## Facts

- Asis Internet Services and Joel Householter d/b/a Foggy.net operated Internet service provider (ISP) networks servicing customer email accounts in California.
- Consumerbargaingiveaways, LLC and related entities allegedly transmitted nearly 1,000 unsolicited commercial email advertisements to addresses serviced by plaintiffs.
- Plaintiffs alleged the emails violated California Business & Professions Code § 17529.5 by using falsified or misleading header information and deceptive subject lines.
- Plaintiffs sought statutory damages and injunctive relief under § 17529.5.
- Defendants moved under Rule 12 to dismiss based on CAN-SPAM preemption, statute of limitations, and lack of standing, and alternatively sought a more definite statement.

## Issues

1. Whether CAN-SPAM expressly preempted California Business & Professions Code § 17529.5 claims, and if so, whether claims alleging falsity or deception fell within CAN-SPAM’s savings clause.
2. Whether § 17529.5 claims were subject to California’s one-year statute of limitations for statutory penalties, and when each claim accrued.
3. Whether ISP plaintiffs had standing as adversely affected service providers to sue for unlawful commercial email practices.
4. Whether the complaint adequately identified which emails violated which statutory provisions and pleaded facts showing falsity or deception, or whether a more definite statement was required.

## Decision

- The court granted in part and denied in part defendants’ Rule 12 motion.
- The court held § 17529.5 claims were not categorically preempted; claims grounded in falsity or deception could proceed within CAN-SPAM’s savings clause.
- The court applied a one-year limitations period for statutory penalties and dismissed claims based on emails received more than one year before suit; timely claims were not dismissed on that ground.
- The court found plaintiffs’ standing allegations sufficient at the pleading stage based on alleged burdens and costs to ISP systems.
- The court granted a more definite statement and required plaintiffs to amend to specify the particular emails and the specific allegedly false or deceptive features supporting each claimed violation.

## Legal Principles

- CAN-SPAM preempts state laws regulating commercial email except to the extent the state law prohibits falsity or deception in any portion of a commercial email message.
- A state anti-spam claim avoids CAN-SPAM preemption only when the theory rests on actual falsity or deception, not merely the unsolicited or bulk nature of email.
- Claims seeking statutory damages under California Business & Professions Code § 17529.5 are treated as actions for statutory penalties and are subject to a one-year limitations period under California Code of Civil Procedure § 340(a).
- For unlawful email claims, accrual occurs upon receipt of each allegedly unlawful email.
- ISPs may establish standing at the pleading stage by alleging they are service providers adversely affected through processing, storage, and related costs caused by unlawful commercial emails.
- A plaintiff must plead with sufficient specificity how the challenged headers or subject lines are false or deceptive and must connect particular messages to particular statutory violations; otherwise, the court may require a more definite statement.

## Conclusion

The court allowed § 17529.5 claims to proceed only to the extent they were based on false or deceptive email practices preserved from CAN-SPAM preemption, dismissed time-barred claims under the one-year statutory-penalty limitations period, accepted ISP standing allegations at the pleading stage, and required an amended, more specific pleading identifying the emails and the alleged falsity or deception.


Asis Internet Servs. v. Consumerbargaingiveaways, LLC, 622 F. Supp. 2d 935 (N.D. Cal. 2009)