PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2137

BEYOND SYSTEMS, INC.,

 Plaintiff – Appellant,

 v.

KRAFT FOODS, INCORPORATED; VICT. TH. ENGWALL & CO.; KRAFT 

FOODS GLOBAL, INCORPORATED; CONNEXUS CORPORATION,

 Defendants – Appellees,

 and

HYDRA LLC; JOHN DOES 1-20,

 Defendants,

WORLD AVENUE USA, LLC,

Intervenor,

JAMES JOSEPH WAGNER; HYPERTOUCH, INCORPORATED,

Third-Party Plaintiffs.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Peter J. Messitte, Senior District 

Judge. (8:08-cv-00409-PJM)

Argued: October 29, 2014 Decided: February 4, 2015

Before NIEMEYER, WYNN, and THACKER, Circuit Judges.
2

Affirmed by published opinion. Judge Wynn wrote the opinion, in 

which Judge Niemeyer and Judge Thacker joined.

ARGUED: Richard Kennon Willard, STEPTOE & JOHNSON LLP, 

Washington, D.C., for Appellant. Darrell J. Graham, ROESER 

BUCHEIT & GRAHAM LLC, Chicago, Illinois; Ari Nicholas Rothman, 

VENABLE LLP, Washington, D.C., for Appellees. ON BRIEF: Stephen 

H. Ring, LAW OFFICES OF STEPHEN H. RING, P.C., Gaithersburg, 

Maryland; Michael S. Rothman, LAW OFFICE OF MICHAEL S. ROTHMAN, 

Rockville, Maryland; Jill C. Maguire, Benjamin B. Watson, 

STEPTOE & JOHNSON LLP, Washington, D.C., for Appellant. John K. 

Roche, PERKINS COIE LLP, Washington, D.C.; John E. Bucheit, 

ROESER BUCHEIT & GRAHAM LLC, Chicago, Illinois, for Appellees 

Kraft Foods, Incorporated, Vict. Th. Engwall & Co., and Kraft 

Foods Global, Incorporated. J. Douglas Baldridge, Lisa Jose 

Fales, VENABLE LLP, Washington, D.C., for Appellee Connexus 

Corporation.
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WYNN, Circuit Judge:

In the late 1990s and early 2000s, legislatures across the 

country became increasingly concerned about unwanted commercial 

e-mail colloquially known as “spam.” By 2004, thirty-five 

states had enacted some form of anti-spam legislation, though as 

might be expected each addressed the problem somewhat 

differently. See Roger Ford, Preemption of State Spam Laws by 

the Federal CAN-SPAM Act, 72 U. Chi. L. Rev. 355, 363 (2005). 

Among the common provisions in these statutes were the creation 

of private rights of action for internet service providers and

large statutory damage provisions. 

In this case, ostensible internet service provider Beyond 

Systems, Inc. seeks statutory damages from Kraft Foods, Inc. and 

Connexus Corporation under California’s and Maryland’s anti-spam 

statutes based upon several hundred e-mails which it alleges 

were unlawful spam. The district court summarily ruled that 

Beyond Systems consented to the harm underpinning its anti-spam 

claims and is therefore barred from recovery. We affirm the 

district court’s judgment on this ground. 

I.

A.

Beyond Systems is a Maryland corporation that provides at 

least a modicum of e-mail and server access to a limited number 
4

of clients. Paul Wagner owns Beyond Systems, whose servers are 

housed in his parents’ Maryland residence. Paul’s brother,

James Joseph (“Joe”) Wagner, owns Hypertouch, Inc., a nominal 

internet service provider in California that routes spam e-mails 

to Beyond Systems’ Maryland servers, where they are cached in 

accounts designed to hold spam e-mails. 

Hypertouch and Beyond Systems have histories of suing

alleged spammers. To further its litigation strategy, Beyond 

Systems developed web pages with hidden e-mail addresses—that 

is, e-mail addresses embedded in the code that generates the 

webpages that are not visible to website visitors. The hidden

e-mail addresses are discovered by “spam crawlers,” computer 

programs spammers use to look for e-mail addresses and subscribe 

them to e-mail lists. Because only spam crawlers can find these

hidden e-mail accounts, Beyond Systems uses them as “spam 

traps.” As a result, spam-trap-based litigation has accounted 

for 90% of Beyond Systems’ income in recent years.

Unlike other internet service providers that routinely try 

to block e-mail accounts from spam, Beyond Systems does nothing 

to filter or block spam e-mail. Further, Beyond Systems has 

increased its storage capacity to archive large volumes of spam 

messages, retaining them specifically to provide grounds for

litigation. 
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B.

Similar to Beyond Systems, Hypertouch operated in 

California with the same purpose of maximizing on spam-trapbased litigation. Pertinent to the issues in this matter, in 

2005, Hypertouch sued Kraft under California’s anti-spam law 

based on e-mails it received regarding Gevalia coffee, a Kraft 

brand. These e-mails allegedly had false headers, including 

incorrect “From” addresses, misleading subject lines, and other 

deficiencies which Hypertouch claimed violated California’s law. 

Under a settlement agreement reached in that litigation,

Hypertouch, on behalf of itself and its assignees, specifically 

disclaimed all rights it had to any causes of action based on

the Gevalia e-mails sent to that point and agreed to cooperate 

with Kraft in identifying future e-mails that might violate 

California law.

In 2008, Beyond Systems brought Maryland and California 

state-law claims against Kraft and Connexus in the United States 

District Court for the District of Maryland. Beyond Systems

alleged that it received a large volume of e-mails regarding

Kraft’s Gevalia coffee in violation of California’s and 

Maryland’s anti-spam statutes. Many of these e-mails were 

exactly the same ones that formed the basis of Hypertouch’s 2005

suit. 
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After discovery concluded, the district court granted 

partial summary judgment in favor of Kraft on “any claims based 

on the same e-mails that were the subject of Hypertouch’s June 

29, 2006 Settlement Agreement with Kraft” and “any claims based 

on e-mails sent directly to Hypertouch after the Settlement 

Agreement, where Hypertouch failed to notify Kraft within twenty 

days of receipt.” J.A. 655. Additionally, the district court 

granted partial summary judgment as to any e-mails barred by 

California’s one-year statute of limitations. 

The district court then bifurcated the trial on the 

remaining e-mails into a “liability” proceeding and a “damages” 

proceeding. Beyond Sys., Inc. v. Kraft Foods, Inc., 972 F. 

Supp. 2d 748, 754 (D. Md. 2013). During the liability 

proceeding, the district court held a jury trial, split into two 

phases, to determine whether Beyond Systems had standing to sue. 

Id. 

The first phase presented the jury with the question as to 

whether Beyond Systems was an internet service provider (or its 

state law equivalent). This phase presented none of Beyond 

Systems’ litigation activities, but instead focused exclusively 

on those services it provided to its customers, where its 

servers were housed, and other business-related activities. 972 

F. Supp. 2d at 754. The jury found that, according to this 
7

evidence, Beyond Systems was an internet service provider under 

California and Maryland law.

The second phase presented evidence of Beyond Systems’

litigation activities, including its relationship to Hypertouch 

and the percentage of its revenue derived from anti-spam 

litigation, and asked the jury if the Appellant was a “bona 

fide” internet service provider. The jury found that it was 

not. Therefore, the district court determined as a matter of 

law, inter alia, that Beyond Systems had invited its own 

purported injury and thus could not recover for it. On appeal, 

we review this issue of law de novo. Wilson v. Dollar Gen.

Corp., 717 F.3d 337, 342 (4th Cir. 2013).

II.

As an initial matter, we are bound to address the subject 

matter jurisdiction issue of whether Beyond Systems had Article 

III standing. Steel Co. v. Citizens for a Better Env’t, 523 

U.S. 83, 88-102 (1998) (recognizing that standing to maintain a 

suit implicates the court’s jurisdiction to entertain a suit and 

is thus a threshold question to be resolved before the merits). 

To have standing, a party must allege that it suffered a 

“concrete” harm, there must be “a fairly traceable connection 

between the plaintiff’s injury and the complained-of conduct of 

the defendant[,]” and the harm must be redressable. Id. at 103 
8

(internal quotation marks and citations omitted). The Supreme 

Court has also cautioned that the “absence of a valid . . . 

cause of action” does not implicate the court’s “power to 

adjudicate the case,” id. at 89, and we therefore take care not 

to conflate a standing inquiry with a merits inquiry. 

Doing so here, we conclude that Beyond Systems had Article 

III standing. It claimed a harm—receiving spam e-mail—and 

Maryland and California law create an interest in being free 

from such harm. See, e.g., Cantrell v. City of Long Beach, 241 

F.3d 674, 684 (9th Cir. 2001) (“state law can create interests 

that support standing in federal courts”); Md. Code §§ 14-3002, 

14-3003; Cal. Bus. and Prof. Code § 17529.5. Beyond Systems

contended that Defendants sent false and deceptive spam e-mails, 

i.e., caused its claimed harm. And Maryland and California law 

provide statutory redress. Id. Accordingly, we conclude that 

Beyond Systems had Article III standing.

III.

The central issue in this case is whether the common law 

doctrine of volenti non fit injuria precludes Beyond Systems’ 

recovery under the California and Maryland anti-spam statutes. 

The district court held that it does. We agree.

California’s anti-spam statute provides, in relevant part:
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(a) It is unlawful for any person or entity to 

advertise in a commercial e-mail advertisement either 

sent from California or sent to a California 

electronic mail address under any of the following 

circumstances:

. . . 

(2) The e-mail advertisement contains or is 

accompanied by falsified, misrepresented, or forged 

header information.

. . . 

(3) The e-mail advertisement has a subject line that a 

person knows would be likely to mislead a recipient, 

acting reasonably under the circumstances, about a 

material fact regarding the contents or subject matter 

of the message.

(b)(1)(A) In addition to any other remedies provided 

by any other provision of law, the following may bring 

an action against a person or entity that violates any 

provision of this section:

. . . 

(ii) An electronic mail service provider

Cal. Bus. and Prof. Code § 17529.5. 

Similarly, Maryland’s anti-spam act provides, in relevant 

part:

(b) A person may not initiate the transmission, 

conspire with another person to initiate the 

transmission, or assist in the transmission of 

commercial electronic mail that:

(1) Is from a computer in the State or is sent to an 

electronic mail address that the sender knows or 

should have known is held by a resident of the State; 

and

(2)(i) Uses a third party's Internet domain name or 

electronic mail address without the permission of the 

third party;
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(ii) Contains false or misleading information about 

the origin or the transmission path of the commercial 

electronic mail; or

(iii) Contains false or misleading information in the 

subject line that has the capacity, tendency, or 

effect of deceiving the recipient.

Md. Code § 14-3002. Additionally, Maryland law allows

“interactive computer service provider[s]” to pursue damages 

under the statute. Md. Code § 14-3003.

These state statutes exist against the backdrop of the 

Controlling the Assault of Non-Solicited Pornography and 

Marketing Act (“CAN-SPAM Act”), which Congress enacted to create 

a national uniform standard regarding spam control. 15 U.S.C. §

7701(a)(11). CAN-SPAM made it illegal to “initiate the 

transmission . . . of a commercial electronic message . . . that 

contains . . . header information1 that is materially false or 

materially misleading.” 15 U.S.C. § 7704. Congress 

specifically provided that the statute would preempt state laws, 

except for those that fit within a carve-out or “savings” 

provision. 15 U.S.C. § 7707(b)(1). That provision saved those 

state laws that “prohibit falsity or deception in any portion of 

 1 Header information includes an e-mail address, a domain 

name, an internet protocol address (IP address), or a “from” 

line, among other information. 15 U.S.C. § 7702(8).
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a commercial electronic mail message or information attached 

thereto . . . . ” Id.

This Court has held that “Congress was operating in the 

vein of tort when it drafted the pre-emption clause’s 

exceptions”. Omega World Travel, Inc. v. Mummagraphics, Inc., 

469 F.3d 348 (4th Cir. 2006). Thus, in this Circuit, it is 

clear that a state’s anti-spam statute is not preempted so long 

as it deals with falsity or deception in the vein of tort. Id.

While the highest court in Maryland has not spoken directly 

on the issue in this matter, we find the direct pronouncement of 

Maryland’s second highest court to be informative as to the 

state of Maryland’s law on this subject. In 2006, the Court of 

Special Appeals of Maryland made clear that violations of 

Maryland’s anti-spam statute, “like violations of the Consumer 

Protection Act, are ‘in the nature of a tort.’ Indeed, 

[because] both statutes regulate[] false and deceptive trade 

practices . . . the same principles that guide us when faced 

with questions of individual liability for torts apply here.” 

MaryCLE LLC v. First Choice Internet, Inc., 890 A.2d 818, 846 

(Md. App. 2006) (citation omitted).

Similarly, the second highest court in California provides 

us with guidance on the state of California law on this issue. 

In 2011, the California Court of Appeal concluded “that the CAN–

SPAM Act’s savings clause applies to any state law that 
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prohibits material falsity or material deception in a commercial 

e-mail . . . . ” Hypertouch, Inc. v. ValueClick, Inc., 192 Cal. 

App. 4th 805, 833 (Cal. Ct. App. 2011). The California court 

thereby limited the application of California’s anti-spam law to 

deceptive e-mails. Id. Thus, neither the California nor the 

Maryland anti-spam statutes, both of which are in the vein of a 

tort, is preempted.

Generally, tort-related statutes like these anti-spam laws 

are not exempt from common law principles. This makes sense,

“because statutes creating torts rarely bother to set forth all 

the ancillary doctrines-governing such issues as causation, 

immunity, or, here, derivative liability-that are necessary to 

compose a complete regime of tort liability.” Shager v. Upjohn 

Co., 913 F.2d 398, 404 (7th Cir. 1990). See also, e.g., 

Busching v. Sup. Ct., 12 Cal.3d 44, 52 (1974) (“[I]t is not to 

be presumed that the legislature in the enactment of statutes 

intends to overthrow long-established principles of law unless 

such intention is made clearly to appear either by express 

declaration or by necessary implication.”); Hardy v. State, 482 

A.2d 474, 478 (Md. 1984) (“Maryland courts adhere to the policy 

that statutes are not to be construed to alter the common-law by 

implication.”). Because the California and Maryland anti-spam 

statutes are in the vein of a tort, and nothing in their text 

suggests otherwise, common law tort principles that are part of 
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those states’ common law also apply to the causes of action 

these statutes create.

It is a general maxim of tort law that “no wrong is done to 

one who consents.” Restatement (Second) of Torts 892A cmt. a 

(1979). As such, “[o]ne who effectively consents to conduct of 

another intended to invade his interests cannot recover in an 

action of tort for the conduct or for harm resulting from it.” 

Id. § 892A. This principle has been known as “volenti non fit 

injuria,” or “to a willing person it is not a wrong.” Black’s 

Law Dictionary 1805 (10th ed. 2014). 

Maryland and California abide by volenti non fit injuria. 

As the Maryland Court of Special Appeals has recognized, “[a]ll 

intended wrongs have in common the element that they are 

inflicted without the consent of the victim. Those who, with 

full knowledge, assent to the invasion of their interests may 

not complain.” Janelsins v. Button, 648 A.2d 1039, 1042 (Md. 

Ct. Spec. App. 1994) (internal quotation marks and citation 

omitted); see also, e.g., Brazerol v. Hudson, 277 A.2d 585 (Md. 

1971) (landowners who consented to entry of dump truck on their 

land to transport materials to adjoining property could not 

recover for trespass and alleged crack in their basement wall). 

California has gone so far as to codify the maxim: “He who 

consents to an act is not wronged by it.” Cal. Civ. Code §

3515; see also Pinney & Topliff v. Chrysler Corp., 176 F. Supp. 
14

801, 810 (S.D. Cal. 1959) (referring to Section 3515 as “a 

codification of the maxim volenti non fit injuria”).

We take pause to note that this doctrine is separate and 

distinct from that of “assumption of risk,” with assumption of 

risk serving as a defense when the tort is based on the 

defendant’s negligent or reckless conduct, while the volenti 

doctrine applies when the plaintiff has consented to the 

defendant’s intentional conduct. See Restatement (Second) of 

Torts Chapter 17A, scope note; id. § 892A cmt. a. In a similar 

vein, while the Maryland Court of Special Appeals observed in 

Janelsins that “the two doctrines substantively amount to flip 

sides of a single conceptual principle,” it joined California in 

holding that “the doctrine of assumption of risk does not bar 

recovery for intentional torts.” 648 A.2d at 1044-45.

We agree with the district court that the evidence was 

“overwhelming” that Beyond Systems consented to the harm it 

claims it suffered. Beyond Sys., Inc., 972 F. Supp. 2d at 770. 

Beyond Systems created fake e-mail addresses, solely for the 

purpose of gathering spam. It embedded these addresses in 

websites so that they were undiscoverable except to computer 

programs that serve no other function than to find e-mail 

accounts to spam. Beyond Systems increased its e-mail storage 

capacity to retain a huge volume of spam, by which it hoped to 

increase its eventual recovery under anti-spam statutes. And it 
15

intentionally participated in routing spam e-mail between

California and Maryland to increase its exposure to spam and 

thereby allow it to sue under both states’ laws. Accordingly, 

we agree with the district court that Beyond Systems’ consent 

to—and indeed its solicitation of—the harm at issue in this case 

prohibits Beyond Systems from recovering under the Maryland and 

California anti-spam statutes.2

IV.

For the reasons above, we find that Beyond Systems cannot 

recover for the e-mails sent from Kraft or Connexus to Beyond 

Systems’ servers. And because we resolve this matter as 

detailed above, we need not and therefore do not address the 

parties’ other arguments. We thus affirm the district court’s 

judgment.

AFFIRMED

 2 We do not, by this opinion, suggest that a plaintiff which 

is a legitimate internet service provider whose business has 

been impacted by deceptive spam but who, in preparation for a 

lawsuit, gathers and retains deceptive e-mails and even sets 

“spam traps” to help it identify those responsible will be 

prevented from bringing suit by the “volenti non fit injuria” 

principle, but that plaintiffs like Beyond System, who 

“gratuitously created circumstances that would support a legal 

claim and acted with the chief aim of collecting a damage award”

cannot. Gordon v. Virtumundo, 575 F.3d 1040, 1068 (9th Cir. 

2009) (Gould, J., concurring).