We are witnessing a spike in both federal and state unsolicited commercial email lawsuits across the country. In particular, many suits have been filed in the Utah federal district courts by XMission, L.C. (“XMission”), a Utah-based Internet Service Provider, against advertisers, email marketers, and their respective affiliates, for alleged violations of the CAN-SPAM Act (“CAN-SPAM”).
The XMission complaints typically allege materially false or misleading email message headers. More specifically, XMission generally alleges that: (1) headers contain false or misleading inducement language; (2) headers falsely create the appearance of an existing relationship; (3) headers contain a generic “from” name; (4) the commercial email message is sent from a privacy-protected domain name; (5) marketers employ invalid or unregistered email sender domains; or (6) marketers have sent the subject email message(s) using a URL which was registered for a purpose that violates the domain registrar’s terms of service. XMission often requests a temporary restraining order at the outset of its lawsuits, seeking to enjoin defendant marketers from sending future email to XMission clients.
What Should You Do If You Have Been Sued by XMission or Another ISP?
Because CAN-SPAM does not generally allow for a private right of action, the vast majority of cases are brought by Internet Service Providers. In addition, Attorneys General and the Federal Trade Commission are also authorized to bring CAN-SPAM lawsuits. Because the stakes are so high, it is critical to take the right steps when you first learn that you or your business has been named in a CAN-SPAM suit, both to preserve critical defenses and to avoid prejudice to your case.
Upon learning of the filing, or threat of filing, of a CAN-SPAM suit by an entity such as XMission, it is critical that you do not: (1) speak with your adversary, who may look to extract information harmful to your position; (2) issue press releases; (3) speak with employees, marketing partners, advertisers or others in the industry until after you have had the opportunity to speak with an experienced marketing law attorney; or (4) destroy, tamper with, or create documents.
How To Avoid A Spam Lawsuit?
There are certain best practices that can be implemented to minimize the risk of becoming involved in a “spam” lawsuit. Specifically, advertisers should confirm that their marketers are taking proper steps to maintain strict CAN-SPAM compliance. Likewise, marketers should ensure that they have proper protocols in place to both ensure their own compliance and ensure that their affiliates are compliant with CAN-SPAM regulations. Proper indemnity agreements are also critical. Above all, it is most important to work with experienced email marketing counsel before the launch of any campaign in order to implement the practices and procedures necessary to prevent the sending of unlawful commercial email, and by extension the filing of a CAN-SPAM lawsuit.