A California appeals court has dismissed a putative class action alleging that Guthy-Renker LLC violated state anti-spam laws by sending the plaintiffs emails from nonexistent entities with subject lines that seemed to offer free gifts. Rosolowski v. Guthy-Renker LLC, No. B250951 (Cal. Ct. App., 2nd Dist., Div. 3, order entered October 29, 2014). So ruling, the court agreed with the lower court that the plaintiffs failed to state sufficient facts to allege a violation of the law.
The plaintiffs had claimed that Guthy violated the state’s anti-spam law because Guthy sent them “email advertisements purporting to be from ‘Proactiv Special Offer,’ ‘Wen Hair Care,’ ‘Proactiv Special Bonus Deal,’ ‘Proactiv Bonus Gift,’ and ‘Proactiv: Special Offer,’ which are not names or registered fictitious business names of existing entities, and are not traceable to Guthy via a WHOIS database search.” They also alleged that the emails “asserted the recipient was entitled to a free or complimentary gift, without mentioning the gift was contingent upon a purchase.”
The court assessed the allegations under Kleffman v. Vonage Holdings Corp., 232 P.3d 625 (Cal. 2010), and Balsam v. Trancos, Inc., 203 Cal. App. 4th 1083 (2012). In Kleffman, the California Supreme Court determined that the use of 11 different domain names that could all be traced to Vonage’s marketing agent did not violate the anti-spam statute. “An e-mail with an accurate and traceable domain name makes no affirmative representation or statement of fact that is false . . . [and] . . . cannot reasonably be understood to be an implied assertion that the source of that e-mail is different from the source of another e-mail containing a different domain name.”
Noting that Kleffman did not specify “what is meant by a traceable domain name,” the court found that Guthy did not use domain names that were traceable to the company. The court also compared the instant case to Balsam, in which the domain names were deliberately falsified and untraceable to affirmatively and falsely represent that the apparent sender had no connection to the actual sender. According to the court, “Balsam concluded Kleffman should be ‘read . . . commonsensically . . . to mean that a domain name is “traceable” to the sender if the recipient of an e-mail could ascertain the sender’s identity and physical address through the use of a publically available database such as WHOIS .’”
The court found that “[a]lthough the identity of the sender of the subject emails in the ‘from’ line could not be ascertained through the use of a publicly available database such as WHOIS , the body of the emails was sufficient to enable the recipient to identify Guthy as the sender” because the emails were advertisements for Guthy’s brands, linked to Guthy’s Website and provided an unsubscribe notice and physical address. “Plaintiffs cannot plausibly allege that Guthy attempted to conceal its [identity], as the clear purpose of emails was to drive traffic to Guthy’s website.”
Considering Guthy’s subject lines, the court found that “the subject lines were not likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.  The email advertisements plainly and conspicuously stated the conditional nature of the offer.” The court reasoned, “[W]e view an email’s subject line in conjunction with the body of the email, rather than in isolation. We conclude the subject lines’ offer of a free gift was not likely to mislead a recipient, acting reasonably under the circumstances, about a material fact , because the email advertisements made it clear that a free gift was conditional upon a purchase.”