The U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of an action under the California anti-spam statute, citing a ruling of the California Supreme Court on a previously certified question of controlling state law. In Kleffman v. Vonage Holdings Corp., 49 Cal. 4th 334, 232 P.3d 625 (Cal. June 21, 2010), the California Supreme Court held that a marketer did not violate California anti-spam laws when it sent e-mails from multiple domains in order to bypass spam filters. The California court found that California Business and Professions Code Section 17529.5, subdivision (a)(2), which provides that it is unlawful to advertise in a commercial electronic mail advertisement if the advertisement "contains or is accompanied by falsified, misrepresented, or forged header information," was not violated because the domain names referenced in the e-mail header information "actually exist and are technically accurate, literally correct, and fully traceable" to the marketer that sent them, and therefore the e-mails did not contain misrepresented header information. The Ninth Circuit concluded that because the California anti-spam claim was properly dismissed by the district court, it need not reach the question of whether the California statute is preempted by the federal CAN-SPAM Act.
Kleffman v. Vonage Holdings Corp., 2010 U.S. App. LEXIS 14372 (9th Cir. July 13, 2010) (unpublished) Download PDF