Calif. federal court dismisses alleged ‘professional spammer’ from lawsuit over unsolicited emails

By Jessica Karmasek | Sep 27, 2017

SAN FRANCISCO (Legal Newsline) - A California federal court has dismissed claims against an alleged “professional spammer” in a lawsuit brought against it and others over hundreds of unsolicited emails.

Last week, the U.S. District Court for the Northern District of California granted defendant Panda Mail’s motion to dismiss.

Judge Maxine N. Chesney, in her Sept. 22 order, said the plaintiffs’ first amended complaint failed to identify the content of any of the emails Panda Mail is alleged to have sent.

“... Nor does it provide the date(s) on which those emails were sent, the names of the plaintiff(s) to whom they were sent, or any evidentiary facts to support a finding that any statement in any email sent by Panda Mail was untrue or misleading at the time such email was sent,” Chesney wrote.

The defendants in the case -- among them, Panda Mail, Fluent Inc., Reward Zone USA LLC and American Prize Center LLC -- filed their removal notice in the Northern District of California Aug. 7.

The companies, and others, were sued in San Francisco County Superior Court last September.

Plaintiff Mira Blanchard and others similarly situated accuse Fluent and related companies, along with their third-party advertising networks, of sending almost 600 “unlawful, unsolicited commercial emails.”

In particular, the plaintiffs allege “at least 75 of the spams at issue” were “sent” to them by Panda Mail and that other emails were “sent” to them by defendants AdReaction, FortAnalysis8 Develop, Concept Network and Diego Rufino, Priscila Arekelian and Andres Mary, all individuals.

Sauphtware Inc., doing business as Panda Mail, filed a motion Aug. 11 asking the California federal court to dismiss the plaintiffs’ first amended complaint.

Panda Mail argued the plaintiffs’ amended complaint fails to state a claim against it.

More specifically, the company contended state statute -- a section of the California Business and Professions Code -- only covers advertisers, and the plaintiffs, it pointed out, did not allege it advertised in any of the challenged emails but “sent” some of the emails in which Fluent advertised.

Chesney agreed in her 13-page order.

“Neither party has cited a case that expressly addresses the issue presented, nor has the Court located any such authority,” the judge wrote. “Where, as here, ‘the state’s highest court has not decided an issue [of state law], the task of the federal courts is to predict how the state high court would resolve it,’ and, as discussed below, the Court, applying principles of statutory interpretation set forth by the California Supreme Court, finds the California Supreme Court would interpret § 17529.5 in a manner consistent with the interpretation posited by Panda Mail.”

The plaintiffs, in their original complaint, said none of them gave “direct consent” to receive commercial email advertisements from, or had a “preexisting or current business relationship” with, the entities advertised in the spams.

They argued they suffered damages as a result of receiving the spams, and sought an award of liquidated damages of $1,000 per email. 

Chesney said should the plaintiffs wish to file a second amended complaint for the purposes of amending their claim against Panda Mail and/or to make other changes allowed by the court, it should be filed no later than Oct. 6.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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