NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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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’,

Plaintiff,

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’ MOTION TO

DISMISS 

NOTE ON MOTION CALENDAR:

September 15, 2006

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 1 of 15

Gordon v. Virtumundo Inc et al Doc. 30

Dockets.Justia.com
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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DEFS.’ MOT. TO DISMISS - i

(CV06-0204JCC)

TABLE OF CONTENTS

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

II. FACTS ALLEGED IN FIRST AMENDED COMPLAINT ....... 2

A. Plaintiffs’ CAN-SPAM and CEMA allegations ............... 2

B. Plaintiffs’ alleged actual damages ......................... 3

III. ARGUMENT ............................................ 4

A. The first and second causes of action should be dismissed

for failure to plead with particularity ...................... 4

B. The third and fourth causes of action should be dismissed

as a matter of law pursuant to Fed. R. Civ. P. 12(b)(6) ........ 8

1. Fed. R. Civ. P. 12(b)(6) Standard of Review. ............ 8

2. Plaintiffs’ CPA claims fail because there is no nexus

between the alleged violations and alleged damages. .... 9

3. Plaintiffs’ claim under RCW 19.170 et seq. fails

because Plaintiffs did not allege damages arising out

of a promotional advertising of prizes. ................ 11

IV. CONCLUSION ......................................... 12

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 2 of 15
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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DEFS.’ MOT. TO DISMISS - 1

(CV06-0204JCC)

I. INTRODUCTION

Plaintiffs seek statutory damages arising out of emails allegedly

received from Defendants (the “Emails”). Plaintiffs are in the business of

signing up for lists to receive solicitations by email, refusing to unsubscribe to

the lists through the prescribed process, and filing lawsuits under 15 U.S.C.

7705 et seq. (“CAN-SPAM”) and the Washington Commercial Electronic Mail

Act, RCW 19.190 et seq. (“CEMA”). Plaintiffs have filed dozens of such suits

and, upon information and belief, these lawsuits are their sole source of

income. In this case, Plaintiffs also allege claims under the Washington

Consumer Protection Act, RCW 19.86 ( the “CPA”) and the Washington state

law governing the promotional advertising of prizes, RCW 19.170 et seq. (the

“Prize Statute”).

Defendants bring this motion to dismiss on two grounds. First,

Plaintiffs fail to plead how each of the Emails allegedly violate CAN-SPAM

and CEMA (together, the “Email Statutes”). Plaintiffs are required to plead

with particularity because their claims arise under fraud based theories.

However, Plaintiffs merely parrot the elements of the Email Statutes and

follow that litany with a conclusory sentence stating that Defendants have

violated the statutes. These allegations are not enough to provide Defendants

a fair opportunity to receive notice and an opportunity to respond to the

allegations in this Lawsuit.

Furthermore, Plaintiffs have a demonstrated history (in this lawsuit

and others) of misrepresenting facts before the Court and refusing to describe

the alleged violations of the Email Statutes. This Court has previously

warned Plaintiffs that their “tendency to exaggerate claims in its briefing”

may give rise to sanctions under Fed. R. Civ. P. 11. (Order, Dkt. No. 24 at p.

3.n5). Requiring that Plaintiffs articulate their theories with particularity

will prevent the parties and the Court from engaging in unnecessary and

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 3 of 15
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

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DEFS.’ MOT. TO DISMISS - 2

(CV06-0204JCC)

protracted discovery disputes merely to understand Plaintiffs’ allegations.

Furthermore, Defendants seek an order pursuant to Fed. R. Civ. P.

12(b)(6) dismissing Plaintiffs’ third and fourth causes of action with prejudice

for failure to state a claim. Both the CPA and the Prize Statute require that

the plaintiff be actually damaged from a violation of the statute. Plaintiffs

failed to plead any causal link between the alleged conduct and the nature of

the alleged damages. Accordingly, Plaintiffs’ claims under the CPA and the

Prize Statute should be dismissed as a matter of law.

II. FACTS ALLEGED IN FIRST AMENDED COMPLAINT

A. Plaintiffs’ CAN-SPAM and CEMA allegations.

The gravamen of Plaintiffs’ First Amended Complaint (Dkt. No. 15,

“FAC”), is for alleged violations of the Email Statutes. However, the

allegations are so vague and conclusory that Defendants do not have a

reasonable opportunity to present a defense. Plaintiffs merely allege,

without elaboration or explanation, that the Emails violate CEMA because

they:

(i) obscure any information in identifying the point of origin or the

transmission path of a commercial electronic mail message; (FAC

at ¶ 4.2.1)

(ii) contain false or misleading information in the subject line; (FAC

at ¶ 4.2.2) and

(iii) solicit, request, or take any action to induce a person to provide

personally identifying information by means of a web page,

electronic mail message, or otherwise using the internet by

representing oneself, either directly or by implication, to be

another person, without the authority or approval of such other

person. (FAC at ¶ 4.2.3).

Plaintiffs similarly parrot the elements of CAN-SPAM, alleging that:

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 4 of 15
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

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DEFS.’ MOT. TO DISMISS - 3

(CV06-0204JCC)

(i) Plaintiffs have received “hundreds” of commercial electronic mails

messages from or on behalf of defendants. (FAC at ¶ 4.1.1);

(ii) Defendants initiated the transmission of commercial electronic

mail “included materially misleading subject lines.” (FAC at p.

4.1.4)’ and

(iii) Some of the Emails failed to include adequate notice of the nature

of the communication, a functioning unsubscribe link, a physical

postal address. (FAC at ¶ 4.1 et seq.).

Plaintiffs do not allege how, which, or how many of the Emails violate

either of the Email Statutes. It is not clear whether the Emails allegedly

include false and misleading subject lines, have obscured transmission paths,

utilize IP address spoofing, or any other theory of liability under the Email

Statutes. The FAC did not attach any copies of Emails and, without pleading

how each of the Emails violates the Email Statutes, Defendants cannot

ascertain the nature of Plaintiffs’ allegations.

B. Plaintiffs’ alleged actual damages.

The only actual damages Plaintiffs allege are interference with

computer “bandwidth” and the purported loss of computer usage service. (See

Dkt. No. 28). The damages allegedly arise out of the mere act of receiving the

Emails (and not as a result of the content of the emails themselves). 

Plaintiffs do not plead that they read any of the Emails, opened the Emails,

navigated from the Emails to a website, purchased any products or services

offered in the Emails, or otherwise responded to the Emails in any way. 

Plaintiffs simply had to expend the time to click “delete” on their email

program.

In regard to the Prize Statute, Plaintiffs do not allege any damages

related to the promotional advertising of prizes. Specifically, Plaintiffs do not

allege that they attempted to redeem a prize, entered into a contest, attended

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 5 of 15
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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DEFS.’ MOT. TO DISMISS - 4

(CV06-0204JCC)

a promotional seminar, received a prize that was a lower value than

represented in the promotion, entered into a contest in which the odds of

success were misrepresented, or otherwise responded to a promotional

advertising of prizes in any way. Plaintiffs’ only contention about the alleged

Prize Statute violation is that Plaintiffs received an undisclosed number of

Emails that allegedly violate the statute’s disclosure requirements.

With regard to the CPA, Plaintiffs do not allege any economic loss or

any damages that are causally related to violations of CEMA. Plaintiffs do

not allege that they were deceived by false and misleading subject lines in the

Emails that caused them to respond to the Emails. Plaintiffs do not allege

that the allegedly obscured information in identifying the point of origin or

the transmission path of the Emails caused them any damages. Plaintiffs do

not allege that the purported action to induce Plaintiffs to provide personally

identifying information actually caused Plaintiffs to provide such information

or otherwise damaged Plaintiffs. 

III. ARGUMENT

A. The first and second causes of action should be dismissed

for failure to plead with particularity.

Plaintiffs have failed to identify any theory linking any violation of

CAN-SPAM and CEMA to any specific emails or conduct. The FAC is so

vague that Defendants do not have a fair opportunity to respond. The FAC

merely parrots the Email statutes and tacks on a conclusory sentence that

Defendants have violated the statute. Plaintiffs respectfully request that the

Court require Plaintiffs to articulate, on an email by email basis, which of the

Emails violate which component of CAN-SPAM and CEMA.

The Ninth Circuit and appellate courts in the State of Washington have

yet to address whether the heightened pleading requirements of Fed. R. Civ.

P. 9(b) apply to claims under CAN-SPAM or CEMA. In a separate case

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 6 of 15
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

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DEFS.’ MOT. TO DISMISS - 5

(CV06-0204JCC)

brought by Plaintiffs against Impulse Marketing Group, Inc. in the Eastern

District of Washington, the court held that CEMA was not a fraud-based

cause of action and, therefore the heightened pleading requirements of Fed.

R. Civ. P. 9(b) did not apply. Gordon v. Impulse Marketing Group, Inc., 375

F. Supp. 2d 1040 (E.D. Wash. 2005). The docket in that case has reached 402

filings and Gordon has still refused to articulate a theory as to why and how

many emails violate applicable statutes. A review of the docket indicates that

many of those filings reflect efforts by the Defendants to simply understand

the allegations against them.

Other courts have recognized the peril of permitting anti-spam

plaintiffs to proceed based merely on conclusory allegations. The Northern

District of California reviewed and rejected the Eastern District of

Washington’s Gordon decision. Asis Internet Servs. v. Optin Global, Inc.,

2006 U.S. Dist. LEXIS 46309 (June 30, 2006 N.Dist.Cal.). In that case, Judge

Wilken concluded that “Rule 9(b) does not necessarily apply to Plaintiff's

claims.” Id. at 13. However, because the Plaintiff “does specifically allege

that the contents of the emails themselves, including their headers and

subject line information, were fraudulent, and the Court therefore concludes

that Rule 9(b) applies to those averments of fraud.” Id. at 14. Judge Wilkin

found:

aspects of Plaintiff's allegations of fraud are not plead with

particularity. Plaintiff alleges that Defendants sent email with

subject lines that "were false and misleading and would be likely to

mislead a recipient," P 36, but does not provide an example or

otherwise specify the manner in which the subject lines were false

and misleading. In addition, Plaintiff charges "Defendants,"

collectively, with responsibility for sending the allegedly fraudulent

emails. Ascribing to all Defendants the act of sending the allegedly

fraudulent email also runs afoul of Rule 9(b).

Id. at 15. Similarly, Judge Wilkin applied the heightened pleading

requirements of Fed. R. Civ. P. 9(b) to CAN-SPAM because the plaintiff was

required to prove that defendants “acted either with actual knowledge, or by

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 7 of 15
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

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DEFS.’ MOT. TO DISMISS - 6

(CV06-0204JCC)

consciously avoiding knowing, that the [] Defendants' acts were illegal.” 

Consequently, the Northern District of California granted the motion to

dismiss and required that the plaintiff plead its allegations with

particularity.

This Court should follow the Asis Internet decision. In the present

matter, Plaintiffs have alleged violations of the Email Statutes based upon

fraudulent “spoofing” of Internet protocol addresses, fraudulently obscuring

the point of origin of the Emails, that defendants fraudulently induced a third

party to provide personally identifying information, and that the Emails

contained false or misleading information in the subject line. (FAC at ¶¶ 4.1

& 4.2). Defendants cannot begin to sort out the scope of the alleged violations

and have fair opportunity to marshal a defense in this lawsuit without

Plaintiffs articulating how each of the Emails allegedly violate CAN-SPAM

and CEMA. The public policy underlying heightened pleading in fraud cases

applies here. Without a pleading of particularity, Defendants cannot defend

this case or analyze whether they may have violated the Email Statutes.

Moreover, from their filings to date, it is clear that Plaintiffs

themselves do not have a cognizable theory as to how Emails violate the

Email Statutes. The Court has expressly noted “Plaintiffs tendency to

exaggerate claims in its briefing.” (Order, Dkt. No. 24 at p. 3.n5). The FAC

alleges that Plaintiffs received “hundreds” of emails from Defendants. 

Plaintiff subsequently represented to the Court that there were 6,000 emails

that violate the Email Statute. (Id. at p.3; l.3) In their Amended Initial

Disclosures (Dkt. No. 28), however, Plaintiffs’ claim receipt of 11,000 emails

from Defendants (and claim only statutory damages and no actual damages). 

Similarly, Plaintiffs have filed conflicting declarations (Compare Dkt. No. 12,

¶ 4 with Dkt. No. 16, ¶ 4), but failed to notify the Court of the significant

change in the declarations and its relevance to the motion then before the

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 8 of 15
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

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DEFS.’ MOT. TO DISMISS - 7

(CV06-0204JCC)

Court. (See Dkt. No. 11). The majority of Emails in the record were from

third parties wholly unrelated to Defendants. (See Dkt. Nos. 12, 16 & 17). 

If the Court declines to apply Fed. R. Civ. P. 9(b) to the present matter,

Plaintiffs’ FAC nonetheless fails to comply with the liberal pleading

requirements under Fed. R. Civ. P. 8(a). Plaintiffs’ allegations merely parrot

the prohibitions in CEMA and Plaintiffs do not articulate how any of the

specific Emails actually violate the Email Statutes. This is plainly

inadequate under Fed. R. Civ. P. (8)(a). Gen-Probe, Inc. v. Amoco Corp., 926

F. Supp. 948, 961 (D. Cal. 1996) (providing that, “Even under liberal notice

pleading, the plaintiff must provide facts that ‘outline or adumbrate’ a viable

claim for relief, not mere boilerplate sketching out the elements of a cause of

action.”). Judge Lasnik recently held that Fed. R. Civ. P. 8(a) requires that

the complaint must give notice of the basic events and circumstances giving

rise to plaintiffs' claims to afford defendants a meaningful opportunity to

respond. In re Network Commerce Secs. Litig., 2006 U.S. Dist. LEXIS 30945,

*15 (W.D.Wash. May 16, 2006) (Lasnik, J.) (concluding that plaintiffs' bald

assertions were “so vague that defendants cannot meaningfully respond”); see

also United States ex rel. Karvelas v Melrose-Wakefield Hosp., 360 F.3d 220

(1st Cir. 2004) cert den 543 US 820 (2004). In the Karvelas decision, the First

Circuit noted that, 

Even under liberal pleading requirements of Fed. R. Civ. P. 8(a),

plaintiff must set forth factual allegations, either direct or

inferential, respecting each material element necessary to sustain

recovery under some actionable legal theory; simply parroting

language of statutory cause of action, without providing some

factual support, is not sufficient to state claim.

Id. at 226; see also 5 Charles Alan Wright et al., Federal Practice and

Procedure § 1216 at 156-59 (1990) (a complaint must contain "either direct

allegations on every material point necessary to sustain a recovery on any

legal theory . . . or allegations from which an inference may fairly be drawn

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 9 of 15
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

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DEFS.’ MOT. TO DISMISS - 8

(CV06-0204JCC)

that evidence on these material points will be introduced at trial"). It is a

fundamental matter of due process that a defendant cannot defend himself

against allegations that the plaintiff refuses to articulate. Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 546 (1985) (providing that the

"essential requirements of due process" are "notice and an opportunity to

respond."); see also State of Cal. ex rel. Lockyer v. FERC, 329 F.3d 700, 710

(9th Cir. 2003) (same).

Defendants request that the Court require Plaintiffs to articulate their

theories and identify the manner and form each of the Emails violates which

statutes in order to afford Defendants a fair opportunity to understand the

allegations made against them.

B. The third and fourth causes of action should be dismissed

as a matter of law pursuant to Fed. R. Civ. P. 12(b)(6).

1. Fed. R. Civ. P. 12(b)(6) Standard of Review.

A complaint should be dismissed for failure to state a claim upon which

relief may be granted under Federal Rule of Civil Procedure 12(b)(6) if it

"appears beyond doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41,

45-46 (1957). When the legal sufficiency of a complaint's allegations are

tested with a motion under Rule 12(b)(6), "[r]eview is limited to the

complaint." Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993). 

All factual allegations set forth in the complaint are taken as true and

construed in the light most favorable to the plaintiff. Epstein v. Wash.

Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996). However, “[w]hile a court

must accept all material allegations in the complaint as true and construe

them in the light most favorable to the nonmoving party, conclusory

allegations of law or unwarranted inferences of fact urged by the nonmoving

party are insufficient to defeat a motion to dismiss.” Segal Co. v. Amazon,

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 10 of 15
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505 Fifth Ave. S., Ste. 610

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DEFS.’ MOT. TO DISMISS - 9

(CV06-0204JCC)

280 F. Supp. 2d 1229, 1232 (W. D. Wash. 2003) (Coughenour, J.).

2. Plaintiffs’ CPA claims fail because there is no nexus between

the alleged violations and alleged damages.

In order to make a claim under the Washington Consumer Protection

Act, Plaintiffs must allege they have incurred injury to business or property

caused by a statutory violation. RCW 19.86.090. To establish a claim under

the Washington Consumer Protection Act, a plaintiff must prove each of the

following five elements: 

(1) an unfair or deceptive act or practice, (2) in trade or commerce, (3)

that impacts the public interest, (4) which causes injury to the party in

his business or property, and (5) which injury is causally linked to the

unfair or deceptive act.

Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d

778, 784-85 (1986). 

CEMA states, as a matter of law, emails which violate the CEMA

requirements are “an unfair or deceptive act in trade or commerce and an

unfair method of competition for the purpose of applying the consumer

protection act, chapter 19.86 RCW.” 19.190.100. This provision of CEMA,

however, only satisfies the first element of the five Hangman Ridge elements. 

A violation of CEMA is not a per se violation of the CPA. Rather, Plaintiffs

must also plead the other four CPA elements, including that the violations of

CEMA caused Plaintiffs economic injury to Plaintiffs’ business or property. 

Without such a link, the CPA (and its heightened damages) does not apply to

the present matter. 

Washington Courts are clear that “[d]amages under the CPA depend on

facts relevant to the CPA violations.” Smith v. Behr Process Corp., 113 Wn.

App. 306, 337 (Wash. Ct. App. 2002); see also Sign-O-Lite Signs v. Delaurenti

Florists, 64 Wn. App. 553 (Wash. Ct. App. 1992) (“The case law is clear that

treble [under the CPA] damages may only be based upon actual damages.”);

Edmonds v. Scott Real Estate, 87 Wn. App. 834, 850 (Wash. Ct. App. 1997)

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 11 of 15
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505 Fifth Ave. S., Ste. 610

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(CV06-0204JCC)

(the CPA “award must be based on the party's actual damages”). Similarly,

this Court has previously held that there must be a causal link between and

amongst the Hangman Ridge factors to sustain a CPA claim. Segal Co. v.

Amazon, 280 F. Supp. 2d 1229, 1233 (D. Wash. 2003) (Coughenour, J.) (re:

connection between violation and effect on public interest). Plaintiffs fail to

so plead because they incurred no actual damages as a result of the alleged

CEMA violations.

Even assuming that the Emails do somehow violate CEMA’s precepts,

Plaintiffs do not – and cannot – plead a causal relationship between the

CEMA violation and Plaintiffs’ alleged actual CPA damages. In order to bring

a claim under CEMA and CPA, Plaintiffs would have to plead that the

obscuring of transmission paths, false and misleading subject lines, etc. were

the cause of Plaintiffs’ alleged actual damages. However, Plaintiffs only

alleged damages result from the receipt of the Emails and the annoyance

resultant from the receipt of Emails. Mere annoyance and inconvenience are

insufficient to survive a claim under the CPA. See e.g., Keyes v. Bollinger, 31

Wn. App. 286 (1982) (providing that, “the reasoning of the federal decisions

and the language of RCW 19.86.090 persuade us that ‘mental distress,

embarrassment, and inconvenience,’ without more, are not compensable

under the Consumer Protection Act”); see also White River Estates v.

Hiltbruner, 134 Wn.2d 761, 765 n.1 (1998); Wash. State Physicians Ins. Exch.

& Ass'n v. Fisons Corp., 122 Wn.2d 299, 318 (1993). 

Plaintiffs failure to allege that they read the Emails or responded to the

Emails in any way is fatal to their Third Cause of Action. Plaintiffs have not

pled that the Emails caused injury to their business and property and that

the injury is causally linked to the allegedly false and deceptive nature of the

Emails. Accordingly, Plaintiffs’ CPA claims must be dismissed as a matter of

Law.

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 12 of 15
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

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1Plaintiffs’ allegations under the Prize Statute, like the allegations under the Email

Statutes, suffer from a fundamental failure to afford Defendants a fair opportunity to understand

and defend against the allegations. Plaintiffs do not articulate how any single email violates any

provision of the Prize Statue. In the event that the Court denies Defendants Motion to Dismiss

claims under the Prize Statute, Defendants respectfully request that the Court order Plaintiffs to

plead allegations under the Prize Statue with particularity and identify which of the Emails

violate which provisions of the Prize Statute. 

2Counsel was able to locate only two cases citing the Washington promotional advertising

of prizes act, Wascisin v. Olsen, 90 Wn. App. 440, 444 (Wash. Ct. App. 1997) and Gordon v.

DEFS.’ MOT. TO DISMISS - 11

(CV06-0204JCC)

3. Plaintiffs’ claim under RCW 19.170 et seq. fails because

Plaintiffs did not allege damages arising out of a

promotional advertising of prizes.

Plaintiffs baldly allege that some of the Emails do not comply with the

disclosure requirements in RCW 19.170.0301. (See FAC at ¶ 4.3.2). Like the

CEMA claims, Plaintiffs’ allegations are a mere parroting of the disclosure

requirements set forth in the statute without any analysis, application to

Plaintiffs, or otherwise allege a consequence from the alleged violation. 

Plaintiffs cannot bring a cause of action under RCW 19.170 et seq.

because Plaintiffs do not allege damage from the alleged promotional

advertising of prizes. Plaintiffs do not allege that they entered a contest,

responded to the promotional advertising of prizes, or even read the Emails

allegedly including promotional advertising of prizes. Plaintiffs only allege

that some of the Emails included promotional offers that did not comply with

the disclosure requirements of the Prize Statute. 

The standing requirement to bring a private cause of action under the

Prize Statute is specific and does not permit bringing a claim merely because

the plaintiff received a promotion. Pursuant to the Prize Statute, “A person

who suffers damage from an act of deceptive promotional advertising may

bring an action against the sponsor or promoter of the advertising, or both.” 

RCW 19.170.060 (1) (emphasis added). The plain language of the standing

requirement under the Prize Statute requires that the plaintiff be damaged

from the prize offering.2 In the present matter, Plaintiffs do not allege that

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 13 of 15
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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Impulse Mktg. Group, Inc., 2006 U.S. Dist. LEXIS 32005 (D. Wash. 2006). The later case is

another spam litigation case brought by Plaintiffs in this case. However, none of the cases

provide any substantive analysis of RCW 19.170 et seq.

DEFS.’ MOT. TO DISMISS - 12

(CV06-0204JCC)

they suffered any actual damages as a result of the allegedly deceptive

promotional advertising. Plaintiffs did not attempt to “claim a prize, attend a

sales presentation, meet a promoter, sponsor, salesperson, or their agent, or

conduct any business in this state.” RCW 19.170.010. To the contrary,

Plaintiffs merely allege that they received the Emails.

 The Prize Statute provides a private right of action for damages only to

those individuals injured by a violation of the law's substantive provisions. 

The statute does not provide a broad reaching claim to sue for damages

merely because the Plaintiffs received or viewed a promotion that did not

comply with the disclosure requirements. Rather, Plaintiffs must pursue the

offered prize and be damaged as a result failure to comply with the disclosure

requirements (e.g., that the prize had a lesser value, that the odds of winning

were not accurately stated, etc.). Damages in a private cause of action cannot

be realized merely from viewing an email or other promotional offer; there

must be some additional step taken to redeem the offer.

IV. CONCLUSION

For the foregoing reasons, Defendants respectfully request that the

Court dismiss Plaintiffs’ First Amended Complaint. Plaintiffs’ allegations are

merely bald recitations of the elements of CAN-SPAM and CEMA and do not

afford Defendants a fair and reasonable opportunity to respond. Plaintiffs

should be required to identify how each Email violates CAN-SPAM and

CEMA. 

Furthermore, Plaintiffs’ claims under the CPA and the Prize Statute

should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because Plaintiffs

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 14 of 15
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO DISMISS - 13

(CV06-0204JCC)

have not plead any causal connection between the alleged violations under

and any actual damages incurred. 

DATED this 24th day of August, 2006.

Respectfully Submitted,

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

By:

Derek A. Newman, WSBA No. 26967

Roger M. Townsend, WSBA No. 25525

Attorneys for Defendants

Virtumundo, Inc.

Adknowledge, Inc.

Scott Lynn

Case 2:06-cv-00204-JCC Document 30 Filed 08/24/2006 Page 15 of 15