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Anti-Spam Class Action Defense Cases–Kleffman v. Vonage: Following Dismissal Of Class Action Ninth Circuit Certifies Question Concerning California’s Anti-Spam Law To California Supreme Court

Propriety of District Court Dismissal of Anti-Spam Class Action Complaint would Benefit from California Supreme Court Interpretation of Statute Ninth Circuit Holds

Plaintiff filed a class action against Vonage Holdings, Vonage America and Vonage Marketing (collectively “Vonage”) alleging violations of California’s anti-spam law. Kleffman v. Vonage Holdings Corp., ___ F.3d ___ (9th Cir. December 17, 2008) [Slip Opn., at 16588]. According to the class action complaint, Vonage or its marketing agents sent 11 unsolicited email advertisements to plaintiff; the class action alleged that “each e-mail contained an advertisement stating, ‘You Could Save up to 50% on Your Phone Bill!’” Id. The class action further alleged that each ad was “marked with Vonage’s copyright” and “clearly identified as Vonage mailings in the body of the e-mail.” Id. Vonage allegedly sent the emails from 11 different domain names in order to hinder the efforts of internet service providers to “identify and block Vonage’s unsolicited commercial e-mail advertisements” and to deceive the recipients into opening the emails. Id., at 16588-89. As the Ninth Circuit explained, California’s anti-spam law “prohibits unsolicited commercial e-mail advertisements containing or accompanied by falsified, misrepresented, or forged header information.” Id., at 16588 (citing Cal. Bus. & Prof. Code § 17529.5(a)(2)). Defense attorneys moved to dismiss the class action; the district court granted the motion holding that the class action complaint “failed to state a claim under the plain language of § 17529.5.” Id., at 16589. Plaintiff appealed, and the Ninth Circuit certified the dispositive question to the California Supreme Court pursuant to California Rules of Court Rule 8.548. Id., at 16586.

The specific question certified to the California Supreme Court by the Ninth Circuit is as follows: “Does sending unsolicited commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters constitute falsified, misrepresented, or forged header information under Cal. Bus. & Prof. Code § 17529.5(a)(2)?” Kleffman, at 16588. The Circuit Court explained at page 16586, “The decisions of the California Courts of Appeal and California Supreme Court provide no precedent to the certified question, and the answer may be determinative of this appeal.” The Ninth Circuit noted that the certified question involves an issue “likely to emerge again in cases governed by § 17529.5” but the relevant provision of the anti-spam law had not “been interpreted by the California Courts of Appeal or the California Supreme Court.” Id., at 16589.

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