Gordon v. Virtumundo Inc ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES S. GORDON, JR., an 
individual doing business as
gordonworks.com,
Plaintiff-Appellant, No. 07-35487
v.
 D.C. No.
CV-06-00204-JCC
VIRTUMUNDO, INC., a Delaware
corporation; ADKNOWLEDGE, INC., a OPINION
Delaware corporation; and SCOTT
LYNN, an individual,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted
December 9, 2008—Seattle, Washington
Filed August 6, 2009
Before: Ronald M. Gould, Richard C. Tallman, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tallman;
Concurrence by Judge Gould
10481
GORDON v. VIRTUMUNDO, INC. 10485
COUNSEL
Timothy J. Walton, Walton & Rose, LLP, Palo Alto, Califor-
nia, for plaintiff- appellant James S. Gordon, Jr.
Derek Newman (argued), Randall Moeller, Newman & New-
man, Attorneys at Law, LLP, Seattle, Washington, for
defendants-appellees Virtumundo, Inc., Adknowledge, Inc.,
and Scott Lynn.
Shannon E. Smith, Deputy Attorney General, Robert M.
McKenna, Attorney General of Washington, Seattle, Wash-
ington, for Amicus Curiae State of Washington.
Jason K. Singleton, Richard E. Grabowski, Singleton Law
Group, Eureka, California, for Amicus Curiae ASIS Internet
Services, Joel Householter, and Ritchie Phillips.
10486 GORDON v. VIRTUMUNDO, INC.
OPINION
TALLMAN, Circuit Judge:
This case addresses unsolicited commercial e-mail, more
commonly referred to as “spam.”1 While ignored by most and
reviled by some, spam is largely considered a nuisance and a
source of frustration to e-mail users who, at times, must wade
through inboxes clogged with messages peddling assorted,
and often unwanted, products and services. The rising tide of
spam poses an even greater problem to businesses, institu-
tions, and other entities through network slowdowns, server
crashes, and increased costs. At the same time, commercial
enterprise has staked its claim within the online world. The
1
While “spam” in this context does not have a precise definition, it is
typically understood to refer broadly to unsolicited e-mail messages (or
“junk” e-mail), typically commercial in nature. See United States v. Kel-
ley, 482 F.3d 1047, 1055 (9th Cir. 2007) (Thomas, J., dissenting).
The term “SPAM” originated as the trademark name for a canned pre-
cooked meat product manufactured by Hormel Foods Corporation. See
Hormel Foods Corp. v. Jim Henson Productions, Inc., 73 F.3d 497, 500
(2d Cir. 1996). The e-mail-related connotation has its roots in a popular
1970 sketch by the British comedy troupe Monty Python’s Flying Circus,
in which the word “spam” is repeated to the point of absurdity. Kelley, 482
F.3d at 1056 n.2 (Thomas, J. dissenting) (citing CompuServe Inc. v. Cyber
Promotions, Inc., 962 F. Supp. 1015, 1018 n.1 (S.D. Ohio 1997)). A wait-
ress recites menu items, which, to the restaurant patrons’ dismay, involve
increasingly repetitive mention of SPAM, only to be periodically inter-
rupted by a group of Vikings chanting a chorus about SPAM until normal
dialogue is impossible. David Crystal, Language and the Internet 53-54
(2001) (citing to Monty Python’s Flying Circus, 2d series, episode 25
(BBC television broadcast Dec. 15, 1970)). Thus, in the context of the
Internet, “spam” has come to symbolize unwanted, and perhaps annoying,
repetitious behavior that drowns out ordinary discourse. The term was first
used in the electronic messaging context to describe the practice of send-
ing advertisements to many recipients, particularly on newsgroup forums.
Id. But see S. Rep. No. 108-102, at 2 n.1 (2003), as reprinted in 2004
U.S.C.C.A.N. 2348, 2348 (noting that “[i]t all started in early Internet chat
rooms and interactive fantasy games where someone repeating the same
sentence or comment was said to be making ‘spam.’ ”).
GORDON v. VIRTUMUNDO, INC. 10487
Internet is a unique medium that offers legitimate businesses
a low-cost means to promote themselves and their wares and
in turn fosters competition in the marketplace. Both consum-
ers and Congress have come to view e-mail, when fairly
employed, as an established and worthwhile device in the
toolbox of accepted marketing practices.
After individual states initially wrestled with properly bal-
ancing the benefits and burdens of commercial e-mail, Con-
gress enacted legislation in an effort to curb the negative
consequences of spam and spamming practices without sti-
fling legitimate commerce. Through this opinion we review
the federal statutory scheme of the Controlling the Assault of
Non-Solicited Pornography and Marketing (“CAN-SPAM”)
Act of 2003, 15 U.S.C. § 7701 et seq., and assume the formi-
dable task of determining the statutory standing requirements
and the scope of federal preemption intended by Congress.
In the case before us, James S. Gordon, Jr. and his com-
pany, Omni Innovations, LLC (“Omni”),2 sued Virtumundo,
Inc., Adknowledge, Inc., and Scott Lynn, the sole shareholder
of both companies, seeking injunctive relief and significant
damages based on the receipt of thousands of commercial e-
mails. Defendants are in the online marketing business and
widely transmit e-mail advertisements and solicitations to
potential consumers on behalf of third-party clients. In the
parlance of our time, they are “spammers.”
Based on a dense record developed through substantial dis-
covery, the district court granted summary judgment in favor
of Virtumundo, Adknowledge, and Lynn (collectively, “Vir-
tumundo”) on all of Gordon’s claims. We have jurisdiction
over Gordon’s appeal pursuant to 28 U.S.C. § 1291. Having
carefully and independently evaluated the issues in light of
2
Unless otherwise specified, we use the term “Gordon” in the recitation
of the facts to collectively refer to both plaintiffs, Gordon and Omni. Omni
has no employees, and Gordon is its manager and sole member.
10488 GORDON v. VIRTUMUNDO, INC.
the evidence, we agree that summary judgment was proper
and therefore affirm.
I
Gordon is the original registrant of the Internet domain
“gordonworks.com,” which he hosts on server space that
Omni leases from GoDaddy, a domain registrar and web host-
ing company that also sells e-business related software and
services, see http://www.godaddy.com. The GoDaddy service
allows users to virtually access the server through an ordinary
Internet connection—in Gordon’s case, a broadband connec-
tion from Verizon. Through a virtual desktop called a “Plesk,”
Gordon is able to manage his domain. He can post content on
the Internet, create new e-mail accounts, and set user names
and log-on passwords. There are, of course, substantial
restrictions regarding Gordon’s usage of the leased server
space.
It was through this vehicle that Gordon created a personal
e-mail address: “jim@gordonworks.com.” Around September
2003, Gordon created additional e-mail accounts through the
gordonworks.com domain for about six friends and family
members, which he monitored for “data collection” and “re-
search purposes.” Gordon registered jim@gordonworks.com
and the gordonworks.com e-mail addresses of his “clients” in
response to various online promotions and for numerous prize
giveaways. Gordon estimates that, in doing so, he subscribed,
or “opted in,” to e-mail mailing lists somewhere between 100
and 150 times.3
Soon thereafter, these accounts began receiving e-mails
from businesses marketing their goods and services. Some of
3
Gordon further admits subscribing to various mailing lists as part of his
“reconnaissance” activities in preparation for his pending and potential
lawsuits. For example, Gordon would register his e-mail address in order
to gain access to corporate information about potential defendants.
GORDON v. VIRTUMUNDO, INC. 10489
these messages were transmitted by online marketers, such as
Virtumundo, on behalf of their clients. At his instruction, Gor-
don’s “clients” relinquished control of their e-mail accounts.
They then set up their own domains through GoDaddy, which
they housed on the server space leased by Omni. This enabled
these individuals to create their own e-mail addresses “@”
personalized domain names—e.g., “anthonycentral.com,”
“jaykaysplace.com,” and “chiefmusician.net”—rather than
gordonworks.com.
Gordon continued to maintain and monitor the abandoned
gordonworks.com e-mail accounts. He described his ongoing
efforts as “do[ing] research on the spam that comes through.”
At some later point, Gordon configured the e-mail server to
provide an automated response to all commercial e-mail sent
to gordonworks.com accounts. The response was titled
“NOTICE OF OFFER TO RECEIVE UNSOLICITED COMMERCIAL EMAIL
(SPAM)” and purported to consummate a “binding contract”
by which the sender agreed to either cease and desist or pay
Gordon $500 for each additional unsolicited e-mail subse-
quently delivered to the account. While he claims that online
marketers, including Virtumundo, ignored his requests that all
gordonworks.com e-mail addresses be removed from their
mailing lists, Gordon does not provide evidence, apart from
a general “belief,” that he followed the “opt-out” procedure
stated in the individual e-mail messages. Not surprisingly, the
e-mail accounts continued to receive spam, which over time
accumulated in the unused inboxes. At the time of his deposi-
tion in January 2007, these gordonworks.com e-mail accounts
remained active. However, the only persons who actually
used a gordonworks.com account were Gordon and his wife.
In 2004, Gordon began filing lawsuits in state and federal
court against persons and companies who sent solicitations or
advertisements to e-mail accounts hosted on Omni’s leased
server space. In February 2006, Gordon filed this lawsuit
against Virtumundo in the Western District of Washington.
He asserted various causes of action for violations of the
10490 GORDON v. VIRTUMUNDO, INC.
CAN-SPAM Act, 15 U.S.C. § 7701 et seq., the Washington
Commercial Electronic Mail Act (“CEMA”), Wash. Rev.
Code § 19.190.010 et seq., the Washington Consumer Protec-
tion Act (“CPA”), Wash. Rev. Code § 19.86.010 et seq., and
the Washington “Prize Statute,” Wash. Rev. Code
§ 19.170.010 et seq. As relevant to this appeal, Gordon con-
tends that Virtumundo sent, according to his most recent esti-
mate, approximately 13,800 materially misleading or
otherwise unlawful commercial e-mail messages to e-mail
accounts hosted through gordonworks.com. Gordon sought
injunctive relief, several millions of dollars in statutory and
treble damages, and his attorney’s fees and costs.4
In December 2006, the Honorable John C. Coughenour
granted in part and denied in part Virtumundo’s motion to dis-
miss for pleading deficiencies. The order dismissed Gordon’s
Prize Statute claims, in their entirety, and his CEMA and CPA
claims to the extent they related to the gathering of “person-
ally identifying information.” Wash. Rev. Code § 19.190.080.
The court gave leave to amend the complaint to cure pleading
deficiencies, but Gordon never did so.
Virtumundo then moved for summary judgment on all
remaining claims, which consisted of Gordon’s CAN-SPAM
Act claims and the surviving CEMA and CPA claims. By
Order dated May 15, 2007, the district court granted the
defense motion, see Gordon v. Virtumundo, Inc., No. 06-
0204, 2007 WL 1459395 (W.D. Wash. May 15, 2007). Judge
Coughenour concluded that both Gordon and Omni lacked
standing to pursue a private action under the CAN-SPAM Act
and that the state law claims failed as a matter of law based
in part on federal preemption grounds.
4
For example, in his motion for partial summary judgment, which the
district court denied, Gordon sought statutory damages in the amount of
$10,257,000, plus attorney’s fees and costs, based on 7,890 allegedly
unlawful e-mails.
GORDON v. VIRTUMUNDO, INC. 10491
Gordon alone now appeals this grant of summary judgment.5
II
We review a district court’s grant of summary judgment de
novo, and may affirm on any basis supported by the record.
Burrell v. McIlroy, 464 F.3d 853, 855 (9th Cir. 2006). Our
review is governed by the same standard used by the trial
court under Federal Rule of Civil Procedure 56. Adcock v.
Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir. 1999). “View-
ing the evidence in the light most favorable to the nonmoving
party, we must determine whether there are any genuine
issues of material fact and whether the district court correctly
applied the relevant substantive law.” Devereaux v. Abbey,
263 F.3d 1070, 1074 (9th Cir. 2001) (en banc).
A determination of standing is a question of law that we
review de novo, see Nat’l Res. Def. Council v. EPA, 542 F.3d
1235, 1244 (9th Cir. 2008), as is a finding of federal preemp-
tion, see Indus. Truck Ass’n, Inc. v. Henry, 125 F.3d 1305,
1309 (9th Cir. 1997).
III
A
[1] We first turn to Gordon’s CAN-SPAM Act claims. The
CAN-SPAM Act became effective on January 1, 2004, and
was enacted in response to mounting concerns associated with
the rapid growth of spam e-mails. Congress determined:
(1) there is a substantial governmental interest in
5
A notice of appeal was filed on behalf of both Gordon and Omni. Gor-
don and trial counsel parted ways following the district court’s summary
judgment order, and Gordon proceeded pro se. Upon the filing of Gor-
don’s opening brief, we dismissed Omni from this appeal as an improper
pro se corporate appellant.
10492 GORDON v. VIRTUMUNDO, INC.
regulation of commercial electronic mail on a
nationwide basis;
(2) senders of commercial electronic mail should not
mislead recipients as to the source or content of such
mail; and
(3) recipients of commercial electronic mail have a
right to decline to receive additional commercial
electronic mail from the same source.
15 U.S.C. § 7701(b).6 The Act does not ban spam outright, but
rather provides a code of conduct to regulate commercial e-
mail messaging practices. Stated in general terms, the CAN-
SPAM Act prohibits such practices as transmitting messages
with “deceptive subject headings” or “header information that
is materially false or materially misleading.” See 15 U.S.C.
§ 7704(a)(1), (2). The Act also imposes requirements regard-
ing content, format, and labeling. For instance, unsolicited e-
mail messages must include the sender’s physical postal
address, indicate they are advertisements or solicitations, and
notify recipients of their ability to decline further mailings. 15
U.S.C. § 7704(a)(5). Moreover, in order to comply with the
Act, each message must have either a functioning return e-
mail address or a comparable mechanism that allows a recipi-
ent to “opt out” of future mailings. 15 U.S.C. § 7704(a)(3).7
[2] The CAN-SPAM Act’s enforcement provision empow-
ers the Federal Trade Commission, state attorneys general,
6
The CAN-SPAM Act defines “commercial electronic mail message” to
mean “any electronic mail message the primary purpose of which is the
commercial advertisement or promotion of a commercial product or ser-
vice (including content on an Internet website operated for a commercial
purpose),” excluding transactional or relationship messages. 15 U.S.C.
§ 7702(2).
7
The CAN-SPAM Act also delineates “aggravated violations” for vari-
ous spamming practices such as e-mail harvesting and dictionary server
attacks, see 15 U.S.C. § 7704(b), which are not at issue in this lawsuit.
GORDON v. VIRTUMUNDO, INC. 10493
and other state and federal agencies to pursue legal actions to
enforce the Act’s provisions. 15 U.S.C. § 7706(a), (b), (f).
Congress also provided a limited private right of action,
which states: A “provider of Internet access service adversely
affected by a violation of” § 7704(a)(1), (b), or (d), or “a pat-
tern or practice that violates” § 7704(a)(2) through (5) of the
Act “may bring a civil action in any district court” to enjoin
further violation by a defendant or to recover either actual or
statutory damages, whichever is greater. 15 U.S.C.
§ 7706(g)(1). Statutory damages under the CAN-SPAM Act
are substantial and can equal as much as $300 per unlawful
e-mail.8 15 U.S.C. § 7706(g)(3). The Act also authorizes an
award of attorneys’ fees and costs against any party at the dis-
trict court’s discretion. 15 U.S.C. § 7706(g)(4).
Therefore, in any private action claiming CAN-SPAM Act
violations, a threshold issue is whether the plaintiff satisfies
the statutory standing requirements. On its motion for sum-
mary judgment, Virtumundo challenged Gordon’s and
Omni’s ability to pursue a private action under § 7706(g)(1).
The district court conducted a thorough analysis of the exist-
ing case law, the CAN-SPAM Act itself, and the legislative
history. Based upon the well-developed facts of the summary
judgment record, the district court concluded that Plaintiffs
had not demonstrated adequate harm—i.e., an “adverse
effect,” as the district court called it—and therefore lacked
standing with respect to these federal claims. Gordon, 2007
WL 1459395, at *8.
We agree that Gordon lacks standing to bring a private
action under the CAN-SPAM Act. We commend the district
8
Statutory damages are calculated by multiplying the number of viola-
tions (i.e., the number of unlawful e-mail messages) by up to $100 in the
case of a violation of § 7704(a)(1), or by up to $25 for any other violation.
15 U.S.C. § 7706(g)(3). The court may consider the defendant’s conduct
in setting the statutory damage award and, if it determines that violations
are aggravated, may increase the damage award up to three times the
amount otherwise available. Id.10494 GORDON v. VIRTUMUNDO, INC.
court’s pioneering analysis in this uncharted territory, and
reach a similar conclusion based on our assessment of the
CAN-SPAM Act’s statutory standing requirement and the
appellate record.
B
As recognized by several courts, the case law regarding the
relevant legal standards under the CAN-SPAM Act is “scant,”
ASIS Internet Servs. v. Optin Global, Inc., No. 05-05124,
2008 WL 1902217, at *15 (N.D. Cal. Apr. 29, 2008), and few
courts have construed the standing provision, ASIS Internet
Servs. v. Active Response Group, No. 07-6211, 2008 WL
2952809, at *2 (N.D. Cal. July 30, 2008). Neither we nor any
of our sister circuits have comprehensively addressed this
issue. We endeavor to do so here, at least in part.
1
[3] We begin by acknowledging that the CAN-SPAM
standing inquiry involves two general components: (1)
whether the plaintiff is an “Internet access service” provider
(“IAS provider”), and (2) whether the plaintiff was “adversely
affected by” statutory violations. See, e.g., Brosnan v. Alki
Mortgage, LLC, No. 07-4339, 2008 WL 413732, at *1-*2
(N.D. Cal. Feb. 13, 2008). Beyond that, however, the statu-
tory standing provision read as a whole is ambiguous—a
point upon which all parties agree. We therefore employ
familiar techniques of statutory construction to evaluate Con-
gress’s intent with regard to both components and their rela-
tion to one another.
While over time courts have developed various canons to
assist with statutory interpretation, this “is an area in which
absolutist rules do not [always] lead to sensible or accurate
results.” Mt. Graham Red Squirrel v. Madigan, 954 F.2d
1441, 1453 (9th Cir. 1992). “[I]t is,” after all, “the duty of a
court in construing a law to consider the circumstances under
GORDON v. VIRTUMUNDO, INC. 10495
which it was passed and the object to be accomplished by it.”
United States v. Curtis-Nev. Mines, Inc., 611 F.2d 1277, 1280
n.1 (9th Cir. 1980) (quoting United States v. Anderson, 76
U.S. 56, 65-66 (1869)); accord Callejas v. McMahon, 750
F.2d 729, 731 (9th Cir. 1984). Therefore, especially in this
highly technical and evolving field, “[c]ommon sense not
dogma is what is needed in order to explore the actual mean-
ing of legislative enactments.” Mt. Graham Red Squirrel, 954
F.2d at 1453.
There are a few points that heavily influence our analysis,
which we identify at the outset. First, despite what Gordon
and likeminded anti-spam enthusiasts might contend, the pur-
pose of the CAN-SPAM Act was not to stamp spam out of
existence. While Gordon is likely not alone in his deep-seated
hostility toward spam and those who profit from it, there are
beneficial aspects to commercial e-mail, even bulk messag-
ing, that Congress wanted to preserve, if not promote. Indeed,
the Act recognizes e-mail’s value as a worthwhile commercial
tool:
Electronic mail has become an extremely important
and popular means of communication, relied on by
millions of Americans on a daily basis for personal
and commercial purposes. Its low cost and global
reach make it extremely convenient and efficient,
and offer unique opportunities for the development
and growth of frictionless commerce.
15 U.S.C. § 7701(a)(1); see also S. Rep. No. 108-102, at 2
(2003), as reprinted in 2004 U.S.C.C.A.N. 2348, 2349
(“Unlike direct mail delivered through the post office to con-
sumers, [e-mail] can reach millions of individuals at little to
no cost and almost instantaneously.”). The tailored regula-
tions, which target deceptive and predatory practices and
attempt to alleviate the negative effects of spam without
unduly stifling lawful enterprise, embody the fine balance
struck by Congress.
10496 GORDON v. VIRTUMUNDO, INC.
Second, Congress conferred standing only on a narrow
group of possible plaintiffs: the Federal Trade Commission,
certain state and federal agencies, state attorneys general, and
IAS providers adversely affected by violations of the CAN-
SPAM Act. See 15 U.S.C. § 7706(a), (b), (f), (g). The deci-
sion to restrict the right of action does not reflect an indiffer-
ence or insensitivity to the effects of spam on consumers. The
contrary is true. The CAN-SPAM Act’s express findings and
legislative history are littered with references to the burdens
shouldered by individuals, businesses, and other institutions.
The Act itself recognizes the “costs to recipients . . . for the
storage of [unsolicited commercial e-mail], or for the time
spent accessing, reviewing, and discarding such mail, or
both.” 15 U.S.C. § 7701(a)(3). We surmise that Congress’s
intent was to limit enforcement actions to those best suited to
detect, investigate, and, if appropriate, prosecute violations of
the CAN-SPAM Act—those well-equipped to efficiently and
effectively pursue legal actions against persons engaged in
unlawful practices and enforce federal law for the benefit of
all consumers.
Third, our review of the congressional record reveals a
legitimate concern that the private right of action be circum-
scribed and confined to a narrow group of private plaintiffs:
“[Section 7706](g) provides for a limited right of action by
bona fide Internet service providers.” 150 Cong. Rec. E72-02
(Jan. 28, 2004) (remarks of Rep. Dingell) (emphasis added);
accord id. at E73-01 (remarks of Rep. Tauzin). It is perhaps
a sad reality that Congress must specify a bona fide IAS pro-
vider, as possibly distinct from a non-genuine IAS provider.
But this demonstrates to us that lawmakers were wary of the
possibility, if not the likelihood, that the siren song of sub-
stantial statutory damages would entice opportunistic plain-
tiffs to join the fray, which would lead to undesirable results.
While Congress did not intend that standing be limited to fee-
for-service operations,9 we think it did intend to exclude
9
In support of its summary judgment motion, Virtumundo argued that,
as providers of free services, Gordon and Omni did not qualify as IAS pro-
GORDON v. VIRTUMUNDO, INC. 10497
plaintiffs who, despite certain identifying characteristics, did
not provide the actual, bona fide service of a legitimate opera-
tion. See 150 Cong. Rec. E72-02 (“[W]e intend that Internet
access service providers provide actual Internet access service
to customers.”). We believe that Congress’s clear intention to
restrict private action remains of great importance and guides
the proper standing analysis.
Fourth and finally, we must factor into the calculus the
unique nature of the subject matter at issue. Especially in this
arena, the engine of innovation moves far more quickly and
nimbly than the methodical pace of legislation. That is readily
apparent here. In the few years since the CAN-SPAM Act
became effective, the uses of the Internet and the prevalence
and variety of available online services have multiplied expo-
nentially. The marketplace has developed a panoply of related
products and services not available when Congress authored
the federal legislation. Significantly, no longer are typical
Internet users primarily limited to accessing e-mail accounts
and searching for content or information. With the rise of
social networking sites, blogs, and other user-driven websites,
the ability to post content on the Internet or to create forums
for others to do so is no longer a privilege reserved for the
technologically savvy or the financially elite. The rate of
development will only accelerate. As this inevitably occurs
and the gateway to the online world further widens for the
masses, courts should be mindful that the lines Congress
intended to draw when drafting the statutory text might lose
clarity.
With these principles in mind, we apply a standing analysis
that encapsulates Congress’s will when it provided a limited
private right of action.
viders. The district court correctly rejected this argument because Con-
gress expressly discussed free Internet services when it enacted the CAN-
SPAM Act. See S. Rep. No. 108-102, at 3 (mentioning Microsoft’s free
e-mail service when discussing effects of the increasing volume of spam).
10498 GORDON v. VIRTUMUNDO, INC.
2
[4] We first address whether Gordon is a “provider of Inter-
net access service” who, if adversely affected by a statutory
violation, has private standing to bring CAN-SPAM Act
claims. The CAN-SPAM Act defines “Internet access ser-
vice” by reference to the Communications Act, see 15 U.S.C.
§ 7702(11), which provides:
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 of a
package of services offered to consumers. Such term
does not include telecommunications services.
47 U.S.C. § 231(e)(4). We have not previously spoken “as to
who is an ‘Internet access service’ provider” within the mean-
ing of the CAN-SPAM Act, see Ferguson v. Quinstreet, Inc.,
No. 07-5378, 2008 WL 3166307, at *5 (W.D. Wash. Aug. 5,
2008), and note the ambiguity of this statutory definition.
District courts in our circuit have interpreted the definition
of “Internet access service” broadly to encompass a wide
range of services, and not merely traditional Internet Service
Providers (“ISPs”)—i.e., the service that connects customers
to the Internet itself. See Hypertouch, Inc. v. Kennedy-
Western Univ., No. 04-05203, 2006 WL 648688, at *3 (N.D.
Cal. March 8, 2006) (stating that “a provider of e-mail service
alone, without any other services, qualifies” as an IAS pro-
vider under the CAN-SPAM Act). For instance, one such
court reasoned that, although the definition “appears primarily
to contemplate services that provide consumers their initial
connection point to the Internet, the language is broad enough
to encompass entities such as Facebook,” a popular social net-
working site, “that provide further access to content and com-
munications between users for persons who may initially
GORDON v. VIRTUMUNDO, INC. 10499
access the Internet through a conventional [ISP].” Facebook,
Inc. v. ConnectU LLC, 489 F. Supp. 2d 1087, 1094 (N.D. Cal.
2007); see also MySpace, Inc. v. The Globe.com, Inc., No. 06-
3391, 2007 WL 1686966, at *3 (C.D. Cal. Feb. 27, 2007)
(holding that MySpace had standing under the CAN-SPAM
Act and interpreting the definition of “Internet access service”
broadly to “include[ ] traditional [ISPs], any email provider,
and even most website owners”). Gordon claims IAS-provider
status, asserting that through the gordonworks.com domain
and the leased server space he enables users to access Internet
content and e-mail. On a superficial level, this proposition is
hard to dispute. In the most general terms, a “service that
enables users to access” online content or e-mail could
encompass the proprietor of an Internet coffee shop or, as one
district court suggested, “any person who allows another per-
son to use their computer to access the Internet,” Fergusen,
2008 WL 3166307, at *5. Indeed, at some level, common util-
ity services play a role in enabling users to access Internet
content. Without question, this was not what Congress
intended when it was defining the private right of action.
[5] While we agree that statutory standing is not limited to
traditional ISPs, we reject any overly broad interpretation of
“Internet access service” that ignores congressional intent.
Contrary to Gordon’s suggestion, providing e-mail accounts
cannot alone be sufficient. Many employers and institutions,
for example, provide their employees or members with e-mail
accounts and service—including our court. The findings codi-
fied in the statute note Congress’s concern pertaining to the
growth of unsolicited commercial e-mail and its imposition of
“monetary costs on providers of Internet access services,”
which have standing to sue, as well as on “businesses, and
educational and nonprofit institutions that carry and receive
such mail.” 15 U.S.C. § 7701(a)(6). Clearly, Congress viewed
IAS providers as distinct from entities that merely “carry [or]
receive such mail.” Standing under the CAN-SPAM Act
requires more. See, e.g., White Buffalo Ventures, LLC v. Univ.
of Texas at Austin, 420 F.3d 366, 373 (5th Cir. 2005) (“[W]e
10500 GORDON v. VIRTUMUNDO, INC.
are hard-pressed to find that providing email accounts and
email access does not bring [the University of Texas] within
the statutory definition . . . .” (emphasis added)). There may
well be a technical or hardware component implicit in the def-
inition. But, we find the parties’ briefing on the topic inade-
quate to reach an informed decision here. Because it is not
necessary to our holding, we decline this opportunity to set
forth a general test or define the outer bounds of what it
means to be a provider of “Internet access service.”
[6] Nevertheless, we conclude that Gordon does not fit any
reasonable definition of “Internet access service” provider.
Gordon is a registrant of a domain name, which he, through
Omni, hosts on leased server space. He neither has physical
control over nor access to the hardware, which GoDaddy
owns, houses, maintains, and configures. From our review of
the record, Gordon’s service appears to be limited to using his
“Plesk” control panel, which he accesses via an ordinary
Internet connection through an ISP, to set up e-mail accounts
and log-in passwords and to execute other administrative
tasks. Verizon enables his online access. GoDaddy provides
the service that enables ordinary consumers to create e-mail
accounts, register domain names, and build personalized web
pages. Gordon has simply utilized that service for himself and
on behalf of others. It matters not that he entered the
keystrokes or clicked the mouse. Nor is it relevant that he cre-
ated gordonworks.com e-mail addresses for family and
friends, and not merely himself. While Verizon and GoDaddy
might have a compelling argument that they are IAS provid-
ers within the meaning of the CAN-SPAM Act, Gordon’s
claim that he holds such elite status is unconvincing.
In addition to his nominal role in providing Internet-related
services, we are also troubled by the extent to which Gordon
fails to operate as a bona fide e-mail provider. As discussed
in greater detail below, Gordon has purposefully avoided tak-
ing even minimal efforts to avoid or block spam messages.
Instead, Gordon devotes his resources to adding his “clients’ ”
GORDON v. VIRTUMUNDO, INC. 10501
e-mail addresses to mailing lists and accumulating spam
through a variety of means for the purpose of facilitating liti-
gation.
[7] Gordon’s arguments of technical compliance with this
standing component, without any regard for the overarching
congressional purpose, are not compelling. The record here is
sufficiently developed. We hold that Gordon is not an “Inter-
net access service” provider within the meaning of the CAN-
SPAM Act.
3
We next turn to the “adversely affected by” component of
the CAN-SPAM Act’s standing inquiry. Gordon has undoubt-
edly encountered a large volume of commercial e-mail. This,
however, is not enough to establish statutory standing. In
order to pursue a private right of action, an IAS provider must
demonstrate that it has been “adversely affected by a violation
of . . . or a pattern or practice that violates” the Act. 15 U.S.C.
§ 7706(g)(1) (emphasis added). As with other issues on this
appeal, we find little guidance in existing case law as to the
meaning of the nebulous text.
a
[8] The CAN-SPAM Act itself does not delineate the types
of harm suggested by the “adversely affected by” language.
The district court, acknowledging this ambiguity, confronted
the question by reference to traditional methods of statutory
interpretation and ultimately concluded that the harm “must
be both real and of the type uniquely experienced by IASs for
standing to exist.” Gordon, 2007 WL 1459395, at *7 (empha-
sis added).10 To our knowledge, all courts that have addressed
10
The district court further reasoned that if the limited private right of
action is to have any traction at all, “[n]ot only must CANSPAM private
plaintiffs allege a particular type of harm, the adverse effect they allege
10502 GORDON v. VIRTUMUNDO, INC.
the issue have similarly concluded that the type of harm envi-
sioned by Congress did not encompass the ordinary inconve-
niences experienced by consumers and end users. See Active
Response, 2008 WL 2952809, at *5. We have considered the
statutory text and the legislative record, and we agree.
[9] It is notable that Congress conferred standing only on
adversely affected IAS providers, but not adversely affected
consumers. Logically, the harms redressable under the CAN-
SPAM Act must parallel the limited private right of action
and therefore should reflect those types of harms uniquely
encountered by IAS providers. The Committee Report identi-
fied the cost of “investing in new equipment to increase
capacity and customer service personnel to deal with
increased subscriber complaints . . . [and] maintaining e-mail
filtering systems and other anti-spam technology on their net-
works to reduce the deluge of spam” as undesirable conse-
quences facing the typical ISP. S. Rep. No. 108-102, at 6.
“All courts that have construed the statute” have similarly
defined the harms upon which standing may be predicated to
include “network crashes, higher bandwidth utilization, and
increased costs for hardware and software upgrades, network
expansion and additional personnel.” Active Response, 2008
WL 2952809, at *5. We conclude that these sorts of ISP-type
harms are what Congress had in mind.11
must be significant.” Gordon, 2007 WL 1459395, at *8 (emphasis added).
The court did not explain the meaning of the term “significant.” As dis-
cussed herein, we believe that Congress intended that the alleged harm be
something of significance to an IAS provider. To this extent, we agree
with the district court’s reasoning that harm be significant.
11
In their amicus brief, ASIS Internet Services, Joel Householter, and
Ritchie Phillips (collectively, “ASIS”) argue that “harm” for CAN-SPAM
standing purposes is merely “the cost of carrying SPAM emails over the
[Internet access provider]’s facilities.” This view contradicts the plain text
of the statute and the legislative goal of limiting the private right of action.
No court has adopted this position, and we reject it as well. Congress
stated that the private standing provision of § 7706(g)(1) “could include
GORDON v. VIRTUMUNDO, INC. 10503
[10] We do not purport to enumerate each and every harm
that might satisfy the CAN-SPAM Act’s standing provision.
Nor do we suggest that the list is finite. At minimum, how-
ever, the harm must be both real and of the type experienced
by ISPs. While the harm need not be significant in the sense
that it is grave or serious, the harm must be of significance to
a bona fide IAS provider—something beyond the mere
annoyance of spam and greater than the negligible burdens
typically borne by an IAS provider in the ordinary course of
business. In most cases, evidence of some combination of
operational or technical impairments and related financial
costs attributable to unwanted commercial e-mail would suf-
fice. See Hypertouch, 2006 WL 648688, at *4 (finding evi-
dence of “decreased server response and crashes,” “higher
bandwidth utilization,” and “expensive hardware and software
upgrades” sufficient harm for statutory standing).
Courts must of course be careful to distinguish the ordinary
costs and burdens associated with operating an Internet access
service from actual harm. We expect a legitimate service pro-
vider to secure adequate bandwidth and storage capacity and
take reasonable precautions, such as implementing spam fil-
ters, as part of its normal operations. Courts should take an
especially hard look at the cited harm if it suspects at the out-
set that a plaintiff is not operating a bona fide Internet access
service, as is the case here.
Defining the type of harm required for CAN-SPAM Act
standing is, however, only one part of the equation. Section
a service provider who carried unlawful spam over its facilities, or who
operated a website or online service from which recipient e-mail addresses
were harvested in connection with a violation.” S. Rep. No. 108-102, at
21 (emphasis added). In this context, the term “could,” which has a differ-
ent meaning than “would,” see Rosas v. Monroe County Tax Claim
Bureau, 323 B.R. 893, 900 (Bankr. M.D. Pa. 2004) (“There is a clear dif-
ference between the plain meaning of the words ‘could’, ‘might’ and
‘will.’ ”), implies that encountering spam is merely a component of the
standing equation. Some qualifying harm must follow.
10504 GORDON v. VIRTUMUNDO, INC.
7706(g)(1) also inquires whether the contemplated harm is
attributable to the type of practices circumscribed by the Act
—i.e., whether an IAS provider was adversely affected by
misconduct. After all, network slowdowns, server crashes,
increased bandwidth usage, and hardware and software
upgrades bear no inherent relationship to spam or spamming
practices. On the contrary, we expect these issues to arise as
a matter of course and for legitimate reasons as technology,
online media, and Internet services continue to advance and
develop. Therefore, evidence of what could be routine busi-
ness concerns and operating costs is not alone sufficient to
unlock the treasure trove of the CAN-SPAM Act’s statutory
damages.
[11] To give the statutory text meaning there must be, at
bare minimum, a demonstrated relationship between pur-
ported harms and the type of e-mail practices regulated by the
Act—i.e., a showing that the identified concerns are linked in
some meaningful way to unwanted spam and, in turn, repre-
sent actual harm. The e-mails at issue in a particular case
must, at the very least, contribute to a larger, collective spam
problem that caused ISP-type harms.12
12
Whether a private plaintiff must allege and prove that the defendant’s
particular e-mails caused ISP-type harms has been a point of conflict
among district courts. While summary judgment in our case did not turn
on a lack of causation, the district court’s order has contributed to the con-
fusion within our circuit. In finding a lack of “adverse effect” to support
standing, the district court remarked that Gordon and Omni “have alleged
absolutely no financial hardship or expense due to e-mails they received
from Defendants.” Gordon, 2007 WL 1459395, at *8 (emphasis added).
Subsequent courts have interpreted this language to impose upon private
plaintiffs the burden of showing that a defendant’s e-mails directly caused
the harm alleged. See Optin Global, 2008 WL 1902217, at *17 (“While
there is some evidence that spam generally has imposed costs on ASIS
over the years, there is no evidence that the Emails at issue in this action
resulted in adverse effects to ASIS . . . .” ); Brosnan, 2008 WL 413732,
at *2-*3 (dismissing sua sponte plaintiff’s CAN-SPAM Act claims for
lack of standing and citing Gordon for the proposition that “[t]he plaintiff
must have suffered actual adverse effects as a result of Defendant’s
actions”).
GORDON v. VIRTUMUNDO, INC. 10505
We note, in passing, that the threshold of standing should
not pose a high bar for the legitimate service operations con-
templated by Congress. In some civil actions—where, for
example, well-recognized ISPs or plainly legitimate Internet
access service providers file suit—adequate harm might be
presumed because any reasonable person would agree that
such entities dedicate considerable resources to and incur sig-
nificant financial costs in dealing with spam. See S. Rep. No.
108-102, at 2-3 (recounting reports by America Online,
Microsoft, and Earthlink regarding the effects of increasing
volumes of spam). Where, by comparison, a private plaintiff’s
status as an IAS provider is questionable and reasonably con-
tested, courts should not only inquire into the plaintiff’s pur-
ported Internet-related service operations but also closely
examine the alleged harms attributable to spam. We have con-
fidence in our district courts to review the individual charac-
teristics of the plaintiffs on a case-by-case basis and make a
reasoned decision whether a purported IAS provider is truly
the type of bona fide IAS provider adversely affected by com-
mercial e-mail messaging that Congress envisioned when it
enacted the CAN-SPAM Act.
b
In opposition to Virtumundo’s summary judgment motion,
Gordon argued that he had been adversely affected by spam
As some subsequent courts have cautioned, we are troubled by the pos-
sibility that imposing a direct causation requirement, although not incon-
sistent with the statutory text, might create an unworkable standard for
private plaintiff standing given the impracticability of tracing a harm to a
specific e-mail or batch of e-mails. See Active Response, 2008 WL
2952809, at *5. This reading erects a barrier that could in some situations
insulate wrongdoers, especially less prolific spammers, from private
enforcement actions. Nevertheless, our holding today does not foreclose
this possible interpretation of § 7706(g)(1). We reserve this determination
for another case where the issue is squarely presented to us and adequately
briefed by the parties.
10506 GORDON v. VIRTUMUNDO, INC.
because he and his “clients” had been “forced to wade
through thousands of e-mails sent by” Virtumundo that
“clogged” his service. Applying the proper interpretation of
the CAN-SPAM Act’s standing provision, we conclude that
Gordon also fails the “adversely affected by” component. It
is readily apparent that Gordon, an individual who seeks out
spam for the very purpose of filing lawsuits, is not the type
of private plaintiff that Congress had in mind when it fash-
ioned § 7706(g)(1)’s standing provision. While many anti-
spam enthusiasts may applaud his zealous counter-attack
against alleged spammers, Gordon’s passion for the cause
does not displace the will of Congress in drafting a narrow
private right of federal action.
[12] Gordon has failed to argue, let alone come forth with
evidence, that, even if he was an IAS provider, he has suf-
fered any real harm contemplated by the CAN-SPAM Act. He
has not hired additional personnel, nor has he experienced
technical concerns or incurred costs that can be necessarily
attributed to commercial e-mail. It is also compelling that
Gordon purposefully refuses to implement spam filters in a
typical manner or otherwise make any attempt to block alleg-
edly unwanted spam or exclude such messages from users’ e-
mail inboxes. In fact, Gordon acknowledges that he was able
to “blacklist” domain names at the server level, so that the
GoDaddy server would reject e-mails from online marketers
such as Virtumundo. Still, even without taking even basic pre-
cautions, he has not “come close” to using the 500 gigabytes
of bandwidth available to him through GoDaddy. He has pre-
sented nothing beyond the negligible burdens typically expe-
rienced by bona fide IAS providers. As the district court con-
cluded, Gordon has “suffered no harm related to bandwidth,
hardware, Internet connectivity, network integrity, overhead
costs, fees, staffing, or equipment costs.” Gordon, 2007 WL
1459395, at *8. Indeed, given his heavy dependence on the
GORDON v. VIRTUMUNDO, INC. 10507
services and hardware of third parties, it would be difficult, if
not impossible, for him to incur many of these harms.13
Gordon’s claimed harms almost exclusively relate to litiga-
tion preparation, not to the operation of a bona fide service.
Gordon made no real effort to avoid, block, or delete commer-
cial e-mail, but instead has voluntarily assumed the role of a
spam sleuth. He expends time and resources seeking out and
capturing massive volumes of spam, which he collects and
then organizes for use in his prolific lawsuits. He admits set-
ting up domains as “spam traps” with the sole purpose of
snagging as many e-mail marketing messages as possible. The
record reveals that gordonworks.com was one such trap. He
is not alone in his litigation enterprise. His “clients” also use
their personalized domains to gather commercial e-mails,
which they then send to Gordon in enormous unsorted batches
of 10,000 to 50,000 messages to fuel his various anti-spam law-
suits.14 In exchange, Gordon’s “clients” share in settlement
proceeds. Gordon apportions the bounty according to each
individual’s contribution to the particular lawsuit—i.e., the
13
We also note that there may be significance in distinguishing Gordon
from Omni, a non-party to this appeal. See Real Marketing Servs., LLC v.
Protocol Commc’ns, Inc. (In re Real Marketing Servs., LLC), 309 B.R.
783, 788 (Bankr. S.D. Cal. 2004) (holding that managing member lacked
standing to bring claims for damages of LLC), relied upon in Finley v.
Takisaki, No. 05-1118, 2006 WL 1169794, at *2-*3 (W.D. Wash. Apr. 28,
2006) (holding that, under Washington law, LLC members lacked stand-
ing because their claimed loss derived solely from their membership in the
LLC); see generally United States v. Stonehill, 83 F.3d 1156, 1160 (9th
Cir. 1996) (“Well-established principles of corporate law prevent a share-
holder from bringing an individual direct cause of action for an injury
done to the corporation or its property by a third party.”). The record is
murky as to the distinction, due largely to Gordon’s inability to distinguish
himself as an individual from his capacity as Omni’s agent. Because Omni
has been dismissed from this appeal, Gordon’s claims are even weaker.
14
Gordon has filed and continues to file numerous actions in state and
federal courts against various defendants, often representing himself pro
se. As the district court noted, in 2006 and 2007, Omni was a party to 10
other lawsuits pending in the Western District of Washington alone.
10508 GORDON v. VIRTUMUNDO, INC.
number of e-mails provided to Gordon for use against a spe-
cific defendant.
Gordon admits operating an anti-spam business, which
entails, in his words, “[n]otifying spammers that they’re vio-
lating the law” and filing lawsuits if they do not stop sending
spam.15 As Gordon concedes, he is a professional plaintiff.
Reply Br. of Appellant at 5. Since at least 2004, Gordon has
held no employment. He has never been compensated for any
of his purported Internet services, and his only income source
has come from monetary settlements from his anti-spam liti-
gation campaign. Likewise, his company, Omni, generates no
revenue and is financed strictly through these lawsuits against
e-mail marketers. While the term “professional,” as in “pro-
fessional plaintiff,” is not a “dirty word,” see Murray v.
GMAC Mortgage Corp., 434 F.3d 948, 954 (7th Cir. 2006),
and should not itself undermine one’s ability to seek redress
for injuries suffered, Gordon’s status is uniquely relevant to
the statutory standing question here. Cf. Hypertouch, 2006
WL 648688, at *4 n.2 (rejecting defendant’s argument that
Hypertouch was a “professional plaintiff” that entered the ISP
business for the sole purpose of bringing anti-spam lawsuits).
[13] Because we are tasked with determining whether Gor-
don has been adversely affected by conduct regulated by the
CAN-SPAM Act, it is highly significant that the burdens Gor-
don complains of are almost exclusively self-imposed and
purposefully undertaken. Here, Gordon acknowledges that he
benefits from the receipt of spam through his research and
monetary settlements. The fact that Gordon derives substan-
tial financial benefit but endures no real ISP-type harm from
commercial e-mail, coupled with his unusual efforts to seek
out and accumulate—rather than avoid or block—spam, dem-
15
As should be apparent here, “the law” that Gordon purportedly
enforces relates more to his subjective view of what the law ought to be,
and differs substantially from the law itself.
GORDON v. VIRTUMUNDO, INC. 10509
onstrates that he has not been adversely affected by alleged
violations of the federal act in any cognizable way.
We do not discount the harmful effects spam and spam-
ming practices, both lawful and unlawful, have upon busi-
nesses and consumers, and we recognize the need of bona fide
IAS providers, both small and large, for a legal remedy
against law-breaking spammers. We, like Congress, are sym-
pathetic to legitimate operations hampered by a deluge of
unwanted e-mail marketing. Our record, however, conclu-
sively demonstrates that this is not the case before us. Gordon
has created a cottage industry where he and his “clients” set
themselves up to profit from litigation. The CAN-SPAM Act
was enacted to protect individuals and legitimate businesses
—not to support a litigation mill for entrepreneurs like Gor-
don.
[14] As discussed above, it is undisputed that Gordon
encounters huge quantities of commercial e-mail. Neverthe-
less, he is neither a bona fide IAS provider nor has he been
adversely affected by alleged violations of the CAN-SPAM
Act. We conclude that Gordon lacks standing to pursue claims
under § 7706(g)(1), and affirm the district court’s summary
judgment dismissal of all his federal claims.
IV
Gordon also appeals the adverse summary judgment dis-
missing his claims for alleged violations of CEMA, Washing-
ton’s statute regulating commercial e-mail messages. See
Wash. Rev. Code § 19.190.010 et seq. Like many other states,
Washington has enacted legislation that seeks to curb e-mail
abuses. CEMA states in relevant part:
(1) No person may initiate the transmission, conspire
with another to initiate the transmission, or assist the
transmission, of a commercial electronic mail mes-
sage from a computer located in Washington or to an
10510 GORDON v. VIRTUMUNDO, INC.
electronic mail address that the sender knows, or has
reason to know, is held by a Washington resident
that:
(a) Uses a third party’s internet domain
name without permission of the third party,
or otherwise misrepresents or obscures any
information in identifying the point of ori-
gin or the transmission path of a commer-
cial electronic mail message; or
(b) Contains false or misleading informa-
tion in the subject line.
Wash. Rev. Code § 19.190.020. The statute also prohibits cer-
tain practices aimed at inducing a person to reveal personally
identifying information. Wash. Rev. Code § 19.190.080. Like
its federal counterpart, CEMA provides for sizeable statutory
damages or actual damages, whichever is greater.16 Wash.
Rev. Code § 19.190.040.
A
At the outset, we must frame the issue as it comes to us.
First, Virtumundo does not contest Gordon’s standing to bring
CEMA claims. In contrast to the more restrictive standing
requirement of the CAN-SPAM Act, CEMA authorizes a
recipient of a commercial e-mail message or an “interactive
computer service” to bring a private action. Id.16
CEMA provides for greater per-violation statutory damages than the
CAN-SPAM Act. A recipient of commercial e-mail or electronic text mes-
sages may recover $500 per violation, and an “interactive computer ser-
vice” may recover $1,000 per violation. Wash. Rev. Code § 19.190.040.
An “interactive computer service” is defined as “any information service,
system, or access software provider that provides or enables computer
access by multiple users to a computer server, including specifically a ser-
vice or system that provides access to the internet and such systems oper-
ated or services offered by libraries or educational institutions.” Wash.
Rev. Code § 19.190.010(8).
GORDON v. VIRTUMUNDO, INC. 10511
Of Gordon’s various CEMA claims on appeal, only his
claim relating to allegedly deficient headers requires detailed
discussion. Gordon has no viable CEMA claim based on the
body of the e-mail messages at issue. Unlike the CAN-SPAM
Act, CEMA “does not regulate the body of the e-mail.” State
v. Heckel, 93 P.3d 189, 194 (Wash. Ct. App. 2004), review
denied, 108 P.3d 1229 (Wash. 2005) (“Heckel II”). Similarly,
the state statute does not purport to regulate “opt-out” mecha-
nisms. Therefore, Gordon’s CEMA claims, by nature of the
state statute, are limited to the information contained in the e-
mail headers and subject lines.
We further conclude, however, that summary judgment was
properly granted on Gordon’s claim that Virtumundo’s e-mail
subject lines are deceptive. In opposition to Virtumundo’s
summary judgment motion, Gordon failed to identify or
describe any specific e-mail or subject line text and simply
countered that “Gordon contests” the position that the subject
lines are not misleading. Gordon does not attempt to better
articulate this claim on appeal.
[15] The “party opposing summary judgment must direct
[the court’s] attention to specific, triable facts,” S. Cal. Gas
Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003),
and the reviewing court is “not required to comb through the
record to find some reason to deny a motion for summary
judgment,” Carmen v. San Francisco Unified Sch. Dist., 237
F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac.
Nw. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). See
Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th
Cir. 2003) (“[The nonmoving party] cannot defeat summary
judgment with allegations in the complaint, or with unsup-
ported conjecture or conclusory statements.”). Because Gor-
don has failed to present a prima facie case in opposition to
summary judgment, his claim that Virtumundo’s subject lines
violate CEMA fails as a matter of law, and summary judg-
ment was appropriate.
10512 GORDON v. VIRTUMUNDO, INC.
Therefore, the sole remaining CEMA claim that we must
address relates to the headers of Virtumundo’s e-mails. Gor-
don argues that the header information misrepresents or
obscures the identity of the sender, and therefore violates
CEMA, see Wash. Rev. Code § 19.190.020(1)(a). We review
the district court’s conclusion that this claim is preempted
pursuant to the CAN-SPAM Act’s express preemption clause,
15 U.S.C. § 7707(b).
B
1
As a preliminary matter, the Attorney General for the State
of Washington (“State”), appearing here as amicus curiae,
insists that we need not reach the preemption issue. See Atel
Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir.
2003) (“We may affirm a district court’s judgment on any
ground supported by the record, whether or not the decision
of the district court relied on the same grounds or reasoning
we adopt.”). The State argues that we may affirm summary
judgment with respect to this CEMA claim because Gordon’s
allegations regarding the header information do not satisfy
“Washington’s well-developed deceptiveness standard,” as a
matter of law. We have surveyed the legal landscape and note
a fatal shortcoming in the State’s proposition. CEMA prohib-
its the sending of commercial e-mail that “misrepresents or
obscures any information in identifying the point of origin or
the transmission path.” Wash. Rev. Code § 19.190.020(1)(a).
The standard for “deception” under Washington law is thus
only relevant to the extent courts so limit the broad language
of CEMA—a critical step that the State overlooks entirely.
In Benson v. Oregon Processing Service, Inc., 150 P.3d 154(Wash. Ct. App. 2007), review denied, 175 P.3d 1092 (Wash.
2007), the state appellate court interpreted the previously
undefined terms “misrepresent” and “obscure” according to
their ordinary dictionary meaning—i.e., “misrepresent” to
GORDON v. VIRTUMUNDO, INC. 10513
mean “representing incorrectly: to give a false, imperfect or
misleading representation,” and “obscure” to mean “to con-
ceal or hide from view as by or as if covering wholly or in
part: make difficult to discern.” Id. at 156 (quoting Webster’s
Third New Int’l Dictionary 1445 & 1557 (2003)). These broad
definitions extend CEMA’s prohibitive reach and purport to
regulate a vast array of non-deceptive acts and practices. As
subsequent courts reviewing CEMA have recognized, without
further clarification, “a sender of commercial email could be
potentially held liable under [CEMA] for unintentional cleri-
cal errors,” Fergusen, 2008 WL 3166307, at *8, imperfect
representations, or immaterial misstatements.
[16] In short, we cannot conclude, as the State presumes,
that CEMA’s prohibitions extend only to acts of deception.
The Washington Legislature or state courts may ultimately
mold CEMA’s broad language so as to cabin its breadth or
interpret the law in conformity with federal legislation. This
task is, however, a matter for the State, as sovereign, to resolve.17
17
We acknowledge, however, that the State’s proposed interpretation is
not unfounded. Some state court decisions imply a narrow interpretation
of CEMA. See State v. Heckel, 24 P.3d 404, 412-13 (Wash. 2001) (en
banc) (“Heckel I”) (commenting that “[CEMA] reaches only those decep-
tive [unsolicited commercial e-mail] messages directed to a Washington
resident or initiated from a computer located in Washington”); Heckel II,
93 P.3d at 193-94 (affirming the judgment and permanent injunction in
favor of the State and remarking that “the Act is narrowly tailored to regu-
late only deceptive commercial speech, which is not protected by the First
Amendment”). Moreover, the provision at issue is titled “Unpermitted or
misleading electronic mail,” Wash. Rev. Code § 19.190.020 (emphasis
added), which suggests that CEMA’s prohibition extends only to decep-
tive commercial e-mail. See Bhd. of R.R. Trainmen v. Baltimore & Ohio
R.R. Co., 331 U.S. 519, 528-29 (1947) (noting that the title of a statute and
the heading of a section may help “shed light on some ambiguous word
or phrase”). This reading also finds support in the statute’s intersection
with Washington’s consumer protection laws. See Wash. Rev. Code
§§ 19.190.030(3) and 19.190.100. Logic dictates that by equivocating vio-
lations of CEMA to violations of the CPA, the Washington Legislature
intended to adopt the CPA’s deceptiveness standard.
10514 GORDON v. VIRTUMUNDO, INC.
2
We therefore turn, as we must, to whether summary judg-
ment was proper under the doctrine of preemption. As
recently noted by a district court, “[t]here is no Ninth Circuit
authority on whether Plaintiff’s claim under the provision of
CEMA . . . is preempted by CAN-SPAM.” Fergusen, 2008
WL 3166307, at *7. Indeed, the scope of the CAN-SPAM
Act’s preemption is an issue of first impression in this circuit.
See ASIS Internet Servs. v. Consumerbargaingiveaways, LLC,
No. 08-04856, 2009 WL 1035538, at *5 (N.D. Cal. Apr. 17,
2009).
The concept of preemption derives from the Supremacy
Clause of the United States Constitution, which provides that
the laws of the United States “shall be the supreme Law of the
Land; . . . any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
“Consistent with that command, we have long recognized that
state laws that conflict with federal law are ‘without effect.’ ”
Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quot-
ing Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). Courts
typically identify three circumstances in which federal pre-
emption of state law exists:
(1) express preemption, where Congress explicitly
defines the extent to which its enactments preempt
state law; (2) field preemption, where state law
attempts to regulate conduct in a field that Congress
intended the federal law exclusively to occupy; and
(3) conflict preemption, where it is impossible to
comply with both state and federal requirements, or
where state law stands as an obstacle to the accom-
plishment and execution of the full purpose and
objectives of Congress.
Indus. Truck Ass’n, 125 F.3d at 1309 (citing English v. Gen.
Elec. Co., 496 U.S. 72, 78-80 (1990)). When interpreting the
GORDON v. VIRTUMUNDO, INC. 10515
scope of an express preemption clause, as is the case here, we
must “identify the domain expressly pre-empted” by its lan-
guage. Medtronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996)
(quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517
(1992)).
Although the analysis of the scope of preemption begins
with the text, “interpretation of that language does not occur
in a contextual vacuum.” Id. at 484-85. Rather, this inquiry is
guided by two principles about the nature of preemption.
First, there is a presumption against supplanting “the historic
police powers of the States” by federal legislation “unless that
[is] the clear and manifest purpose of Congress.” Id. at 485.
“This presumption against preemption leads us to the princi-
ple that express preemption statutory provisions should be
given narrow interpretation.” Air Conditioning & Refrigera-
tion Inst. v. Energy Res. Conservation & Dev. Comm’n, 410
F.3d 492, 496 (9th Cir. 2005). Second, the preemption analy-
sis is guided by the “oft-repeated comment . . . that the pur-
pose of Congress is the ultimate touchstone in every
preemption case.” Medtronic, 518 U.S. at 485 (quotations and
brackets omitted). “As a result, any understanding of the
scope of a pre-emption statute must rest primarily on a fair
understanding of congressional purpose,” and calls for courts
to consider not only the language of the statute itself but also
the “statutory framework” surrounding it and the “structure
and purpose of the statute as a whole.” Id. at 485-86 (quota-
tions omitted); accord Altria Group, 129 S. Ct. at 543(“Congress may indicate pre-emptive intent through a stat-
ute’s express language or through its structure and purpose.”).
With this framework in mind, we review the preemption
clause of the CAN-SPAM Act, which states in relevant part:
This chapter supersedes any statute, regulation, or
rule of a State or political subdivision of a State that
expressly regulates the use of electronic mail to send
commercial messages, except to the extent that any
10516 GORDON v. VIRTUMUNDO, INC.
such statute, regulation, or rule prohibits falsity or
deception in any portion of a commercial electronic
mail message or information attached thereto.
15 U.S.C. § 7707(b)(1). The following subsection adds further
clarity: Congress reiterated that the preemption clause “shall
not be construed to preempt the applicability of—(A) State
laws that are not specific to electronic mail, including State
trespass, contract, or tort law; or (B) other State laws to the
extent that those laws relate to acts of fraud or computer
crime.” 15 U.S.C. § 7707(b)(2) (emphasis added). Thus, the
express language of § 7707(b) demonstrates Congress’s intent
that the CAN-SPAM Act broadly preempt state regulation of
commercial e-mail with limited, narrow exception. Congress
carved out from preemption state laws that proscribe “falsity
or deception” in commercial e-mail communications.
To date, the Fourth Circuit’s opinion in Omega World
Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348 (4th Cir.
2006), is the only federal circuit court decision addressing
preemption of state law claims by the CAN-SPAM Act. In
Omega, Mummagraphics alleged violations of the CAN-
SPAM Act and Oklahoma law, see Okla. Stat. tit. 15,
§ 776.1(A),18 based on e-mail messages that contained a vari-
ety of inaccuracies.19 Omega, 469 F.3d at 351. The Fourth
Circuit reviewed the scope of the CAN-SPAM Act’s preemp-
18
The Oklahoma statute prohibited the initiation of an e-mail message
that the sender knows or has reason to know “[m]isrepresents any infor-
mation in identifying the point of origin or the transmission path of the
electronic mail message,” “[d]oes not contain information identifying the
point of origin or the transmission path of the electronic mail message,”
or “[c]ontains false, malicious, or misleading information which purposely
or negligently injures a person.” Okla. Stat. tit. 15, § 776.1(A).
19
As a matter of clarity, the district court’s summary judgment order
mistakenly refers to Mummagraphics as the “plaintiff.” Mummagraphics
was a defendant in the underlying lawsuit and had alleged violations of the
CAN-SPAM Act and Oklahoma law as counterclaims against plaintiff,
Omega World Travel. Omega, 469 F.3d at 352.
GORDON v. VIRTUMUNDO, INC. 10517
tion provision and concluded that Congress could not have
intended, by way of the carve-out language, to allow states to
enact laws that prohibit “mere error” or “insignificant inaccu-
racies.” Id. at 354-55. The court reasoned that a materiality
component comported with the policy pursued by the federal
legislation as a whole, further noting that a contrary reading
“would upend [the] balance [struck by Congress] and turn an
exception to a preemption provision into a loophole so broad
that it would virtually swallow the preemption clause itself.”
Id. at 355. Ultimately, the court determined that the chal-
lenged e-mails could not be actionable under the Oklahoma
statutes “because allowing a state to attach liability to bare
immaterial error in commercial e-mails would be inconsistent
with the federal Act’s preemption text and structure, and, con-
sequently, with a ‘fair understanding of congressional pur-
pose.’ ” Id. at 359 (quoting Medtronic, 518 U.S. at 486).
Having independently analyzed the CAN-SPAM Act’s text,
structure, and legislative purpose, we reach the same conclu-
sion as the district court and the Fourth Circuit,20 and interpret
the CAN-SPAM Act’s express preemption clause in a manner
that preserves Congress’s intended purpose—i.e., to regulate
commercial e-mail “on a nationwide basis,” 15 U.S.C.
§ 7701(b)(1), and to save from preemption only “statutes, reg-
ulations, or rules that target fraud or deception,” S. Rep. No.
108-102, at 21 (emphasis added).
As with any issue of statutory interpretation, we start with
the text itself. The CAN-SPAM Act’s preemption clause
makes an exception for state laws that prohibit “falsity or
deception” in commercial e-mail communication. 15 U.S.C.
§ 7707(b)(1). Because those terms are not defined in the stat-
ute, they should be given their ordinary meaning. Emmert
20
Our reliance on Omega is limited to the Fourth Circuit’s interpretation
of the CAN-SPAM Act’s preemption clause. We pass no judgment on
whether summary judgment was appropriate based on the unique facts of
that particular case.
10518 GORDON v. VIRTUMUNDO, INC.
Indus. Corp. v. Artisan Assocs., Inc., 497 F.3d 982, 987 (9th
Cir. 2007). Whereas the word “deception” certainly denotes
something more than immaterial inaccuracies or inadvertent
mistakes, the word “falsity” is susceptible to differing dictio-
nary meanings. “Falsity” means “quality or state of being
false,” which is not itself informative. Merriam-Webster’s
Collegiate Dictionary 451 (11th ed. 2005). The term “false”
is defined, however, not only as “not true” but also as “inten-
tionally untrue,” “adjusted or made so as to deceive,” and “in-
tended or tending to mislead.” Id. We therefore acknowledge
facial ambiguity in the statutory text. See Bryan A. Garner,
Dictionary of Modern Legal Usage 348 (2d ed. 1995) (stating
that “false” “is potentially ambiguous, since the word may
mean either “erroneous, incorrect” or “purposely deceptive”);
Bryan A. Garner, Garner’s Modern Am. Usage 339 (2003)
(same).
Recognizing the same ambiguity, the Fourth Circuit applied
the maxim of noscitur a sociis, a canon of statutory construc-
tion that “counsels that a word is given more precise content
by the neighboring words with which it is associated.” United
States v. Williams, 128 S. Ct. 1830, 1839 (2008). Reading
“falsity” in conjunction with “deception,” which connotes a
type of tort action based on misrepresentations, we are like-
wise persuaded that the exception language, read as Congress
intended, refers to “traditionally tortious or wrongful con-
duct.” Omega, 469 F.3d at 354. We find further support for
this reading in the statutory text, which counsels against any
interpretation that preempts laws relating to “acts of fraud.”
See 15 U.S.C. § 7707(b)(2). Indeed, the Committee explained
that while “a State law requiring some or all commercial e-
mail to carry specific types of labels, or to follow a certain
format or contain specified content, would be preempted[,]
. . . a State law prohibiting fraudulent or deceptive headers,
subject lines, or content in commercial e-mail would not be
preempted.” S. Rep. No. 108-102, at 21 (emphasis added); see
also 150 Cong. Rec. at E73-01 (recognizing broad preemp-
tion, except state laws prohibiting falsification techniques and
GORDON v. VIRTUMUNDO, INC. 10519
deception). The Committee’s repeated reference to “fraud”
and “deception” is telling and confirms that Congress did not
intend that states retain unfettered freedom to create liability
for immaterial inaccuracies or omissions.
Further scrutiny of congressional intent solidifies our read-
ing of the preemption clause. As discussed supra, the CAN-
SPAM Act prohibits only deceptive subject line headings or
materially false or materially misleading header information.
See 15 U.S.C. § 7704(a); accord 15 U.S.C. § 7701(b)(2)
(“[S]enders of commercial electronic mail should not mislead
recipients as to the source or content of such mail.” (emphasis
added)). Significantly, Congress intended this standard to reg-
ulate commercial e-mail messaging practices “on a nation-
wide basis.”21 15 U.S.C. § 7701(b)(1). It was because the
patchwork of state laws had proven ineffective that Congress
sought to implement “one national standard,” S. Rep. No.
108-102, at 21, applicable across jurisdictions. The CAN-
SPAM Act expresses this goal:
Many states have enacted legislation intended to reg-
ulate or reduce unsolicited commercial electronic
mail, but these statutes impose different standards
and requirements. As a result, they do not appear to
have been successful in addressing the problems
associated with unsolicited commercial electronic
mail, in part because, since an electronic mail
address does not specify a geographic location, it can
be extremely difficult for law-abiding businesses to
know with which of these disparate statutes they are
required to comply.
21
The State argues that this policy goal does not extend to illegitimate
commercial behavior, such as unfair or deceptive business practices. This
argument, however, begs the question. Whether the exception language of
§ 7707(b) permits states to prohibit e-mail activity that is not unfair or
deceptive is precisely the issue before us.
10520 GORDON v. VIRTUMUNDO, INC.
15 U.S.C. § 7701(a)(11); see also S. Rep. No. 108-102, at
21-22 (“[I]n contrast to telephone numbers, e-mail addresses
do not reveal the State where the holder is located. As a result,
a sender of e-mail has no easy way to determine with which
State law to comply.”). Moreover, a single e-mail could
instantaneously implicate the laws of multiple jurisdictions as
it journeys through cyberspace, traveling over various facili-
ties before reaching its intended recipient, whose location is
often unknown. Therefore, “one state’s Internet laws may
impose compliance costs on businesses throughout the coun-
try.” Omega, 469 F.3d at 356 (citing PSINet, Inc. v. Chap-
man, 362 F.3d 227, 239-41 (4th Cir. 2004)). The CAN-SPAM
Act was designed to ensure that “legitimate businesses would
not have to guess at the meaning of various state laws when
their advertising campaigns ventured into cyberspace.” Kleff-
man v. Vonage Holdings Corp., No. 07-2406, 2007 WL
1518650, at *3 (C.D. Cal. May 23, 2007) (concluding that the
CAN-SPAM Act preempted California state law claims).
[17] It would be logically incongruous to conclude that
Congress endeavored to erect a uniform standard but simulta-
neously left states and local lawmakers free to manipulate that
standard to create more burdensome regulation. We are com-
pelled to adopt a reading of the preemption clause that con-
forms with the statute’s structure as a whole and the stated
legislative purpose. See 15 U.S.C. § 7701(b)(1). The CAN-
SPAM Act established a national standard, but left the indi-
vidual states free to extend traditional tort theories such as
claims arising from fraud or deception to commercial e-mail
communication. To find otherwise would create “an exception
to preemption [that] swallow[s] the rule and undermine[s] the
regulatory balance that Congress established,” Omega, 469
F.3d at 356, and which would once again subject legitimate
businesses to inconsistent and possibly incompatible state reg-
ulations.
Applying its proper reading, the CAN-SPAM Act’s pre-
emption clause applies here and undermines Gordon’s
GORDON v. VIRTUMUNDO, INC. 10521
remaining CEMA claim. Although he admits he was not in
any way misled or deceived, Gordon argues that the headers
in the e-mails at issue—specifically, the “from lines”—violate
CEMA because they fail to clearly identify Virtumundo as the
e-mails’ sender and therefore misrepresent or obscure the
identity of the sender. See Wash. Rev. Code
§ 19.190.020(1)(a). The “from lines” at issue contain two
components: a “from name” field, which typically references
a topic or subject matter of the advertisement, and a domain
name. Examples of “from lines” condemned by Gordon
include “CriminalJustice@vm-mail.com,” “PublicSafetyDe-
grees@vmadmin.com,” and “TradeIn@vm-mail.com.”
There is of course nothing inherently deceptive in Virtu-
mundo’s use of fanciful domain names. See 15 U.S.C.
§ 7702(4); S. Rep. No. 108-102, at 3 (recognizing Microsoft’s
“msn” and “hotmail” domains used for e-mail services). Gor-
don agrees that the domains from which these e-mails were
sent—e.g., “vmmail.com,” “vmadmin.com,” “vtarget.com,”
and “vmlocal.com”—were properly registered to Virtumundo.
Gordon further concedes that a WHOIS search, or a similar
reverse-look-up database, accurately identifies Virtumundo as
the domain registrant and provides other identifying informa-
tion.22 Gordon complains that in order to ascertain the actual
identity of the e-mails’ sender a recipient must either review
the message content or consult a WHOIS-type database. He
insists that any practice that requires consumers to engage in
an extra step violates CEMA.
[18] Nothing contained in this claim rises to the level of
“falsity or deception” within the meaning of the CAN-SPAM
22
WHOIS is a publically available online database through which users
can access information regarding domains, including the registrant’s
name, address, phone number, and e-mail address. See Definitions, Imple-
mentation, and Reporting Requirements Under the CAN-SPAM Act, 70
Fed. Reg. 25,426, 25,446 n.233 (proposed May 12, 2005) (to be codified
at 16 C.F.R pt. 316). WHOIS data is compiled by registrars from informa-
tion submitted by registrants.
10522 GORDON v. VIRTUMUNDO, INC.
Act’s preemption clause. Gordon offers no proof that any
headers have been altered to impair a recipient’s ability to
identify, locate, or respond to the person who initiated the e-
mail. Nor does he present evidence that Virtumundo’s prac-
tice is aimed at misleading recipients as to the identity of the
sender. Cf. Aitken v. Commc’ns Workers of Am., 496 F. Supp.
2d 653, 667 (E.D. Va. 2007) (holding that “it is inappropriate
to conclude, as a matter of law, that the misleading header
information is immaterial” where the defendant misappropri-
ated identities of managers to send “pro-union” e-mails to
employees). As stated by our district court, Gordon’s claim is
“for, at best, ‘incomplete’ or less than comprehensive infor-
mation” regarding the sender. Gordon, 2007 WL 1459395, at
*12. Such technical allegations regarding the header informa-
tion find no basis in traditional tort theories and therefore fall
beyond the ambit of the exception language in the CAN-
SPAM Act’s express preemption clause.
Gordon further suggests that the only information that
could be used in the “from name” field that would not misrep-
resent is the name of the “person or entity who actually sent
the e-mail, or perhaps . . . the person or entity who hired the
[sender] to send the email on their behalf.” In other words, he
argues that CEMA’s provisions require that “Virtumundo” or
a client’s name expressly appear in the “from lines.” The
CAN-SPAM Act does not impose such a requirement. To the
extent such a content or labeling requirement may exist under
state law, it is clearly subject to preemption. See S. Rep. No.
108-102, at 21-22 (“State law requiring some or all commer-
cial e-mail to carry specific types of labels . . . or contain
specified content, would be preempted.”); see also Kleffman,
2007 WL 1518650, at *3 (“[T]he claim that the failure to
include Vonage’s name in the email is clearly preempted.”).
[19] In sum, Gordon’s alleged header deficiencies relate to,
at most, non-deceptive statements or omissions and a height-
ened content or labeling requirement. Regardless of the merits
of his arguments, assuming they are actionable under CEMA,
GORDON v. VIRTUMUNDO, INC. 10523
such state law claims falter under the weight of federal pre-
emption. Summary judgment was properly entered on Gor-
don’s CEMA claims.23
V
Gordon also appeals summary judgment of his claim that
Virtumundo violated the Washington CPA, which generally
prohibits “[u]nfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or com-
merce.” Wash. Rev. Code. § 19.86.020.24 A plaintiff must typ-
23
The State argues against preemption, citing Beyond Systems, Inc. v.
Keynetics, Inc., 422 F. Supp. 2d 523 (D. Md. 2006). The district court
there denied defendants’ motion to dismiss, concluding that the CAN-
SPAM Act did not preempt Maryland’s Commercial Electronic Mail Act,
Md. Code Ann., Com. Law § 14-3001 et seq. (“MCEMA”), a statute mod-
eled after Washington’s CEMA. Id. at 532 n.11 & 537—38. The State,
without offering much in the way of independent analysis or explanation,
contends that “[b]ecause CEMA is substantially identical to MCEMA, this
Court should apply the same preemption analysis and find that CEMA is
not preempted by CAN-SPAM.” We decline this invitation.
Notwithstanding the non-precedential nature of a district court opinion
from another circuit, see United States v. Ensminger, 567 F.3d 587, 591
(9th Cir. 2009), we find Beyond Systems to be of no persuasive value here.
Unlike the Maryland district court, we are reviewing summary judgment
on a well-developed record. More significantly, however, we view its pre-
emption analysis as flawed. Without considering the factual allegations
underlying the plaintiff’s claims, the court there held that MCEMA was
not inconsistent with the goals of the CAN-SPAM Act and that “insofar
as a state statute is not inconsistent with CAN-SPAM, it will not be
deemed pre-empted.” Beyond Sys., 422 F. Supp. 2d at 537-38. The Mary-
land court not only fundamentally misconstrued the legislative purpose of
the federal act, its analysis also belies the doctrine of express preemption.
Indeed, the sole authority upon which the court relied dealt with field
preemption—not, as was the case before it (or as is the case here), express
preemption. See Colo. Anti-Discrimination Comm’n v. Continental Air
Lines, 372 U.S. 714, 723 (1963) (finding “no express or implied [congres-
sional] intent to bar state legislation in this field” and upholding a state
statute barring discriminatory hiring practices by airlines).
24
The CAN-SPAM Act does not preempt CPA claims generally. The
preemption clause states that the federal act will not preempt the applica-
bility of state laws not specific to commercial e-mail. 15 U.S.C.
§ 7707(b)(2).
10524 GORDON v. VIRTUMUNDO, INC.
ically prove five elements to establish a CPA violation: (1) an
unfair or deceptive act or practice, (2) in trade or commerce,
(3) that impacts the public interest, (4) which causes injury to
the party in his business or property, and (5) the injury must
be causally linked to the unfair or deceptive act. Hangman
Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d
531, 535-37 (Wash. 1986). A violation of CEMA, however,
likely constitutes a per se CPA violation.25 See Wash. Rev.
Code § 19.190.030; Heckel I, 24 P.3d at 407 (“RCW
19.190.030 makes a violation of [CEMA] a per se violation
of the [CPA] . . . .”).
[20] Gordon primarily relies upon alleged CEMA viola-
tions to establish his CPA claim. Because his CEMA claims
fail as a matter of law, his CPA claims, to the extent grounded
in CEMA violations, are likewise inadequate and were prop-
erly dismissed.
[21] To the extent that Gordon also brings independent
CPA claims, they too fail. Gordon has failed to identify an act
or practice that “misleads or misrepresents something of
material importance.” Nguyen v. Doak Homes, Inc., 167 P.3d
1162, 1166 (Wash. Ct. App. 2007) (emphasis added); accord
Robinson v. Avis Rent A Car Sys., Inc., 22 P.3d 818, 824
(Wash. Ct. App. 2001) (“[K]nowing failure to reveal some-
25
Section 19.190.030 states, in relevant part:
(1) It is a violation of the consumer protection act, chapter 19.86
RCW, to conspire with another person to initiate the transmission
or to initiate the transmission of a commercial electronic mail
message that:
(a) Uses a third party’s internet domain name without permis-
sion of the third party, or otherwise misrepresents or obscures
any information in identifying the point of origin or the transmis-
sion path of a commercial electronic mail message; or
(b) Contains false or misleading information in the subject
line.
Wash. Rev. Code § 19.190.030.
GORDON v. VIRTUMUNDO, INC. 10525
thing of material importance is ‘deceptive’ within the CPA.”).
Because Gordon’s CPA claims are not predicated on unfair or
deceptive conduct that has “the capacity to deceive a substan-
tial portion of the public,” Hangman Ridge, 719 P.2d at 535,
summary judgment was appropriate. See Carlile v. Harbour
Homes, Inc., 194 P.3d 280, 289 (Wash. Ct. App. 2008) (con-
firming that whether an act is unfair or deceptive is a question
of law).
Additionally, in order to succeed on a CPA claim, “[a]
plaintiff must establish that, but for the defendant’s unfair or
deceptive practice, the plaintiff would not have suffered an
injury.” Indoor Billboard/Wash., Inc. v. Integra Telecom of
Wash., Inc., 170 P.3d 10, 22 (Wash. 2007). Here, Gordon
seeks only statutory damages and, despite more than adequate
opportunity, has made no attempt to show that Virtumundo
proximately caused him actual harm. Because Gordon has
failed in his burden to provide sufficient evidence to establish
an essential element of this cause of action, his CPA claims
must also fail as a matter of law. See River City Markets, Inc.
v. Fleming Foods West, Inc., 960 F.2d 1458, 1462 (9th Cir.
1992).
VI
We briefly address Gordon’s remaining arguments and
assignments of error on appeal. His claim that summary judg-
ment violated the Seventh Amendment is devoid of merit. “As
the Supreme Court held, over one hundred years ago, a sum-
mary judgment proceeding does not deprive the losing party
of its Seventh Amendment right to a jury trial.” In re Slatkin,
525 F.3d 805, 811 (9th Cir. 2008) (citing Fid. & Deposit Co.
of Md. v. United States, 187 U.S. 315, 319-21 (1902)). Fur-
ther, Gordon, dissatisfied with the result in the Western Dis-
trict of Washington, cannot now challenge his initial choice
of venue on appeal. See generally Olberding v. Ill. Cent. R.R.
Co., 346 U.S. 338, 340 (1953) (noting that the plaintiff relin-
quishes his right to object to venue by bringing his lawsuit in
10526 GORDON v. VIRTUMUNDO, INC.
a particular district). Finally, we decline to entertain Gordon’s
poorly articulated argument that the CAN-SPAM Act is
unconstitutional under the Fourth and Fourteenth Amend-
ments. See Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th
Cir. 1996). This constitutional challenge was neither raised
before the district court, nor pressed in the reply brief or at
oral argument. We reject these and any additional arguments
possibly buried in Gordon’s briefing not expressly addressed
herein. See Indep. Towers of Wash. v. Washington, 350 F.3d
925, 929 (9th Cir. 2003) (repeating the now familiar maxim:
“[j]udges are not like pigs, hunting for truffles buried in
briefs” (quoting United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991))).
VII
In summary, Gordon lacks statutory standing to bring a pri-
vate action for alleged violations of the CAN-SPAM Act. His
state law claims fail as a matter of law because they are pre-
cluded by the Act’s express preemption clause and because he
has failed to demonstrate that a genuine issue of material fact
exists. Accordingly, we affirm the district court’s order of
summary judgment.
All parties shall bear their own costs on appeal.
AFFIRMED.
GOULD, Circuit Judge, concurring:
The most pertinent conclusion for me in this case, one that
I reach after a careful evaluation of the district court’s com-
prehensive factual findings and cogent legal analysis, is that
Gordon was seeking to use the CAN-SPAM Act to build a lit-
igation factory for his personal financial benefit. For the rea-
sons amply explained by Judge Tallman’s fine opinion, the
GORDON v. VIRTUMUNDO, INC. 10527
ways in which Gordon inserted himself into legal controversy
here require conclusions that he is not an Internet access ser-
vice (“IAS”) provider and that he was not adversely affected
by spam. Each of these conclusions is independently suffi-
cient to deny Gordon statutory standing to assert his claims,
and each conclusion requires our affirmance of the district
court’s summary judgment order.
I write separately to add this comment. In the long course
of Anglo-American law, development of the common law has
normally occurred in ways that gave legal remedies to persons
who cried out for relief against a perceived injustice. See ,
e.g., Oliver Wendell Holmes, Jr., The Common Law 37
(Dover Pubs. 1991) (1881) (“[T]he various forms of liability
known to modern law spring from the common ground of
revenge.”). The body of the common law that we know as
contract law developed from the need to provide remedies
when certain promises were broken and more ancient com-
mon law writs were inadequate. See id. at 274-75 (tracing his-
tory of contracts to the writ of “trespass on the case,” which
developed because “there were many cases which did not
exactly fall within the definition of trespass, but for which it
was proper that a remedy should be furnished”). Similarly,
tort law has for centuries expanded1 to cover new types of
claims where wrong had caused damage. See id. at 162-63
(stating that tort law is “continually adding to its specific
rules” based on “[t]he tendency of a given act to cause harm
under given circumstances,” rules “which must be determined
by experience”).
1
An example of this expansion is seen in Judge Cardozo’s famous opin-
ion in MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916), which
did much to influence the demise of the privity barrier and opened the way
for claims by any person injured by a manufacturer’s negligence. See Dan
B. Dobbs, The Law of Torts § 353 (2001) (“Judge Cardozo substantially
abolished the privity rule for negligence cases in the famous MacPherson
case . . . .” ).
10528 GORDON v. VIRTUMUNDO, INC.
In both contract and tort claims for damages, the common
law always required a showing of damages proximately
caused by the wrong as an element of the claim. See Hadley
v. Baxendale, 9 Exch. 341 (1854) (holding that contract dam-
ages must either “aris[e] naturally” or “reasonably be sup-
posed to have been . . . the probable result of the breach of
[the contract]”); Dan B. Dobbs, The Law of Torts § 377
(2001) (“In personal injury cases, the normal remedy is com-
pensatory damages . . . for all losses that have proximately
resulted from the tort and all losses that will so result in the
future.”). The branch of the common law known in England
as chancery jurisdiction, which also developed in the colonies
and in the early United States, was concerned with providing
an equitable remedy to injured persons when common law
damage remedies were inadequate. See Joseph Story, Chan-
cery Jurisdiction: An Article Written for the North American
Review, in 1820, on the Reports of Mr. Johnson, The Miscel-
laneous Writings of Joseph Story 165 (William W. Story ed.,
2000) (1852) (stating that courts of equity are necessary
because “[t]here are many cases in which the parties are with-
out remedy at law, or in which the remedy is wholly inade-
quate to the attainment of justice”).
Thus the common law developed ample remedies for per-
sons who had suffered grievous harms, but, as I understand
the history of our common law, it did not develop remedies
for people who gratuitously created circumstances that would
support a legal claim and acted with the chief aim of collect-
ing a damage award.2 See Charles T. McCormick, Law of
2
Here of course we deal with a statute, the CAN-SPAM Act, and it is
sometimes thought that statutory law is separate from the common law.
However, on close examination, many distinctions between common law
and statutory law disappear. The English common law, for example, was
built in part upon ancient statutory law which, even once it was no longer
applicable, had created usages and customs from which the common law
developed. See, e.g., Sir Matthew Hale, The History of the Common Law
of England, ch. 1, (Charles M. Gray ed., 1971) (1713) (“[M]any of those
GORDON v. VIRTUMUNDO, INC. 10529
Damages § 33 (1935) (“[T]he rules for awarding damages
should be such as to discourage even persons against whom
wrongs have been committed from passively suffering eco-
nomic loss which could be averted by reasonable efforts, or
from actively increasing such loss where prudence would
require that such activity cease.”). I believe that the same
principles that animated the common law influenced Congress
when it enacted the CAN-SPAM Act. That Congress explic-
itly limited claims to a subset of individuals or entities who
were “adversely affected” by the proscribed conduct shows
that Congress did not aim to provide a remedy to anyone or
any entity who sought out a position where the alleged harm
might inevitably occur. But, for a person seeking to operate
a litigation factory, the purported harm is illusory and more
in the nature of manufactured circumstances in an attempt to
enable a claim. In my view, manufactured claims should not
be tolerated absent a clear endorsement from Congress. Such
claims would not likely have been recognized at common law,
and Congress here wisely excluded them.
Judge Tallman’s opinion rightly focuses on language in the
legislative history stating that only bona fide IAS providers
should have statutory standing. I would presume a bona fide
requirement even without this legislative history because
Congress provided a private right of action for CAN-SPAM
Things that now obtain as Common Law, had their Original by Parliamen-
tary Acts or Constitutions, made in Writing by the King, Lords and Com-
mons; though those Acts are now either not extant, or if extant, were made
before Time of Memory . . . .” ); 2 Sir William Searle Holdsworth, A His-
tory of English Law 145-46 (3d ed. 1922) (discussing formation of English
common law after the Norman Conquest and concluding that “the influ-
ence of the civil and canon law is perhaps the most important of all the
external influences which have shaped the development of English law”).
Similarly, when we consider statutory law, the United States Supreme
Court has told us that we are to presume that Congress has acted with
knowledge of the prior common law. See Astoria Federal Sav. and Loan
Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (“Congress is understood to
legislate against a background of common-law adjudicatory principles.”).
10530 GORDON v. VIRTUMUNDO, INC.
violations but expressly limited it to certain individuals and
entities. Given this limited private right of action, statutory
standing should be denied to plaintiffs such as Gordon who
purposely structure themselves to look like one of the limited
entities eligible to sue but do so for the primary purpose of
collecting damages and settlements from litigation. Such indi-
viduals trying to game the system do not fall into the limited
class to which Congress made available a private remedy, and
ordinarily they should be denied statutory standing. That the
legislative history specifies bona fide IAS providers strength-
ens our conclusion that Gordon’s suit should be dismissed,
but the legislative history is not necessary to reach this con-
clusion in light of the common-law antecedents that do not
favor manufactured claims.
There are a few areas in which our developing statutory law
has embraced the concept of permitting claims by those who
insert themselves in the controversy for the express purpose
of creating a lawsuit. One of the best examples is that we
accord standing to those who “test” for discrimination in
housing by feigning interest in a housing site. See, e.g.,
Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74
(1982). There may be good reasons for allowing this practice
as a way to strengthen the enforcement of housing discrimina-
tion laws, and Congress provided a broad standing provision
for private actors. In permitting standing for testers, the
Supreme Court reasoned that Congress “conferred on all ‘per-
sons’ a legal right to truthful information about available
housing” and “plainly omitted” a “bona fide” requirement for
standing when it explicitly required one elsewhere in the same
section of the fair housing statute. Id.Similarly, we accord standing to individuals who sue
defendants that fail to provide access to the disabled in public
accommodation as required by the Americans with Disabili-
ties Act (“ADA”), even if we suspect that such plaintiffs are
hunting for violations just to file lawsuits. See Molski v. Ever-
green Dynasty Corp., 500 F.3d 1047, 1061-62 (9th Cir. 2007)
GORDON v. VIRTUMUNDO, INC. 10531
(per curiam) (“For the ADA to yield its promise of equal
access for the disabled, it may indeed be necessary and desir-
able for committed individuals to bring serial litigation
advancing the time when public accommodations will be
compliant with the ADA.”). There, too, however, Congress
provided standing to “any person” subjected to disability dis-
crimination in violation of the ADA, and it also did not
expressly require a showing of injury or adverse effect from
the discrimination. 42 U.S.C. § 12188(a)(1); accord Molski v.
M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).3
We should not extend the concept of “tester” standing to an
area where we do not have confidence that Congress intended
to empower anyone to make claims. Unlike the broad stand-
ing provisions in the housing discrimination laws and the
ADA, here the CAN-SPAM statutory language grants a pri-
vate right of action not to “all persons” regardless of injury,
but only to IAS providers who suffer adverse effect. These
requirements make clear that a litigation-seeking party in Gor-
don’s circumstances has no standing to proceed under the
CAN-SPAM Act.
3
Evergreen Dynasty also involved state disability claims under Califor-
nia’s Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq., and the standing
provisions under that statute are similarly broad. See Cal. Civ. Code
§ 52(a) (holding that violators of the Act are liable to “any person denied
the rights” guaranteed by the Act); Botosan v. Paul McNally Realty, 216
F.3d 827, 835 (9th Cir. 2000) (holding that under the Unruh Act, “proof
of actual damages is not a prerequisite to recovery of statutory minimum
damages”); cf. Evergreen Dynasty, 500 F.3d at 1060 n.6 (citing cases sug-
gesting that in general “statutory damages do not require proof of injury”).