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Hoang v. Reunion.com (N.D. Cal.)

Hoang v. Reunion.com (N.D. Cal.)

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Judge Chesney reconsiders her earlier decision dismissing the claims brought against Reunion.com, and finds that claims under the California spam statute are not preempted by CAN-SPAM.
Judge Chesney reconsiders her earlier decision dismissing the claims brought against Reunion.com, and finds that claims under the California spam statute are not preempted by CAN-SPAM.

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Published by: Venkat Balasubramani on Apr 15, 2010
Copyright:Attribution Non-commercial

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09/23/2010

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   U  n   i   t  e   d   S   t  a   t  e  s   D   i  s   t  r   i  c   t   C  o  u  r   t
   F  o  r   t   h  e   N  o  r   t   h  e  r  n   D   i  s   t  r   i  c   t  o   f   C  a   l   i   f  o  r  n   i  a
IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIAVIOLETTA HOANG, et al.,Plaintiffs,v.REUNION.COM, INC.,DefendantNo. C-08-3518 MMC
ORDER RECONSIDERING ANDVACATING IN PART DECEMBER 23,2008 ORDER; DENYING DEFENDANT’SMOTION TO DISMISS FIRST AMENDEDCOMPLAINT; SETTING CASEMANAGEMENT CONFERENCE
By order filed December 23, 2008, the Court dismissed with leave to amend the FirstAmended Complaint (“FAC”) filed by plaintiffs Violetta Hoang, Livia Hsiao, MichaelBlacksburg, and Matthew Hall. By order filed October 20, 2009, the Court afforded theparties leave to file supplemental briefing to address whether, in light of the Ninth Circuit’srecent ruling in Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2009), the Court shouldreconsider its December 23, 2008 order. In response thereto, on December 3, 2009,plaintiffs filed a Supplemental Brief in Support of Reconsideration of Court’s OrderDismissing First Amended Complaint, and defendant Reunion.com, Inc. filed aSupplemental Brief in Support of Dismissal of Plaintiffs’ First Amended Complaint.Thereafter, on January 8, 2010, plaintiffs and defendant each filed a supplementalresponsive brief.
Case3:08-cv-03518-MMC Document107 Filed03/31/10 Page1 of 12
 
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Section 17529.5(a) provides as follows:(a) It is unlawful for any person or entity to advertise in a commercial e-mailadvertisement either sent from California or sent to a California electronic mailaddress under any of the following circumstances:(1) The e-mail advertisement contains or is accompanied by athird-party's domain name without the permission of the thirdparty.(2) The e-mail advertisement contains or is accompanied byfalsified, misrepresented, or forged header information. Thisparagraph does not apply to truthful information used by a thirdparty who has been lawfully authorized by the advertiser to usethat information.(3) The e-mail advertisement has a subject line that a personknows would be likely to mislead a recipient, acting reasonablyunder the circumstances, about a material fact regarding thecontents or subject matter of the message.See Cal. Bus. & Prof. Code § 17529.5(a).
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Having read and considered the parties’ supplemental submissions, the Court rulesas follows.In the FAC, plaintiffs allege claims under § 17529.5(a) of the California Business &Professions Code.
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In its December 23, 2008 order, the Court agreed with plaintiffs thatthey had adequately alleged the e-mails they received from defendant contained falsestatements, that defendant knew the statements would convey false representations to therecipients, that the statements were material, and that defendant intended the recipients torely on the statements. The Court, however, granted defendant’s motion to dismiss anddismissed the FAC for two reasons. First, the Court found plaintiffs’ claims werepreempted by the Controlling the Assault of Non-Solicited Pornography and Marketing Act(“CAN-SPAM”), specifically, by 15 U.S.C. § 7707(b)(1), discussed infra, because plaintiffsdid not allege they had relied on and were damaged by the allegedly false statements inthe subject e-mails. Second, the Court found plaintiffs had failed to adequately allegestanding, because plaintiffs did not allege they had suffered any injury resulting from theirreceipt of the e-mails. // 
Case3:08-cv-03518-MMC Document107 Filed03/31/10 Page2 of 12
 
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Defendant correctly observes that counsel for plaintiffs, in the context ofrepresenting other clients in other cases, have made arguments inconsistent with thatmade on behalf of plaintiffs herein, specifically, that a plaintiff cannot state a claim under§ 17529.5 in the absence of an allegation of reliance and resulting injury. (See, e.g., Def.’sSupp. Brief, filed December 3, 2009, Ex. A at 7.) Defendant argues such conduct is inviolation of ethical rules prohibiting an attorney from knowingly making an incorrectrepresentation concerning the law. The necessity of a showing of reliance and resultinginjury is not, however, a settled issue, and, in any event, the Court finds, irrespective ofwhatever questions may be raised by counsel’s arguments in other cases, such mattershave no bearing on the issue of whether plaintiffs in the instant case have stated a claim.
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Thereafter, on August 6, 2009, the Ninth Circuit announced its decision in Gordon v.Virtumundo, Inc.. In Gordon, the Ninth Circuit considered whether the plaintiff therein hadstanding to allege claims under a Washington state statute substantially similar to§ 17529.5(a), and whether such plaintiff’s claims under that statute were preempted byCAN-SPAM.This Court, now having available the Ninth Circuit’s reasoning as set forth inGordon, finds it appropriate to reconsider its December 23, 2008 order grantingdefendant’s motion to dismiss the FAC, and, as discussed below, to deny the motion todismiss.
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A. Standing
In Gordon, the plaintiff alleged he had received “materially misleading or otherwiseunlawful” commercial e-mails from the defendant, see Gordon, 575 F.3d at 1045, andsought relief under CAN-SPAM, as well as under a Washington state statute. Asexplained in Gordon, CAN-SPAM, in relevant part, prohibits the “transmi[ssion] [of]messages with ‘deceptive subject headings’ or ‘header information that is materially falseor materially misleading’,” see id. at 1048 (quoting 15 U.S.C. §§ 7704(a)(1), (2)), andrequires that a commercial e-mail include the sender’s address, see id.; the Washingtonstate statute, in relevant part, prohibits the transmission of a commercial e-mail thatcontains “‘false or misleading information in the subject line’” or that “‘misrepresents orobscures any information in identifying the point of origin’.” See id. at 1057 (quoting Wash.Rev. Code § 19.190.020(1).)Addressing first the issue of whether the plaintiff had standing to seek relief under
Case3:08-cv-03518-MMC Document107 Filed03/31/10 Page3 of 12

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