In the last several years, Harold Hoffman (“Hoffman”) has filed dozens of class action lawsuits in the state and federal courts of New Jersey. One common theme of many of these class action matters has been reliance on the State’s Consumer Fraud Act (“CFA”) to form the basis of his suits. Hoffman’s class actions typically focus on the sale or advertisement of a variety of goods and services, ranging from espresso machines and flowers, to cable television and online dating. Most recently, Hoffman has turned his attention to email marketing (e.g. “spam”) claims.
In the past several months, Harold Hoffman has filed a series of essentially identical “spam” class action lawsuits in the Superior Courts of New Jersey. Although his claims have evolved in complexity (after certain earlier iterations were dismissed), the current claims contain common factual allegations and legal theories. Specifically, it seems that Hoffman has set up multiple email accounts in his own name and in the name of various aliases. Messages sent to these email accounts appear to be forwarded/routed by Hoffman to a central email account. When these email messages reach Hoffman’s central repository, they apparently do not indicate from which email account they were forwarded. Hoffman then appears to target email communications that either have the sender’s name in the email “To” line or have a blank email “To” line. We have seen this result in his claiming that he cannot unsubscribe from these email messages because he cannot determine to which of his email addresses they were originally sent. Hoffman’s complaints may also include generalized claims that the unsubscribe mechanisms in the subject email communications do not work and that his efforts to unsubscribe by U.S. postal mail are not honored.
Based upon the above facts, Hoffman has filed class action complaints alleging multiple violations of the CFA, violations of New Jersey’s Racketeering Influenced Corrupt Organizations Act (“NJ RICO”), as well as claims for civil conspiracy. Because Hoffman’s litigation strategy has been to aggressively litigate these claims, defense costs can mount quickly.
Fortunately, there are multiple defenses to each of the claims alleged in these actions. The CFA and NJ RICO statutes have very specific pleading requirements. In addition, civil conspiracy is not a standalone claim in New Jersey. As such, when the CFA and NJ RICO claims are dismissed, the civil conspiracy claims must also be dismissed.
What Should You Do If Harold Hoffman or Any Other CFA or NJ RICO Plaintiff Sues You?
The key to successfully and promptly disposing of a CFA or a NJ RICO suit is retaining counsel that understands the nuances of Internet marketing, as well as relevant statutes and case law.
Of course the best way to succeed in any action relating to email marketing is to work closely with experienced counsel before you begin any email marketing campaign. In this industry, perhaps more than any other, a penny of prevention truly is worth more than a pound of cure.