Claims under California Business & Professions Code Section 17529.5, the California anti-spam statute, are not preempted by the federal CAN-SPAM Act, a district court ruled. Noting the divergent rulings in the Northern District of California on the issue, the court agreed with the opinions that have broadly construed the exception to preemption for state laws that prohibit “falsity or deception in any portion of a commercial electronic message.” Consequently, the court concluded, the California statute is not preempted by the CAN-SPAM Act even though plaintiffs are not required to plead and prove the reliance and damages elements of common law fraud.

Asis Internet Services v. Subscriberbase, Inc., 2009 U.S. Dist. Ct. 112852 (N.D. Cal. Dec. 4, 2009) Download PDF

Editor’s Note: Asis is a frequent plaintiff in anti-spam cases. In a recent case involving Asis, the Ninth Circuit affirmed a district court ruling that Asis lacked standing under the CAN-SPAM Act because it failed to show harm within the meaning of the Act as a result of the defendant's e-mails. Asis Internet Services v. Azoogle.com, Inc., 2009 U.S. App. LEXIS 26232 (9th Cir. Dec. 2, 2009) (unpublished), citing Gordon v. Virtumundo, Inc., 575 F. 3d 1040, 1049 (9th Cir. 2009). Gordon is another frequent plaintiff in anti-spam cases, and another suit by Gordon was also summarily dismissed pursuant to the Virtumundo opinion. See Gordon v. SubscriberBase Holdings, Inc., 2009 U.S. Dist. LEXIS 115514 (E.D. Wash. Dec. 11 2009).