Gordon v. Virtumundo, Inc.

Citations: 575 F.3d 1040; 48 Communications Reg. (P&F) 440; 2009 U.S. App. LEXIS 17518; 2009 WL 2393433Docket: 07-35487

Court: Court of Appeals for the Ninth Circuit; August 6, 2009; Federal Appellate Court

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The case involves James S. Gordon, Jr., who operates gordonworks.com, as the plaintiff-appellant against Virtumundo, Inc., Adknowledge, Inc., and Scott Lynn, the defendants-appellees. The Ninth Circuit Court addresses issues related to unsolicited commercial e-mail, commonly known as spam, which is a significant annoyance to users and a burden on businesses due to network slowdowns and increased costs. The court recognizes that while spam is largely viewed negatively, email marketing is a legitimate tool for businesses. 

In response to the challenges posed by spam, Congress enacted the CAN-SPAM Act of 2003, aiming to regulate commercial e-mail without hindering legitimate marketing efforts. Gordon and his company, Omni Innovations, LLC, sued the defendants, who engage in widespread e-mail marketing for third-party clients, claiming injunctive relief and damages for receiving numerous unsolicited e-mails. 

The district court granted summary judgment in favor of the defendants, concluding that Gordon's claims lacked merit based on the evidence presented. The Ninth Circuit, reviewing the case under its jurisdiction, affirmed the district court's decision, agreeing that summary judgment was appropriate. Gordon is identified as the registrant of the domain gordonworks.com, using GoDaddy's services for hosting and managing his online presence.

Gordon faced significant restrictions in his use of leased server space, where he created a personal email address, jim@gordonworks.com, and subsequently set up additional accounts for friends and family for data collection and research. He registered these accounts in response to online promotions and estimated subscribing to email lists 100 to 150 times, leading to an influx of marketing emails, including those from companies like Virtumundo. Gordon's clients relinquished control of their accounts to create personal domains through GoDaddy on the leased server. Despite his monitoring of the gordonworks.com accounts for spam research, he later set up an automated response to unsolicited commercial emails, claiming it formed a binding contract with senders to cease communications or incur a fee.

Gordon alleged that online marketers ignored his requests to remove his accounts from mailing lists and failed to provide evidence of following opt-out procedures, resulting in continued spam accumulation. By January 2007, the only active users of gordonworks.com accounts were Gordon and his wife. In 2004, he began filing lawsuits against entities sending unsolicited emails, culminating in a February 2006 lawsuit against Virtumundo in the Western District of Washington for violations of the CAN-SPAM Act, the Washington Commercial Electronic Mail Act, the Washington Consumer Protection Act, and the Washington Prize Statute. Gordon claimed Virtumundo sent approximately 13,800 misleading emails and sought injunctive relief, statutory damages, and attorney's fees. In December 2006, the court partially granted and denied Virtumundo's motion to dismiss, dismissing the Prize Statute claims and parts of the CEMA and CPA claims related to personally identifying information but allowed Gordon to amend his complaint, which he did not do.

Virtumundo filed a motion for summary judgment on remaining claims from Gordon, including those under the CAN-SPAM Act and state laws CEMA and CPA. On May 15, 2007, the district court ruled in favor of Virtumundo, determining that both Gordon and Omni lacked standing to bring a private action under the CAN-SPAM Act and that the state claims were legally insufficient, partially due to federal preemption. Gordon is now appealing this summary judgment. The appellate review will be conducted de novo, applying the same standard as the trial court under Federal Rule of Civil Procedure 56. The appeal will assess if there are genuine issues of material fact and whether the law was correctly applied. 

The CAN-SPAM Act, effective January 1, 2004, was established to regulate commercial e-mails due to concerns over spam. It does not prohibit spam but sets standards for commercial messaging, including bans on deceptive subject lines and false header information. Requirements include disclosing the sender's physical address and providing recipients with a method to opt-out of future communications. Enforcement of the Act is primarily the responsibility of the Federal Trade Commission and state attorneys general, though it allows a limited private right of action for adversely affected Internet access service providers to seek damages or injunctions against violators, with statutory damages potentially reaching $300 per unlawful email.

The Act permits the district court to award attorneys' fees and costs at its discretion under 15 U.S.C. 7706(g)(4). In private actions claiming violations of the CAN-SPAM Act, a key issue is whether the plaintiff meets the statutory standing requirements. Virtumundo challenged the standing of Gordon and Omni in their summary judgment motion. The district court thoroughly analyzed relevant case law, the CAN-SPAM Act, and its legislative history, concluding that the plaintiffs failed to demonstrate adequate harm, thus lacking standing for federal claims. This conclusion was affirmed, recognizing that the existing case law on CAN-SPAM standing is limited, with no comprehensive circuit-wide analysis. The standing inquiry consists of two components: whether the plaintiff is an "Internet access service" provider and whether they were "adversely affected" by violations. The standing provision is deemed ambiguous, prompting a need for careful statutory construction to discern Congressional intent. The court emphasizes that while there is significant opposition to spam, the CAN-SPAM Act seeks to balance regulation with the acknowledgment of the value of commercial email as a communication tool.

Low-cost and globally accessible, email facilitates the growth of frictionless commerce, as outlined in 15 U.S.C. 7701(a)(1). Unlike traditional mail, email can reach millions instantly and at minimal cost. The CAN-SPAM Act includes tailored regulations to combat deceptive practices and mitigate spam's negative impact while ensuring lawful business operations are not hindered. Congress limited enforcement standing to a select group: the Federal Trade Commission, specific state and federal agencies, state attorneys general, and bona fide Internet service providers (ISPs) affected by violations, as specified in 15 U.S.C. 7706. This restriction is not due to indifference towards consumer spam effects; instead, the Act acknowledges the costs associated with unsolicited emails, including storage and time wasted.

Congress aimed to empower those most capable of enforcing the law effectively against spam, leading to a narrow definition of private right of action, particularly for legitimate ISPs. Concerns were raised about opportunistic plaintiffs seeking damages, prompting Congress to ensure that only genuine ISPs could pursue action under the Act. The legislation reflects an awareness that the Internet's rapid evolution requires careful consideration of its regulatory framework, as the landscape of online services has dramatically changed since the Act's inception. Users now engage in diverse online activities beyond email, necessitating a flexible and forward-looking approach to legislation in this fast-evolving domain.

Courts must recognize that the expanding online landscape may blur the lines of the statutory definitions set by Congress. A standing analysis is applied to determine if Gordon qualifies as a "provider of Internet access service" under the CAN-SPAM Act, which defines this term based on the Communications Act. This definition includes services enabling user access to Internet content and email, but excludes telecommunications services. The court has not previously defined "Internet access service" under the CAN-SPAM Act, noting existing ambiguities in the statutory definition. District courts have interpreted this term broadly, encompassing various services beyond traditional ISPs, such as email service providers and social media platforms like Facebook. Gordon asserts his status as an IAS provider through his domain and leased server space, enabling user access to online content and email. However, the court acknowledges that this broad interpretation could encompass a wide range of services, including those offered by casual users or businesses like Internet cafes, which was not Congress’s intent. While statutory standing is not confined to traditional ISPs, the court rejects an overly expansive definition that would disregard legislative intent, particularly emphasizing that merely providing email accounts does not suffice for qualification as an IAS provider.

Congress expressed concern over the rise of unsolicited commercial e-mail, highlighting its financial impact on Internet access service (IAS) providers, businesses, and educational and nonprofit institutions receiving such mail (15 U.S.C. 7701(a)(6)). IAS providers are distinguished from those that merely carry or receive unsolicited e-mails. Under the CAN-SPAM Act, the standing to sue requires more than just receiving mail. The University of Texas is found to meet the definition of IAS provider, whereas Gordon, who registers and hosts domain names through leased server space, does not qualify. Gordon lacks physical control over the hardware owned and maintained by GoDaddy and only utilizes a control panel via an ISP for administrative tasks, contrary to the operational role of an IAS provider. Despite his engagement in creating e-mail accounts for others, Gordon's limited involvement and failure to mitigate spam suggest he does not fulfill the role of a bona fide e-mail provider. His argument for standing is unconvincing, as he has actively engaged in practices that accumulate spam rather than combat it. Furthermore, while Gordon has encountered significant amounts of commercial e-mail, this alone does not establish statutory standing. To pursue a private right of action, IAS providers must show they have been "adversely affected by a violation" of the Act (15 U.S.C. 7706(g)(1)). The district court noted that for standing to exist, the harm must be real and uniquely experienced by IAS providers, a standard that Gordon fails to meet.

All courts addressing the matter have concluded that the harms anticipated by Congress under the CAN-SPAM Act do not include ordinary inconveniences faced by consumers. Standing is granted solely to adversely affected Internet Access Service (IAS) providers, not consumers, indicating that redressable harms must pertain specifically to IAS providers. The legislative record highlights costs associated with managing spam, such as investing in equipment, expanding capacity, and enhancing filtering systems. Courts have defined actionable harms to include network crashes, increased bandwidth use, and additional costs for upgrades and personnel, which align with Congress's intent. 

Harm must be real and significant to a bona fide IAS provider, exceeding mere annoyance or typical operational burdens. Evidence of operational impairments and financial costs linked to unwanted emails can establish standing. Courts are tasked with distinguishing between regular operational costs and actual harm, expecting providers to maintain adequate resources and implement spam filters as standard practice. Additionally, there must be a clear connection between the alleged harm and practices prohibited by the Act, indicating that the concerns relate specifically to spam and contribute to a broader spam issue affecting ISPs.

The threshold for establishing standing under the CAN-SPAM Act should not be overly stringent for legitimate Internet access service (IAS) providers. Recognized ISPs may have presumed harm due to substantial resources spent combating spam, as highlighted by industry reports. However, for private plaintiffs with questionable IAS status, courts must carefully evaluate their service operations and the actual harms suffered due to spam.

In the case involving Gordon, he claimed harm from spam emails sent by Virtumundo, asserting that they overwhelmed his service. However, the interpretation of the CAN-SPAM Act's standing provision indicates that Gordon does not meet the criteria for being adversely affected. His activities suggest he is not a bona fide IAS provider, as he actively seeks out spam to support litigation rather than manage a legitimate service. 

Gordon has failed to demonstrate any real harm, lacking evidence of increased costs, personnel needs, or technical issues related to spam. His refusal to implement standard spam filters and his admission of creating "spam traps" indicate a lack of effort to mitigate spam. Consequently, the court found that his claimed harms pertain mainly to litigation rather than genuine operational difficulties, reinforcing that he has not suffered the type of harm the CAN-SPAM Act was designed to address.

Gordon operates an anti-spam litigation business, receiving large batches of unsolicited e-mails from his "clients," which he uses to file lawsuits against spammers. His clients share in settlements based on their contributions of e-mails for specific cases. Gordon identifies as a professional plaintiff and has not held any employment since 2004, relying solely on income from settlements related to his anti-spam efforts. His company, Omni, generates no revenue outside of these lawsuits. Although the term "professional plaintiff" is not inherently negative, Gordon's status is crucial for assessing his standing under the CAN-SPAM Act. 

The document emphasizes that Gordon's complaints regarding spam are largely self-imposed; he intentionally seeks out spam to benefit financially from litigation rather than experiencing genuine harm typically associated with unsolicited e-mails. The court acknowledges the detrimental effects of spam on legitimate businesses but asserts that Gordon's activities do not align with the intentions behind the CAN-SPAM Act, which aims to protect genuine Internet Service Providers (ISPs). Consequently, the court concludes that Gordon lacks standing to pursue claims under the CAN-SPAM Act, affirming the dismissal of his federal claims. Additionally, Gordon appeals the dismissal of his claims under Washington's Commercial Email Misrepresentation Act (CEMA), which regulates commercial e-mail practices.

No individual may send, conspire to send, or assist in sending a commercial email from Washington that uses a third party's internet domain without permission or misrepresents the origin of the email. Additionally, emails must not contain false or misleading subject lines. Washington’s Commercial Electronic Mail Act (CEMA) allows individuals or "interactive computer services" to initiate private actions for violations, unlike the more restrictive CAN-SPAM Act. The claims in this case focus on email headers, as CEMA does not regulate email body content or opt-out mechanisms. 

In the appeal, Gordon's claim regarding misleading subject lines was dismissed because he failed to provide specific examples or evidence, merely contesting Virtumundo's position without articulating a clear argument. The court emphasized that the opposing party must present specific, triable facts and cannot rely on vague allegations or conjecture. Consequently, Gordon's claims regarding deceptive subject lines were deemed insufficient to survive summary judgment. The remaining issue pertains to allegations that Virtumundo's email headers misrepresent the sender's identity, which the court reviews in light of potential preemption under the CAN-SPAM Act, although the Washington Attorney General argues that preemption need not be addressed.

A district court's judgment may be affirmed on any basis supported by the record, regardless of whether the same reasoning was used by the district court. The State contends that it can uphold a summary judgment on a CEMA claim, arguing that Gordon's allegations about header information do not meet Washington's deception standard. However, the court identifies a significant flaw in this reasoning, noting that CEMA prohibits the sending of commercial emails that misrepresent or obscure information regarding the origin or transmission path. Washington law's standard for "deception" is only pertinent if it constrains CEMA's broad language, which the State fails to do. 

In Benson v. Oregon Processing Service, the appellate court defined "misrepresent" and "obscure" using their ordinary meanings, thereby extending the interpretation of CEMA to cover a wide range of actions, including those that are not deceptive, which could lead to liability for unintentional errors. The court concludes that CEMA's prohibitions are not limited to deceptive acts as the State assumes. The potential for legislative or judicial clarification of CEMA's broad language remains with the State.

The discussion then shifts to whether summary judgment is appropriate under the doctrine of preemption, specifically concerning the CAN-SPAM Act's potential preemption of CEMA claims. There is no existing Ninth Circuit authority on this issue, making it a matter of first impression. The preemption concept arises from the Supremacy Clause of the U.S. Constitution, which asserts that federal laws take precedence over conflicting state laws. Courts generally recognize three situations in which federal preemption occurs, including express preemption, where Congress explicitly articulates the extent of preemption over state law.

Field preemption occurs when state law seeks to regulate an area that federal law, as intended by Congress, is meant to exclusively govern. Conflict preemption arises when compliance with both state and federal laws is impossible, or when state laws obstruct federal objectives. In interpreting an express preemption clause, courts must determine the specifically pre-empted domain based on statutory language, as established in Medtronic, Inc. v. Lohr. The analysis starts with the text but is informed by two key principles: a presumption against federal legislation overriding state police powers and a focus on Congress's purpose. This purpose informs the interpretation of the statutory framework and the overall structure of the law. 

Regarding the CAN-SPAM Act, the preemption clause states it overrides any state laws regulating commercial email, with exceptions for laws prohibiting falsity or deception in such communications. Additionally, it does not preempt state laws not specific to electronic mail, such as those related to trespass, contract, or tort, nor laws addressing fraud or computer crime. The express intent of Congress indicates a broad preemption of state regulation with narrow exceptions. The only federal circuit court to address the CAN-SPAM Act’s preemption of state law claims is the Fourth Circuit in Omega World Travel, Inc. v. Mummagraphics, Inc.

Mummagraphics alleged violations of the CAN-SPAM Act and Oklahoma law due to inaccuracies in email communications. The Fourth Circuit examined the CAN-SPAM Act's preemption provision and determined that Congress did not intend for states to enact laws penalizing "mere error" or "insignificant inaccuracies." The court emphasized that a materiality component aligns with the federal legislation's overarching policy, arguing that a contrary interpretation would undermine the balance Congress intended and create a significant loophole in the preemption clause. Consequently, the court ruled that the challenged emails could not be subject to Oklahoma statutes, as imposing liability for immaterial errors would contradict the federal Act's preemption framework and the understanding of congressional intent.

The court affirmed that the CAN-SPAM Act's preemption clause allows for exceptions only for state laws targeting "falsity or deception" in commercial emails. Since these terms are not defined in the statute, they should be interpreted by their ordinary meanings. The interpretation acknowledges that "deception" implies more than mere inaccuracies, whereas "falsity" could mean either erroneous information or intentional deceit. This ambiguity aligns with the Fourth Circuit's application of the noscitur a sociis principle, suggesting that "falsity," when read alongside "deception," pertains to wrongful conduct typically associated with tort claims. The interpretation is further supported by the statutory text, which suggests that laws addressing fraud are not preempted by the CAN-SPAM Act.

State laws imposing specific labeling or formatting requirements on commercial email are preempted by federal law under the CAN-SPAM Act, while laws that prohibit fraudulent or deceptive headers, subject lines, or content are not preempted. Congressional intent emphasizes that states should not create liability for minor inaccuracies, and the CAN-SPAM Act only addresses deceptive practices in email marketing. The Act aims to establish a uniform national standard for regulating commercial email to address the ineffectiveness of varied state laws, which complicate compliance for businesses operating across jurisdictions. The lack of geographic specificity in email addresses further complicates adherence to state laws. Consequently, the CAN-SPAM Act was enacted to prevent legitimate businesses from having to navigate a patchwork of state regulations, ensuring that states do not impose additional burdens that could undermine the federal standard. This reading aligns with the overall legislative purpose of the Act.

The CAN-SPAM Act sets a national standard for commercial email but allows states to apply traditional tort theories, such as fraud or deception, to email communications. This flexibility is designed to maintain a regulatory balance that prevents legitimate businesses from facing inconsistent state regulations. Gordon's claim under the Washington Commercial Email Marketing Act (CEMA) is undermined by the CAN-SPAM Act’s preemption clause. Although Gordon acknowledges he was not misled, he argues that the email headers fail to clearly identify Virtumundo as the sender, thus misrepresenting the sender's identity. The "from lines" of the emails include a "from name" field and a domain name, which Gordon contests as deceptive. However, there is no inherent deception in using fanciful domain names, and the domains are properly registered to Virtumundo. Gordon concedes that a WHOIS search identifies Virtumundo as the registrant and provides identifying information. He claims that additional steps to determine the sender's identity violate CEMA, but his allegations do not constitute "falsity or deception" under the CAN-SPAM Act's preemption clause. There is no evidence that the headers were altered to mislead recipients or that Virtumundo intended to obscure its identity. Gordon's complaint pertains to a lack of comprehensive information, which does not align with traditional tort theories and falls outside the exceptions in the CAN-SPAM Act. He argues that the sender's name or the entity hiring the sender should appear in the "from lines," but the CAN-SPAM Act does not impose such a requirement, and any state law requirement would be preempted.

State law mandating specific labels or content in commercial emails is preempted by federal law. Gordon's claims related to the omission of Vonage's name in emails are preempted as well, as they pertain only to non-deceptive statements and labeling requirements. Therefore, even if his arguments under the Commercial Email Marketing Act (CEMA) had merit, they would not withstand federal preemption, leading to the proper dismissal of his CEMA claims.

Gordon also appeals the dismissal of his claim under the Washington Consumer Protection Act (CPA), which prohibits unfair or deceptive acts in trade. To prove a CPA violation, a plaintiff must establish five elements, including an unfair act that impacts public interest and causes injury linked to that act. Violating CEMA is a per se violation of the CPA, and since Gordon’s CEMA claims were dismissed, his CPA claims based on those violations also fail. Moreover, Gordon did not demonstrate any independent CPA violations, as he failed to identify misleading acts or practices that could deceive a substantial portion of the public. 

Additionally, he did not show that he suffered actual harm due to Virtumundo's actions, which is necessary to establish causation under the CPA. Thus, summary judgment was deemed appropriate. His argument regarding a violation of his Seventh Amendment rights due to summary judgment is also rejected, as such proceedings do not infringe upon the right to a jury trial.

Gordon lacks statutory standing to pursue a private action under the CAN-SPAM Act due to his failure to establish that he is an Internet access service provider or that he suffered adverse effects from spam. His state law claims are also dismissed, as they are preempted by the CAN-SPAM Act and he has not shown a genuine issue of material fact. The court affirms the district court's summary judgment, with all parties bearing their own costs on appeal. Additionally, Circuit Judge Gould concurs, emphasizing that Gordon attempted to exploit the CAN-SPAM Act for personal financial gain rather than as a legitimate legal remedy. He highlights the historical context of common law, which has evolved to provide remedies for recognized injustices, and underscores the necessity of demonstrating proximate damages in both contract and tort claims.

Contract damages must arise either naturally or as a reasonable expectation of the breach. In personal injury cases, compensatory damages cover all proximate losses and future losses resulting from the tort. The common law's chancery jurisdiction developed to provide equitable remedies when common law damages were inadequate, as courts of equity address situations where legal remedies fall short. While common law offered remedies for serious harms, it did not support claims constructed to manufacture circumstances for damages. The rules for awarding damages aim to encourage individuals to mitigate losses and discourage passive acceptance of avoidable economic harm. This principle influenced Congress in enacting the CAN-SPAM Act, which limits claims to individuals or entities adversely affected by the conduct, excluding those who create conditions for harm intentionally to pursue litigation. The opinion emphasizes that only bona fide Internet Access Service (IAS) providers should have standing to sue under the Act, reinforcing that individuals like Gordon, who manipulate their status for the purpose of claiming damages, should be denied statutory standing. The legislative history supports this interpretation, indicating that claims should not be allowed for those who artificially position themselves as eligible plaintiffs. Thus, Gordon's suit is deemed inappropriate and should be dismissed.

Statutory law has recognized the standing of individuals who engage in testing for discrimination, such as housing testers who feign interest in properties to enforce fair housing laws, as established in Havens Realty Corp. v. Coleman. This practice is justified to enhance the enforcement of these laws, with Congress providing broad standing to "persons" without requiring a "bona fide" interest. Similarly, under the Americans with Disabilities Act (ADA), individuals can sue for lack of accessibility in public accommodations, even if they are primarily motivated by the desire to file lawsuits. The ADA allows standing to "any person" facing discrimination, without a strict requirement for demonstrable injury.

However, this broad standing cannot be extended to the CAN-SPAM Act, which restricts private rights of action to Internet Access Service (IAS) providers who have suffered actual adverse effects. The statutory language indicates that parties seeking to litigate under CAN-SPAM must meet specific requirements, unlike the more inclusive provisions found in housing and disability laws, thereby denying standing in cases like Gordon's. 

The excerpt also briefly explains that "spam," while not precisely defined, generally refers to unsolicited commercial emails and has cultural roots in a Monty Python sketch, symbolizing unwanted and repetitive behavior in digital communication.

The term "spam" originated in electronic messaging, specifically referring to mass advertisement distribution in newsgroup forums, with early usage traced back to Internet chat rooms and interactive fantasy games. In the context of the case, the term "Gordon" refers collectively to the plaintiffs, Gordon and Omni, where Omni is a non-employee entity managed solely by Gordon. Gordon admits to subscribing to mailing lists to gather information on potential defendants in preparation for lawsuits. He sought $10,257,000 in statutory damages for 7,890 allegedly unlawful emails in a denied motion for partial summary judgment. Following the district court's ruling, Gordon proceeded pro se after parting ways with his trial counsel, and Omni was dismissed from the appeal as it was improper for a corporation to be represented pro se. 

The CAN-SPAM Act defines "commercial electronic mail message" as emails primarily intended for commercial advertising, excluding transactional messages. It outlines "aggravated violations" related to spam practices, which are not relevant to this case. Statutory damages are calculated based on the number of violations, with the potential for increased damages if violations are deemed aggravated. The court rejected Virtumundo's argument that Gordon and Omni did not qualify as Internet access service (IAS) providers, citing Congress's acknowledgment of free Internet services in the CAN-SPAM Act discussion. The district court emphasized that CAN-SPAM private plaintiffs must demonstrate significant harm, a term the court did not specifically define, suggesting it pertains to something meaningful to IAS providers. An amicus brief from ASIS Internet Services contended that harm for standing under CAN-SPAM should be assessed as the cost of managing spam emails over IAS facilities.

The text critiques a legal interpretation that diverges from the statute's clear wording and its intent to restrict private rights of action, noting that no court has accepted this view. The provision in question, 7706(g)(1), allows for service providers to be implicated if they facilitated unlawful spam or harvested emails unlawfully. A significant distinction is made between the terms "could" and "would," indicating that mere exposure to spam does not establish standing without some qualifying harm. The document highlights conflicting interpretations among district courts regarding whether a plaintiff must demonstrate that a defendant's specific emails caused the alleged harm. In a referenced case, the district court found a lack of "adverse effect" due to the absence of demonstrated financial hardship from the spam emails received, leading subsequent courts to impose a direct causation requirement for establishing standing. Although there is evidence that spam incurs costs on internet service providers (ISPs), no direct evidence links the emails in question to any adverse effects. Concerns are raised about the practicality of requiring direct causation, as this may shield some wrongdoers from accountability. The text concludes by noting the need to reserve a definitive ruling on this interpretation for a future case where the issue can be fully addressed. Additionally, it discusses the complexities of distinguishing personal legal standing from that of an entity, highlighting corporate law principles that prevent shareholders from pursuing individual claims for corporate injuries.

Omni's dismissal from the appeal has weakened Gordon's claims, which he has pursued pro se in multiple state and federal lawsuits. The district court highlighted that in 2006 and 2007, Omni was involved in ten other lawsuits in the Western District of Washington. Gordon's interpretation of the law is subjective and diverges from established legal standards. Under the Commercial Electronic Mail Act (CEMA), damages for violations are greater than those under the CAN-SPAM Act, allowing recipients of commercial emails to recover $500 per violation and interactive computer services to recover $1,000. The definition of "interactive computer service" encompasses entities that provide internet access. However, state court interpretations suggest a narrow application of CEMA, limiting it to deceptive unsolicited commercial emails directed at Washington residents or sent from within the state. Relevant case law indicates that CEMA is aimed at deceptive advertising, aligning with Washington's consumer protection laws. Additionally, an Oklahoma statute defines prohibited email practices based on the sender's knowledge of misrepresentation. Lastly, the district court's summary judgment incorrectly identified Mummagraphics as the plaintiff; it was actually a defendant in the case, making counterclaims against Omega World Travel for violations of the CAN-SPAM Act and Oklahoma law.

Reliance on Omega is confined to the Fourth Circuit's interpretation of the CAN-SPAM Act’s preemption clause, with no judgment made on the appropriateness of summary judgment in that case. The State contends that the goals of the CAN-SPAM Act do not cover illegitimate commercial practices, raising the issue of whether the exception language in § 7707(b) allows states to restrict non-deceptive email activities. WHOIS, a publicly accessible database, provides registrant information for domains, and is relevant to the CAN-SPAM Act. The State opposes preemption by citing Beyond Systems, Inc. v. Keynetics, Inc., where the court found that the CAN-SPAM Act did not preempt Maryland's Commercial Electronic Mail Act (MCEMA). The State argues for a similar outcome for Washington's CEMA, but the court declines, deeming Beyond Systems non-persuasive due to its flawed preemption analysis. It asserts that the Maryland court misunderstood the legislative intent of the CAN-SPAM Act and misapplied the preemption doctrine. The CAN-SPAM Act does not preempt consumer protection act (CPA) claims, as its preemption clause specifically exempts state laws not related to commercial email. Washington's consumer protection statute prohibits conspiracies to send misleading commercial emails, including using a third party's domain without permission or providing false information in the subject line.

Judge Cardozo's opinion in *MacPherson v. Buick Motor Co.*, 217 N.Y. 382, 111 N.E. 1050 (1916), significantly dismantled the privity barrier, allowing individuals to claim damages for a manufacturer's negligence regardless of a direct contractual relationship. The document further explores the relationship between statutory law and common law, indicating that distinctions often fade upon closer examination. Historical references highlight that English common law was partially derived from ancient statutory laws, which shaped customs and usages. The U.S. Supreme Court has established that Congress is presumed to legislate with an understanding of existing common law principles, as seen in *Astoria Federal Sav. and Loan Ass'n v. Solimino*, 501 U.S. 104 (1991). Additionally, the excerpt discusses state disability claims under California's Unruh Civil Rights Act, emphasizing its broad standing provisions. Violators are liable to "any person denied the rights" under the Act, and proof of actual damages is not required to recover statutory minimum damages, as supported by *Botosan v. Paul McNally Realty*, 216 F.3d 827 (9th Cir. 2000).