/2007 Page 23 of 24
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ OPP’N TO MOT. FOR

PARTIAL SUMM. J.

CASE NO. CV06-0204C - 22

that establishes each such element, do not authenticate the emails for which they seek to

recover, and do not establish that each of those emails contains materially false or

materially misleading header information. To the extent that Plaintiffs’ motion is

considered for summary adjudication of a single novel legal theory – whether CANSPAM requires an actual name in the “from name” field - Plaintiffs urge an expansive

interpretation of CAN-SPAM that is inconsistent with the policy concerns underlying the

Act. Plaintiffs’ position is unsupported by the plain language of the Act and is in any

case inapplicable to Plaintiffs’ emails, which accurately identify the sender.

Plaintiffs fail to meet their burden and, accordingly, Defendants respectfully

request the Court deny the Motion.

DATED this 8th day of January, 2007.

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

By:

Derek A. Newman, WSBA No. 26967

Roger M. Townsend, WSBA No. 25525

Attorneys for Defendants

Case 2:06-cv-00204-JCC Document 82 Filed 01/08/2007 Page 24 of 24