Gordon v. Virtumundo Inc et al

Filing 98

MOTION for Summary Judgment by Defendants Virtumundo Inc, Adknowledge Inc, Scott Lynn. Noting Date 2/16/2007.Oral Argument Requested. (Attachments: # 1 Proposed Order)(Newman, Derek) Modified duplicative text on 1/23/2007 (ECS, ).

Gordon v. Virtumundo Inc et al

Doc. 98

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. VIRTUMUNDO, INC., a Delaware corporation d/b/a ADNOWLEDGEMAIL.COM; ADKNOWLEDGE, INC., a Delaware corporation, d/b/a ADKNOWLEDGEMAIL.COM; SCOTT LYNN, an individual; and JOHN DOES, 1-X, Defendants. JAMES S. GORDON, Jr., a married individual, d/b/a `GORDONWORKS.COM'; OMNI INNOVATIONS, LLC., a Washington limited liability company, Plaintiffs,

The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE NO. CV06-0204JCC DEFENDANTS' MOTION FOR SUMMARY JUDGMENT NOTE ON MOTION CALENDAR: February 16, 2007 ORAL ARGUMENT REQUESTED

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. III. F. G. I. II.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. B. C. D. E. Plaintiffs James Gordon & Omni Innovations are one and the same . . . . . . . . . . . 2 An Internet access service provides actual Internet services and does not simply administer others' services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Plaintiffs are not an Internet access service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Plaintiffs did not suffer an adverse impact from the email at issue . . . . . . . . . . . . 6 The email Plaintiffs produced identify Defendants in the header and body of the messages and contain opt-out links . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. 2. All email attributable to Defendants contained Defendants' publically registered domain names . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The email attributable to Defendants have accurate physical addresses, unsubscribe links, and "from" lines . . . . . . . . . . . . . . . . . . . . . 9

Plaintiffs admit they have no facts that indicate Scott Lynn participated in the statutory violations they allege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Procedural history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. Plaintiffs cannot assert claims under CAN-SPAM because Plaintiffs are not providers of Internet access service "adversely affected" . . . . . . . . . . . . . . . . . . 12 1. 2. Plaintiffs do not provide an Internet access service . . . . . . . . . . . . . . . . 12 Plaintiffs have not been adversely affected by a violation of the statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Plaintiffs cannot establish that Defendants volated CAN-SPAM . . . . . . . . . . . . 16 1. Defendants did not initiate the transmission of commercial electronic mail with false or misleading headers . . . . . . . . . . . . . . . . . . . 16 a. b. c. CAN-SPAM requires consideration of the header as a whole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Defendants qualify for the safe harbor because Defendants' "from" lines identify the sender of the message . . . . . . . . . . . . . 20 The First Amended Complaint does not include any CANSPAM claims alleging false or misleading headers . . . . . . . . . . . 20
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - i

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2. 3. 4. 5.

There is no "pattern or practice" of email with materially misleading subject lines, or without notice of advertisement . . . . . . . . . . . . . . . . . . 20 Defendants did not initiate commercial email without an unsubscribe mechanism and notice of the opportunity to opt out . . . . . . 23 Defendants did not initiate commercial email to a recipient who had previously opted out using a mechanism provided by the sender . . . . . . 23 Defendants did not initiate commercial email lacking a valid physical postal address of the sender . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Plaintiffs cannot establish that Defendants violated CEMA . . . . . . . . . . . . . . . . 24 1. 2. 3. 4. 5. CAN-SPAM preempts Plaintiffs' state law theories . . . . . . . . . . . . . . . . 24 Plaintiffs cannot establish that Defendants falsified or obfuscated any transmission path . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Plaintiffs cannot establish that defendants used any third party domain name without permission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Email harvested from inactive mailboxes retained by Gordon for the sole purpose of collecting spam is not actionable . . . . . . . . . . . . . . . . . . 27 Plaintiffs cannot establish that Defendants used false or misleading subject lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

There is no evidence to support any claim against Scott Lynn, and summary judgment should be entered in his favor . . . . . . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - ii

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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I.

INTRODUCTION Plaintiffs James S. Gordon ("Gordon") and Omni Innovations, LLC ("Omni")

("Plaintiffs")1 allege that defendants Virtumundo, Inc. ("Virtumundo") and Adknowledge, Inc. ("Adknowledge") (together, Adknowledge and Virtumundo alone2 are referred to herein as "Defendants") transmitted thousands of commercial email messages in violation of the federal CAN-SPAM Act of 2003, 15 U.S.C. § 7701 et seq. ("CAN-SPAM") and the Washington Commercial Electronic Mail Act (RCW 19.190) ("CEMA"). As a threshold matter, Plaintiffs cannot establish they have standing to bring claims under CAN-SPAM. The federal statute provides for a limited private cause of action available only to a bona fide Internet access service that is adversely affected by a statutory violation. Plaintiffs are neither an Internet access service nor were they adversely affected by the alleged statutory violations. Assuming arguendo Plaintiffs had standing, Plaintiffs cannot identify any email at issue in violation of a statutory requirement. Instead, Plaintiffs repeat the same broad, conclusory assertions made in their Complaint. Under oath, Plaintiffs cannot recall any email Defendants sent that violate CAN-SPAM or CEMA in any way other than being generally "misleading" in their headers or subject lines. Plaintiffs admit, however, that they were not actually misled by any of Defendants' email, nor did they have any difficulty locating Defendants in order to bring their action. This is important because a violation of the statutes only occurs if there is a "material" misrepresentation to a consumer "acting reasonably under the circumstances". Plaintiffs' naked allegations of trivial and hyper-technical violations do not rise to the level of a private party cause of action.

As set forth in section IIA hereof, Plaintiff Gordon frequently cannot distinguish between himself and Omni. Defendants therefore use "Plaintiffs" to refer to Gordon and/or Omni, as appropriate from the context. When discussing Plaintiffs' knowledge, however, "Plaintiffs" is always intended collectively, as Gordon's knowledge is coextensive with that of Omni and vice-versa. Defendants do not intend for their use of the term "Plaintiffs" to waive any right, defense or assertion of fact that may apply to one plaintiff only, and such rights, defenses and assertions are expressly reserved. As discussed below, Plaintiffs have no basis to assert that Defendant Scott Lynn assisted, procured, or initiated any email at issue in this suit. Plaintiffs do not allege that Mr. Lynn engaged in any conduct outside the scope of his employment, nor is there any evidence that would militate in favor of piercing the corporate veil. Accordingly, he is excluded from the definition of "Defendants" unless the context clearly indicates otherwise.
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DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 1

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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Plaintiffs' failure to support their allegations renders this case ripe for summary judgment. Plaintiffs' evidence is simply insufficient to establish Plaintiffs' claims against Defendants. Indeed, the facts of this case are almost identical to the facts upon which appellate courts have in the past few months affirmed dismissing CAN-SPAM and CEMA claims3. Like those recent cases, the Court should grant this motion and judgment should be entered in favor of Defendants and Mr. Lynn. II. FACTS A. Plaintiffs James Gordon & Omni Innovations are one and the same.

Plaintiff Gordon is an individual who claims to have done business as an interactive computer service known as "gordonworks.com." First Amended Complaint (Dkt. No. 15) ("FAC") ¶ 1.1. Gordon is also the managing member of plaintiff Omni. (Declaration of James S. Gordon, Jr. In Response and Opposition to Defendants' Motion to Compel Discovery Re Lynn Interrogatories. (Dkt. No. 76) ("Gordon Decl. 76") ¶ 1. Gordon describes himself as being in the "spam business," which is "notifying spammers that they're violating the law . . . and . . . we file lawsuits." (Gordon Dep. at 118:2-6, which is attached as Exhibit A to the Declaration of Derek A. Newman filed concurrently herewith.) Plaintiffs receive no income other than from settling CAN-SPAM lawsuits and, before the "spam" business, Gordon's sole source of income was state unemployment benefits. (See Gordon Dep. at 32:9 - 33:19.) Although Omni designated Gordon to testify on its behalf, Gordon stated repeatedly that he is unable to distinguish between himself individually and himself in his capacity as manager of Omni. (Gordon Dep. at 404:21) ("I can't distinguish between Omni and Jim Gordon at this point in time in terms of the reasonable inquiry and information known and readily attainable.") Gordon signed Responses to Interrogatories to himself personally "on behalf of Omni Innovations, LLC."

See e.g., Benson v. Or. Processing Serv., 2007 Wash. App. LEXIS 31 (Wash. Ct. App. 2007) (affirming trial court dismissal of CEMA claims because defendants had included their domain names in email headers and physical address in email messages, even though they sent messages from an inoperable email address); Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F. 3d 348 (4th Cir. 2006) (affirming district court dismissal of CAN-SPAM claims notwithstanding some technical statutory violations because "[t]he CAN-SPAM Act prohibits some material misstatements and imposes opt-out requirements, but it does not make every error or opt-out request into grounds for a lawsuit" and "does not impose liability at the mere drop of a hat.")

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DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 2

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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(Gordon's Answers to Adknowledge's Interrogatories, Set One, attached as Exhibit F to Linke Decl.) Similarly, "Plaintiff Gordon answer[ed]" interrogatories propounded upon Omni. (Omni's Answers to Virtumundo's Interrogatories, Set One, attached as Exhibit G to Linke Decl.) Gordon, Omni and "gordonworks" all share an address and telephone number. (Gordon Dep. 143:20-144:6.) B. An Internet access service provides actual Internet services and does not simply administer others' services.

The Internet is an interconnected network of computer networks. (Krawetz Decl. ¶ 4.) Each computer connected to the Internet has a network address, commonly represented by a unique 32 bit number called an Internet protocol address (an "IP address"). Id. at ¶ 5. The IP address is usually represented by four decimal numbers (octets) separated by periods. Id. at ¶ 6. The IP address system is a part of a communication architecture standard known as TCP/IP (i.e., Transmission Control Protocol (TCP) and Internet Protocol (IP)) first developed in 1969. Id. at ¶ 7. The architecture of today's Internet is based on the TCP/IP concept. Id. at ¶ 8. Communications over the Internet are made possible in large part because of network development based on the TCP/IP communication architecture. Id. at ¶ 9. The "domain name system" (or "DNS") was developed to convert between machine-readable IP addresses and user-friendly alphanumeric host names (hostnames). Id. at ¶ 10. Sets of related computers are grouped by domain names, such as "example.com". Related hostnames include "host1.example.com" and "www.example.com". The use of hostnames dates to 1971 and DNS was conceived in 1981. Id. at ¶ 11. The domain name system operates through a series of databases that "resolve" or link domain names with the IP addresses with which they are associated. Id. at ¶ 12. In order to connect to the Internet, a user's computer must have an IP address. Consumers' computers are typically provisioned with IP addresses by their Internet service provider, or "ISP". Id. at ¶ 13. The term "ISP" generally refers to organizations or entities that provide Internet connectivity through means such as dial-up, cable modem, and digital subscriber line ("DSL") connections, although it also encompasses companies that provide server hosting and other DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 3
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connectivity services. Id. at ¶ 14. A server is a computer (in this context, connected to the Internet) that provides services to other computers or applications. A server may be dedicated to this role, or it may be used simultaneously for other purposes, such as a desktop workstation. Services provided over the Internet (network services), such as Web sites and email, generally consist of software running on server computers . Id. at ¶ 15. Gordon does not have access to the "root account" on the server he leases. (Gordon Dep. 112:14-25.) The "root account" is the administrator on the type of server he leases. (See Initial Expert Report of Dr. Neal Krawetz, attached to Krawetz Decl. at Exhibit 2 (hereinafter "Krawetz Rpt." at 17.)4 Without root access, the user cannot be the system administrator. (Root for Unix is similar to the Microsoft Windows "Administrator" account.) Id. However, some system services may be managed by user accounts (non-root). Id. For example, GoDaddy provides an administrative tool called Plesk (http://www.swsoft.com/plesk/) for managing DNS information. Id. Gordon states that he uses Plesk (Gordon Dep. 109:9-20) to administer the domains that he has registered or manages. In particular, GoDaddy only permits the management of domains registered through GoDaddy (http://help.godaddy.com/article.php?article_id=663&topic_id=163&&); this excludes third-party hosting. Id. Although Gordon may administrate some domains, he depends upon GoDaddy for Internet access and hosting of the domains he registered. Id. C. Plaintiffs are not an Internet access service.

Plaintiffs claim they are an Internet access service because they 1) operate the Web site located at <<www.gordonworks.com>>, and 2) provided e-mail accounts to seven individuals. (Omni Response to Interrogatory No. 22, Gordon Response to Interrogatory 22, attached as Exhibits "I" and "K" to Linke Decl.) These accounts were provided free of charge "subject to data collection" by Plaintiff Gordon. Id. Plaintiffs are not compensated by their "clients." (Gordon Dep. 118:19-119:25.) In truth, Gordon's "clients" relinquished their email accounts in 2003, and

Defendants' expert witness, Dr. Neal Krawtz, is a computer security researcher with a Ph.D. in Computer Science from Texas A&M University (1998). Among his many qualifications, he is the author of the college textbook Introduction to Network Security, Charles River Media, 2006 (ISBN 1-58450-464-1).

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DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 4

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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since that time Gordon has maintained these accounts only to collect unsolicited email in them. (Gordon Dep. 472:14; 197:19-23.) Omni first had customers in May, 2005. (Omni's Answer to Virtumundo's Interrogatory No. 22) (Linke Decl. Ex. I.) Plaintiffs have not contended that either of them had customers between 2003 and May, 2005. There is no evidence that Plaintiffs' "clients" actually used their email accounts for any other purpose other than fishing for emails to support Plaintiffs' spam business. Even after founding their claims upon providing email services, Gordon recently testified "I don't provide e-mail accounts." (Gordon Dep at 474:10-11). Now, their claim of providing an Internet access service is for "hosting domains" and putting up a Web site. (Gordon Dep. 476:1218.) However, Plaintiffs do not operate their own DNS server. (Gordon Dep. 113:15-24) ("Q: You don't operate your own DNS server, correct?" "A: My understanding is no, I don't. But who knows? That's my understanding."). Defendants' expert confirmed that Plaintiffs cannot host domain names because they do not operate a DNS server. (Krawetz Rpt. at 17.) The expert also verified that GoDaddy, a third party, hosts the domain names for Plaintiffs' "clients". Id. Plaintiffs lease the server upon which they claim to provide their services from GoDaddy. (Gordon Dep. 108:22-109:7.) GoDaddy provides Plaintiffs with a technical assistance program whereby GoDaddy does the "behind the scenes" work on the server. (Gordon Dep. 109:2.) Plaintiffs' $103 per month service from GoDaddy includes the Plesk domain control panel, a consumer oriented interface that enables Gordon to administer up to 30 domain names using GoDaddy's name servers. (See Krawetz Rpt.) Plaintiffs do not know what kind of computer their server is. (Gordon Dep. 111:17.) GoDaddy, not Plaintiffs, chose the operating system used on their server. (Gordon Dep. 111:25-112:4.) Plaintiffs do not have root access to their server. (Gordon Dep. 112:10.) Plaintiffs' account with GoDaddy includes 500 gigabytes of data transfer per month. (Gordon Dep. 110:16-20.) Plaintiffs "haven't come close" to ever using 500 gigabytes of data transfer. Id. Plaintiffs do not know the means by which their "clients" could access the Internet and retrieve their e-mail. (Gordon Dep. 212:13-213:12.) GoDaddy, Plaintiffs' Web hosting company, rather than Plaintiffs themselves, provides their "clients" the ability to log on to an DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 5
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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Internet website and access mail. (Gordon Dep. 213:25-214:2.) The extent of Plaintiffs' involvement in the free e-mail accounts they claim to have "provided" is to assign user names and passwords on the consumer oriented user control panel GoDaddy provides. (Gordon Dep. 214:14-19.) Plaintiffs themselves cannot articulate which services they provide and which are provided by GoDaddy. (Gordon Dep. 473:13 ("Q: Do you know the distinction between what Omni provides and what Godaddy provides? A: A lot of it's blurred.").) In light of these facts, Plaintiffs do not provide Internet access services. (Krawetz Rpt. at 17, 23.) D. Plaintiffs did not suffer an adverse impact from the email at issue.

Plaintiffs are not seeking recovery of any actual damages resulting from Defendants' purported violations. (Gordon Dep. 319:15-320:3.) Plaintiffs refused to answer whether they have experienced any actual damages as a result of any violation of CAN-SPAM or CEMA. Far from suffering any adverse impact, Mr. Gordon was asked: "[t]he receipt of spam benefits you, correct?" Id. at 221:17. After several objections from his lawyer, Mr. Gordon answered, "[y]es insofar as research and yes insofar as there have been settlement agreements". Id. at 222:17. Plaintiffs actually solicit spam (Gordon Decl. 76 at Ex. D, Dkt. No. 76-5) and willingly spend hours sorting email in connection with their "spam business" rather than simply leaving it unreviewed in the spam filters that intercept it. (See Gordon Dep. 220:21-24.) Plaintiffs testified they had to confer with counsel in order to know whether they were confused or misled by any "from" line in Defendants' email. (Gordon Dep. 381-394.) Plaintiffs finally acknowledged they have not identified in this lawsuit any "from" lines that misled them and, in deposition, could not think of any that did. Id. at 394:18-20. Plaintiffs further acknowledged that they would not have gained any additional information had Defendants used their corporate name in the "from name" field of an email as opposed to a domain name. (Gordon Dep. 472:10-13.) E. The email Plaintiffs produced identify Defendants in the header and body of the messages and contain opt-out links.

Plaintiffs produced three successive iterations of the supposedly "authoritative" files containing the email allegedly underlying their claims. (See Defendants' Motion to Compel DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 6
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Segregation of Emails (Dkt. No. 71).) In the production to date, Plaintiffs produced, among other things, five "folders" of email messages5. Under the supervision of Derek Linke, Esq., Defendants engaged a team of attorneys who undertook a thorough analysis of every one of the more than 17,000 emails contained in VM1, VM2, and VO1. The review entailed analysis of each element of each email's header and content for compliance with CAN-SPAM and CEMA. In connection with this review. Defendants created a log (the "Linke Log") detailing this information for each email. As a review of the Linke Log reveals: · · VO1 contains six email messages not from Virtumundo or Adknowledge. (Krawetz Rpt. at 14.) VM1 contains 15 emails not from Virtumundo or Adknowledge, including one email from Plaintiff Gordon and one email using a forged Virtumundo email address in the Reply-To field. Id. VM2 contains 17 emails not from Virtumundo or Adknowledge. Id. With the exception of those emails identified above as not sent by Virtumundo or Adknowledge, the emails in VM1, VM2, and VO1 originate from email addresses at the following domains managed by Virtumundo and/or Adknowledge: <<adknow-net.com>> (1,198 emails), <<virtumundo.com>> (25 emails), <<vm-mail.com>> (6,987 emails), <<vmadmin.com>> (5,643 emails), <<vmamdin.com (8 emails)>>, <<vmlocal.com>> (3,165 emails), and <<vtarget.com>> (100 emails). (Krawetz Rpt. at 15.) Of the email in VM1 and VM2, some 6000 (3000 in each archive) predate January 1, 2004, the effective date of CAN-SPAM. (Linke Decl. ¶ 16.) Nearly 1,000 of the emails have had their content stripped out by Plaintiff's spam processing program, and therefore cannot be evaluated for compliance with regulations that pertain to content. (Linke Decl. ¶ 17; Krawetz Rpt. at 10-11). Other email have had images removed by Plaintiffs' spam processing program, including images relevant to Defendants' CAN-SPAM compliance (such as images containing a postal address). Id.

· ·

· ·

Plaintiffs provided the emails alleged against Adknowledge in an email archive named adknowledgemailcom.mbx, which contains 1,695 email messages and which was also reviewed

On or about February 24, 2006, Plaintiffs produced a file named "virtumundo.mbx" (hereinafter "VM1") which contained 5,101 email messages. On or about July 25, 2006 Plaintiffs produced another file named "virtumundo.mbx" ("VM2") which contained 5,047 messages, as well as a file named "Virtumundo-Omni.mbx" ("VO1") which contained 7,016 emails. On or about November 29, 2006, Plaintiffs produced a third iteration of "virtumundo.mbx" (hereinafter "VM3") containing 8,124 emails, among which are apparently intermingled those from VM1 and VM2. Plaintiffs also produced a second iteration of "Virtumundo-Omni.mbx" ("VO2") which contains 11,201 emails, among which are apparently intermingled some or all of those contained in VO1.

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DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 7

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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and logged. (Linke Decl. ¶ 2.) There are 14 email messages not from Adknowledge. These appear to come from a different company: Digital Connexxions (aka WKI Data). (Krawetz Rpt. at 1314.) Emails dated 2-June-2005 to 11-June-2005 and 15-December-2005 to 16-December-2005 were processed by Plaintiffs' program, SpamAssassin, which removed the email's content. (Krawetz Rpt. at 9.) 1. All email attributable to Defendants contained Defendants' publically registered domain names.

The WHOIS database is a publically available source of the registrant contact information for any .com domain name. (Gordon Dep. at 142:21-23) ("Q: What is a Whois record?" "A: It provides information to the general public as to who owns a particular domain.") The registrant provides its own contact information in the WHOIS database. Id. at 143:7. At all times relevant to this action, the domain name <<adknowledgemail.com>> has been registered to Adknowledge, and accurate contact information has been publicly available through the WHOIS database. With the exception of the eight emails from <<vmamdin.com>>, which appear to be the result of a typographical error from <<vmadmin.com>>, each of the domain names in the VM1, VM2, and VO1 folders was registered to Virtumundo or Adknowledge. (Krawetz Rpt. at 15; Gordon Dep. at 312:23-313:14.) A WHOIS query on any of these domain names returns information including Virtumundo's and/or Adknowledge's name, correct physical address, and telephone number. (Krawetz Rpt. at 14; Gordon Dep. at 144:25-145:2). Moreover, a reverse IP lookup in the WHOIS database accurately identifies Virtumundo and/or Adknowledge. (Krawetz Decl. ¶ 22.) With the exception of the 14 email messages not from Adknowledge, all of the email messages in adknowledge.mbx originate from email addresses at the domains <<adknowledgemail.com>> (1,673 emails) or <<my-freemail.com>> (8 emails). (Krawetz Rpt. at 13.) The <<my-freemail.com>> domain name is registered to Adknowledge's customer, Venture Direct. Id. at 15. The messages using that domain name were sent by Venture Direct through Adknowledge's network pursuant to agreement. (Geroe Decl. ¶ 2.)

DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 8

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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2.

The email attributable to Defendants have accurate physical addresses, unsubscribe links, and "from" lines.

Except for the email messages that Plaintiffs stripped of content, none of the email lacked a postal address or an "unsubscribe" link or other opt-out mechanism; and each email was identified or is identifiable as an advertisement. (Gordon Dep. at 418:11-13; Gordon Dep. at 416:11-17). All of the email attributed to Defendants (other than those from which Plaintiffs' "SpamAssasin" program deleted the content)6 clearly identify the sender in the email's content. (Krawetz Rpt. at 15-6.) Reasonable minds cannot disagree that the overwhelming majority of Defendants' subject lines when viewed in context (i.e., together with the associated "from" name) are not materially false or misleading. (See generally, Linke Log.) F. Plaintiffs admit they have no facts that indicate Scott Lynn participated in the statutory violations they allege.

Scott Lynn is Chief Executive Officer of Defendant Adknowledge, Inc. He is not an officer of Virtumundo, Inc. Other than a general allegation that Lynn "had knowledge of, and participated in the unlawful acts of the corporate Defendants", (FAC at 2:18), there are no allegations supporting liability against Lynn. Indeed, Plaintiffs admit that they have no idea why Mr. Lynn is named as a defendant in the action, except that their lawyer thought it advisable: Q. You're suing Scott Lynn in this lawsuit, correct? A. I believe he's been named. Q. Why? A. That was a decision my attorneys and I came up with. Q. What basis do you have to file a lawsuit against Scott Lynn? A. Again, that was the decision that my attorneys and I came up with. Q. What basis do you have to file a lawsuit against Scott Lynn? A. I guess you would have to ask Mr. Siegel. I don't understand the legal -(Gordon Dep. at 151:2-13.) Plaintiffs subsequently acknowledge that they have no basis for

As described in Dr. Krawetz' report, Plaintiffs' "SpamAssasin" software apparently deleted content from certain of the emails provided by Plaintiffs. (Krawetz Rpt. at 15.)

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DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 9

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

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believing that Mr. Lynn had any personal involvement in the conduct underlying their lawsuit: Q. You allege that Adknowledge and Virtumundo sent you e-mail, correct? A. I do. Q. Do you believe that there was a human being who was responsible for initiating those e-mails? A. There was. ... Q. Do you have any basis to believe Scott Lynn in particular initiated those e-mails? A. No. (Gordon Dep. at 156:1-7; Id. at 156:13-15.) Finally, Plaintiffs admit that their only theory of liability against Mr. Lynn relates to conduct he performed in his capacity as CEO: Q. Do you believe that Scott Lynn violated any laws with respect to you? A. I believe that he's responsible for his company. Q. What do you mean, he's responsible for his company? A. He's responsible -- if in fact I'm trying to unsubscribe and contact the company, contact the company's legal department and so forth and he ignores it, I think that he's been, I guess, negligent or somehow he hasn't been diligent in terms of his responsibility as a CEO. (Gordon Dep. 152:18-153:1.) G. Procedural history.

Plaintiffs commenced this action on February 9, 2006, alleging, inter alia, receipt of 6000 unsolicited emails. (Dkt. No. 1). Plaintiff filed a First Amended Complaint on April 4, 2006 alleging violations of the Federal CAN-SPAM Act of 2003 ("CAN-SPAM"), 15 U.S.C. §§ 7701­7711; the Washington Commercial Electronic Mail Act ("CEMA"), Wash. Rev. Code §§ 19.190.010­.110; the Washington "Prize Statute," Wash. Rev. Code §§ 19.170.010­.900; and the Washington Consumer Protection Act ("CPA"), Wash. Rev. Code §§ 19.86.010­.920. (Dkt. No. 15) (the "FAC"). On August 8, 2006, Defendants filed a Motion to Dismiss with a noting date of September 15, 2006 seeking dismissal of Plaintiffs' FAC (Motion to Dismiss 12:18-19) (Dkt. No. 30). On December 8, 2006, the Court granted Defendants' Motion to Dismiss Plaintiffs' claims under a DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 10
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portion of CEMA (i.e., RCW § 19.190.080), the Prize Statute, and all related CPA claims (Dkt. No. 51). Plaintiffs never filed an amended pleading. Accordingly, Defendants only move on the surviving claims and request that the Court rule the dismissed claims have been waived7 since Plaintiff failed to timely file a second amended complaint. III. ARGUMENT FED. R. CIV. P. 56(c) provides in relevant part: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

A defendant is entitled to a judgment as a matter of law if it can show the court that Plaintiffs' evidence is insufficient to establish an essential element of Plaintiffs' claim. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990). As explained in Chamberlan v. Ford Motor Co., 369 F.Supp.2d 1138, 1143 (N. D. Cal. 2005), Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that there is an absence of evidence to support the nonmoving party's case. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Chamberlan, 369 F.Supp.2d at 1143 (citing, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885 (1990); Bhan v. NME Hosp., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991)). The moving party bears the burden of informing the court of the basis for its motion,
If Plaintiffs have leave to file an amended complaint, then Defendants request leave to conduct discovery and file a motion for summary judgment on those claims.
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DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 11

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together with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. Once the moving party has met its burden, the party opposing the motion may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248. A. Plaintiffs cannot assert claims under CAN-SPAM because Plaintiffs are not providers of Internet access service "adversely affected".

In enacting the CAN-SPAM act,15 U.S.C.§ 7701 et seq., Congress expressly recognized that commercial email offers "unique opportunities for the development and growth of frictionless commerce." 15 U.S.C. § 7701(a)(1). Anti-spam and consumer groups urged Congress to ban all unsolicited commercial email, and to create a private right of action for liquidated damages8. Congress declined, and instead enacted a scheme 1) to create a nationwide standard for commercial email; 2) to prohibit senders of commercial electronic mail from misleading recipients as to the source or content of such mail; and 3) to ensure that recipients of commercial electronic mail have the right to decline additional email from a particular source. 15 U.S.C. § 7701(b). The Act does not create any private cause of action for individual recipients of unsolicited commercial email, even if those emails violate the requirements of the Act. Rather, the Act is enforceable only by the Federal Trade Commission and other specified federal agencies, by state Attorneys General; and by "provider(s) of Internet access service" who are "adversely affected by a violation of section 7704 (a)(1), (b), or (d) of [the Act], or a pattern or practice that violates paragraph (2), (3), (4), or (5) of section 7704 (a)." 15 U.S.C. § 7706(g)(1) (emphasis added). 1. Plaintiffs do not provide an Internet access service.

CAN-SPAM defers to section 231(e)(4) of title 47 for the definition of "Internet access service": "The term "Internet access service" means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part

See. e.g., Joint Open Letter on Spam Litigation, Coalition Against Unsolicited Commercial Email, http://www.cauce.org/legislation/openletter (Last accessed 1/17/07).

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DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 12

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of a package of services offered to consumers. Such term does not include telecommunications services." This language is ambiguous. If interpreted broadly, as Plaintiffs urge, anyone can qualify as an "Internet access service". For example, a person allowing family members use of a computer in the home connected to the Internet "enables users to access content, information, electronic mail . . . over the Internet." Likewise, a person who inserts a hyperlink on a blog post or in an email falls within the purview of a broad construction of the definition. Banks, since ATM machines enable users to access balances via an Internet connection, would be Internet access services with standing to sue for CAN-SPAM violations. This broad interpretation of "Internet access service" would encompass vast numbers of persons Congress did not intend to have standing. Such a standard would effectively create an unlimited private cause of action for CANSPAM violations. A narrow interpretation, in contrast, would exclude all but those who provide access to the Internet (e.g., dial-up, DSL, cable modem, or T1 service providers) and network based email services (such as Earthlink, Yahoo, MSN, and AOL). This interpretation has the advantage of meaningfully limiting standing under the Act. Additionally, a narrow reading of the definition of "Internet access service" is consistent with other definitions contained in the Omnibus bill, H.R.4328, from which this definition arose. See "Making omnibus consolidated and emergency appropriations for the fiscal year ending September 30, 1999, and for other purposes" which became Public Law No. 105-277. For example, the Internet Tax Freedom Act, also introduced in H.R. 4328, includes the following definition: [t]he term `Internet access services' means the provision of computer and communications services through which a customer using a computer and a modem or other communications device may obtain access to the Internet, but does not include telecommunications services provided by a common carrier. 47 U.S.C. § 151, note, section 1101(f)(2)(B). This definition of "Internet access service" is consistent with a narrow interpretation of 15 U.S.C. § 7702 (11). Unless we assume that Congress intended to define the term "Internet access service" in two wildly divergent ways in the

DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 13

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same bill, the narrow construction is the correct construction9. Had Congress intended to allow the broader standing under CAN-SPAM, it would have provided a private right of action. In this case, Gordon once claimed he operated a web site and "provided" email accounts to five people beginning in 2003. (Gordon Response to Virtumundo Interrogatory No. 22) (attached as Exhibit "K" to Linke Decl.) These accounts were provided free of charge "subject to data collection" by Plaintiff Gordon. Id.; (see also Gordon Dep. 119:21-120:2.) Plaintiffs contend that their minimal act of assigning user names and passwords to provide free email accounts for their family members and others renders them within the statutory definition of "Internet access service" that appears in CAN-SPAM. In light of the legislative history and context, such an interpretation seems wildly overbroad and wholly unfounded. Even assuming arguendo that free email accounts are an "Internet access service" within the meaning of the act, then, Plaintiffs' claim to standing is fatally undermined by the fact that Plaintiffs do not "provide" the services upon which they base their claim to standing. Plaintiffs' involvement with those accounts is limited to assigning user names and passwords using an interface provided by GoDaddy. (Gordon Dep. 214:14-19.) GoDaddy, rather than Plaintiffs themselves, provides Plaintiffs' "clients" the ability to log on to an Internet website and access mail, a fact which Gordon admits (Gordon Dep. 474:6-11) ("I don't provide email accounts."). In fact, Plaintiffs do not even know the means by which their "clients" can access the Web and get their e-mail. (Gordon Dep. 212:13-213:12.) Plaintiffs do not have root access to their server (Gordon Dep. 112:10), which means they cannot be the service provider for the server (Krawetz Rpt. at 17). Plaintiffs themselves cannot articulate which services they provide and which are provided by GoDaddy. (Gordon Dep. 473:13) ("Q: Do you know the distinction between what Omni provides and what GoDaddy provides? A: A lot of it's blurred. Q. Do you believe that anybody currently, other than yourself, uses an e-mail account that Omni or you personally provide? A: Okay. I'm still confused.") Gordon's clients relinquished their email

The "normal rule of statutory construction" provides that "identical words used in different parts of the same act are intended to have the same meaning." Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (internal quotations omitted).

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DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 14

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

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accounts in 2003, and since that time Gordon has maintained their accounts only in order to collect unsolicited email in them. (Gordon Dep. 472:14; 197:19-23.) Plaintiffs' services do not amount to "providing" an "Internet access service" for the purpose of CAN-SPAM. Congress restricted standing under CAN-SPAM to those who "provide" bona fide Internet access services, in the narrow sense. Those providers are most burdened by unsolicited commercial email and must scale their networks up to handle the bandwidth and processing requirements associated with the billions of emails they process daily. See Committee on Commerce, Science and Transportation on S. 877, S. REP. No. 102, 108th Cong., 1st Sess. 2-3 (2003) (the "Committee Report") (Exhibit N to Townsend Decl. in Support of Defendants' Motion for an Undertaking) (Dkt. No. 41-14) at 6-7. To allow persons similarly situated to Gordon to file suit would open the floodgates of litigation and deter, rather than enhance, commercial development of the Internet. Based on the undisputed evidence, Plaintiffs are not providers of Internet access service. (Krawetz Rpt. at 16) ("I see no evidence suggesting that Gordon is an Internet access service") and summary judgment should be entered in Defendants' favor on Plaintiffs' CAN-SPAM claims for lack of standing. 2. Plaintiffs have not been adversely affected by a violation of the statute.

A provider of Internet access service does not have standing to sue under CAN-SPAM unless it is "adversely affected by a violation of" CAN-SPAM. 15 U.S.C. § 7706(g)(1) (emphasis added). Plaintiffs have not experienced any adverse affect from a violation of the statute. Plaintiffs certainly have not had to expand their network to accomodate the unsolicited email they receive; they "haven't come close" to ever using the 500 gigabytes of data transfer provided with their GoDaddy account. (Gordon Dep. at 110:16-22.) They have not had to add technical personnel; GoDaddy provides Plaintiffs with a technical assistance program whereby GoDaddy does the "behind the scenes" work on the server. (Gordon Dep. 109:2.) After a protracted exchange, Gordon admitted he did not suffer actual damages. (See Gordon Dep. at 319-321) ("Q: you suffered actual damages; is that right? A: No, that's not true"; "Q: My question is whether you suffered actual damages. Did you? A: We've not enumerated any actual damages."; Q: Did you suffer any actual damages? A: I don't have anything to add."). DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 15
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Plaintiffs' inability to present evidence they were adversely affected by a violation of the statute demonstrates there is no genuine issue as to any material fact relating to that issue. Plaintiffs experienced no adverse affect. To the contrary, Gordon testifies that he considers unsolicited email to provide him with a benefit, both because he plans to base a doctoral dissertation on research relating to the email he receives, and because he uses it in his spam business as the basis for lawsuits. For these reasons, he solicits such email from his "clients" and maintains unused email mailboxes as "spam traps." (Gordon Decl. at 439:20-440:3.) Having admitted that he considers commercial email beneficial, and that he takes affirmative steps to receive and collect it, he cannot be heard to argue that has any adverse affect on any aspect of his business. Accordingly, Gordon does not have standing under CAN-SPAM and the Court should dismiss those claims. B. Plaintiffs cannot establish that Defendants volated CAN-SPAM. 1. Defendants did not initiate the transmission of commercial electronic mail with false or misleading headers. a. CAN-SPAM requires consideration of the header as a whole.

CAN-SPAM prohibits sending a commercial electronic mail message "that contains, or is accompanied by, header information that is materially false or materially misleading". 15 U.S.C. § 7704 (a)(1). The term "header information" means the source, destination, and routing information at t ached to an electronic mail message, including the originating domain name and originating electronic mail address, and any other information that appears in the line identifying, or purporting to identify, a person initiating the message. 15 U.S.C. § 7702(8). The statute uses "and" as opposed to "or" when discussing the elements of the header information. The plain language of section 7704(a)(1) thus pertains to the header as a whole, and not to any particular element of it. The statute then defines a practical standard for determining whether header information is materially false or materially misleading: For purposes of paragraph (1), the term "materially", when used with respect to false o r misleading header information, includes the alteration or concealment of header info rmat ion in a manner that would impair the ability of an Internet access service processing the message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to a person who DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 16
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initiated the electronic mail message or to investigate the alleged violation, or the ability of a recipient of the message to respond to a person who initiated the electronic message. The Committee Report makes clear the concern that led to this requirement: Compounding these problems is the fact that nearly all spam being sent today is considered untraceable back to its original source without extensive and costly investigation. Although many ISPs try to locate spammers in order to shut down their operations, spammers can rather easily disguise their whereabouts, quickly move to other ISPs, or set up websites at new domains in order to avoid being caught. Committee Report at 4. Plaintiffs urge the Court to review each element of a header (e.g., From-Name, FromAddress, Receive-Path, etc.) with mutually exclusive scrutiny. See. e.g., Plaintiffs' Motion for Partial Summary Judgment (Dkt. No. 53) (arguing that "From-Name" field must contain "actual name" of the sender, regardless of whether sender can be identified in other fields of the "From Line" or other portions of the header). CAN-SPAM does not support Plaintiffs' interpretation because the statute requires review of the header as a whole to determine whether there is information sufficient to identify and locate the original sender. The header is not materially false or misleading if the original initiator of the email message can be easily ascertained from the header or email itself. In Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F. 3d 348 (4th Cir. 2006), the defendant sent email messages with headers that included non-functional "from" addresses. The defendant also incorrectly identified the server from which its email originated. Id. Nonetheless, the district court ruled the email did not violate CAN-SPAM, and the Fourth Circuit affirmed: We agree with the district court that these inaccuracies do not make the headers "materially false or materially misleading." Id. § 7704(a)(1). The e-mails at issue were chock full of methods to "identify, locate, or respond to" the sender or to "investigate [an] alleged violation" of the CAN-SPAM Act. Id. § 7704(a)(6). Each message contained a link on which the recipient could click in order to be removed from future mailings, in addition to a separate link to Cruise.com's website. Each message prominently displayed a toll-free number to call, and each also listed a Florida mailing address and local phone number for the company. Several places in each header referred to the Cruise.com domain name, including one line listing Cruise.com as the sending organization. Omega, supra, 469 F. 3d at 357. Like the email under consideration in Omega, the email at issue in this case is "chock full of methods to `identify, locate or respond to' the sender". Defendants' DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 17
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messages all contain "a link on which the recipient could click in order to be removed from future mailings". Id. All messages contained either a separate link to Defendants' web site or to the web site of its advertiser. Most messages prominently displayed a number at which to call Defendants and/or the advertiser. Finally, all of the messages contained a mailing address for the Defendants and/or the advertiser. In addition, each of the emails at issue contain valid originating IP addresses permitting reverse IP lookups, and valid domain names permitting WHOIS lookups. (Krawetz Rpt. at 15.) The Fourth Circuit's conclusion is directly on point: If the alleged inaccuracies in a message containing so many valid identifiers could be described as "materially false or materially misleading," we find it hard to imagine an inaccuracy that would not qualify as "materially false or materially misleading." Congress' materiality requirement would be rendered all but meaningless by such an interpretation. Id. This argument applies with particular force to Plaintiffs' claim that Defendants' email contain "bad" header information, which Plaintiffs conclude is misleading. Gordon Dep. at 307:3. Plaintiffs' determination that such headings are "bad" is based entirely on analysis of the email by a software program called "EmailTrackerPro". (Declaration of James S. Gordon, Jr. In Response and Opposition to Defendants' Motion to Compel Discovery Re Lynn Interrogatories. (Dkt. No. 76) ¶ 3.) However, Plaintiffs do not (and cannot) present any evidence that EmailTrackerPro's criteria to evaluate email headers are consistent with any applicable legal requirements. Indeed, most of EmailTrackerPro's identified issues were out of Defendants' control, but instead are attributable to Plaintiffs and intermediary servers. (See Krawetz Rpt. at 20.) Gordon further alleges that Defendants' email headers reveal that Defendants violate "RFCs" and are therefore illegal. (Gordon Decl. 76 at ¶ 4.) "RFCs" are memoranda published by the Internet Society. Some, but not all, RFCs are subsequently adopted as "standards" by the Internet Engineering Task Force. RFCs, however, do not have the force of law, and failure to comply with RFCs does not render an email "illegal." (Krawetz Report at 6.) Most significantly, even if Plaintiffs' allegations are accepted as true, the supposedly "bad" headers do not prevent the easy identification of Defendants as the initiators of the messages. (See Gordon Dep. at 314:711) (Gordon cannot remember any email from Defendants that did not have a physical address or DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 18
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telephone number); Id. at 312:23-313:24 (cannot remember any email lacking a domain name registered to Adknowledge or Virtumundo; Id at 425:6-22 (cannot identify any email lacking email address in header). Plaintiffs' argument regarding Defendants' "From-Name" fields fails for the same reason: Defendants are easily identifiable from other information in the headers, and as such any failure of the "from" line to accurately identify the initiator of the email (which Defendants in any case deny) is not ultimately material. As determined by Defendants' expert: 1. None of the emails in the archives that are attributed to Adknowledge and Virtumundo contain intentionally false or misleading header information. There are only 8 emails that appear to represent a one-time typographical error rather than any intentional misrepresentation; these emails were all sent within the same minute to multiple recipient accounts. There are some emails in the archives that do contain false or misleading headers, but they were not sent by Adknowledge or Virtumundo and it is unclear why they were included in these archives. 2. None of the emails attributed to Adknowledge or Virtumundo contain information used to obscure or misrepresent the email's point of origin. 3. All of the emails attributed to Adknowledge or Virtumundo have "From:" lines that appear to accurately identify the sender, with the exception of the previously mentioned 8 typographical errors. In these 8 emails, other header fields correctly and accurately identify the sender. In all cases, I have made no attempt to contact the provided email addresses and I cannot attest to the validity of the email addresses. 4. All of the emails attributed to Adknowledge or Virtumundo clearly identify the sender in the email header. 5. All of the emails with content and attributed to Adknowledge or Virtumundo clearly identify the sender in the email's content. (Krawetz Rpt. at 24.) Defendants can easily be identified from their header information and email content. Consequently, their headers cannot be materially misleading. Any other conclusion would elevate form to the exclusion of substance. To the extent that Plaintiffs believe any of these conclusions to be incorrect, they must identify specific, admissible evidence in support of their position. Plaintiffs do not present an expert witness, and Gordon is not qualified to testify about technical issues. Plaintiffs do not authenticate the EmailTrackerPro reports with testimony from an EmailTrackerPro employee. In truth, Plaintiffs do not substantiate any of their conclusory allegations about email headers. The vague, general allegations upon which Plaintiffs have relied to date are insufficient to create any DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 19
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genuine issue of material fact, and summary judgment should be entered in Defendants' favor. b. Defendants qualify for the safe harbor because Defendants' "from" lines identify the sender of the message.

15 U.S.C section 7704(a)(1)(B) provides in relevant part: a "from" line (the line identifying or purporting to identify a person initiating the message) that accurately identifies any person who initiated the message shall not be considered materially false or materially misleading; This "safe harbor" is the basis for Plaintiffs' erroneous conclusion that CAN-SPAM requires the "actual name" in the "from name" field of the "from" line. Although Plaintiffs' interpretation of the statute is incorrect, their mistake is inconsequential because Defendants' "from" lines do accurately identify "any person who initiated the message". Defendants are therefore entitled to a finding that their email headers comply with CAN-SPAM. As is apparent from the Committee Report, the FTC is primarily concerned with whether a sender of commercial email can be identified and located. By using a publically registered domain name, a sender allows the recipient to obtain the sender's address and phone number from the publically available WHOIS database. A "from" line that contains the sender's actual email address, at a domain name with accurate contact information listed in WHOIS, should be held to "accurately identify" the person who initiated the message for the purpose of 15 U.S.C. § 7704(A)1(b). Any other result would punish legitimate email marketers and reward the dishonest emailers that CAN-SPAM was intended to punish. c. The First Amended Complaint does not include any CAN-SPAM claims alleging false or misleading headers.

Notwithstanding Plaintiffs' filing of a Motion for Partial Summary Judgment on the issue, the First Amended Complaint does not contain any allegation that Defendants violated 15 U.S.C. § 7704(a)(1). Accordingly, Plaintiffs' Motion should be denied as to its purported claims under section 7704(a)(1) of CAN-SPAM. 2. There is no "pattern or practice" of email with materially misleading subject lines, or without notice of advertisement.

Without factual support, Plaintiffs allege Defendants initiated commercial electronic mail with materially misleading subject lines and/or which lacked identification that the message is an DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 20
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advertisement. Standing under the Act is limited to providers of Internet access service adversely affected by . . .a pattern or practice that violates paragraph (2), (3), (4), or (5) of section 7704 (a)." 15 U.S.C. § 7706(g)(1) (emphasis added). In order to prevail, Plaintiffs cannot point to a few messages that may violate the statute, but must show a pattern or practice violating CANSPAM. Plaintiffs have failed to offer evidence sufficient to establish that Defendants' subject lines are anything but accurate, and clearly identify the messages to which they pertain as advertisements. Section 7704(a)(2) of the CAN-SPAM prohibits a person from transmitting commercial email: if such person has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message[.] Section 7704(a)(5)(i), in turn, requires commercial email to include "clear and conspicuous identification that the message is an advertisement or solicitation". In this case, Plaintiffs rely on asserting the legal conclusion that the Subject lines of Defendants' emails have a "tendency to mislead." See. e.g., Declaration of James S. Gordon, Jr. In Response and Opposition to Defendants' Motion to Compel Discovery Re Lynn Interrogatories. (Dkt. No. 76) ¶ 5 ("I cannot say `how' I was misled by these, but only that these have the capacity to mislead"). This is not evidence, it is a mere legal conclusion. Plaintiffs admit that they could readily identify Defendants' email as commercial solicitations, and could identify the products or services to which they pertain. (See Gordon Dep. at 376:8-23.) In construing the meaning of the term "false and misleading" with respect to subject lines, it is helpful to consider the legislative history of CAN-SPAM. The Committee Report noted, spammers often lure consumers to open their email by adding appealing or misleading email subject lines. The FTC reported that 42 percent of spam contains misleading subject lines that trick the recipient into thinking that the email sender has a personal or business relationship with the recipient. Typical examples are subject lines such as, "Hi, it's me" and "Your order has been filled". Moreover, email messages with deceptive subject lines may still lead unsuspecting consumers to websites promoting completely unrelated products or even scams, such as pornography or get-rich-quick pyramid schemes.
NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

DEFS.' MOT. FOR SUMM. J. CASE NO. CV06-0204C - 21

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Committee Rpt. at 4. This suggests that the primary concern underlying CAN-SPAM as it relates to subject lines concerns those that falsely purport to be from someone personally known to the recipient. The Supreme Court of Washington cited the same concern in State v. Heckel, 143 Wash. 2d 824 (2001). In Heckel, an Oregon resident sent unsolicited commercial email to Washington residents in which the subject line read: "Did I get the right e-mail address?" and "For your review-HANDS OFF!". The Court affirmed the trial court's award of summary judgment against Heckel for violation of CEMA, in that "reasonable minds could not differ" that Heckel's subject lines were deceptive and misleading because they were "clearly designed to entice the recipient to open the message . . . by enticing the recipient to believe that the message might be from a friend or acquaintance or business contact..." State v. Heckel, 122 Wash. App. 60 (Div. 1 2004). In order to bring a claim for violation of section 7704(a)(2) of CAN-SPAM, Plaintiffs must establish that Defendants are engaged in a "pattern or practice" of violating that subsection. 15 U.S.C. §7706 (g)(1). Here, the most Plaintiffs can point to are a few isolated instances of subject lines they believe might mislead, in the context of undisputedly thousands of accurate and truthful subject lines. Moreover, even those subject lines that Plaintiff alleges are particularly misleading (see Plaintiffs' Response in Opposition to Defendants' Motion to Compel Discovery Re Lynn Interrogatories at 4:3-4:10) are not misleading at all when viewed in conjunction with their respective "from" lines. For instance, the subject line "Attention Moms" is not misleading when viewed in conjunction with the "from" name "Work From Home"; it is plainly an advertisement for work-at-home business opportunities. (See Linke Decl. ¶ 19.) A recipient "acting reasonably under the circumstances" would not simply ignore this clarifying information. Moreover, CAN-SPAM requires consideration of whether a subject heading of the message would likely mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message. This restriction - that a misleading statement pertain to a factual representation - is a meaningful threshold inquiry in other contexts. See, e.g., Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997) (observing that the vaguer a term is, and the more meanings it reasonably can convey, the less DEFS.' MOT. FOR S