## Facts

- James S. Gordon, Jr. operated gordonworks.com and was closely associated with Omni Innovations, LLC, which pursued spam-related lawsuits as its primary revenue source.
- Gordon/Omni leased server space from a third-party host and created numerous email accounts, including for friends and family.
- Gordon registered these addresses for online promotions and joined 100–150 mailing lists, resulting in large volumes of unsolicited commercial email.
- Gordon then took control of the accounts and configured an automated reply asserting a “contract” under which senders purportedly agreed to stop emailing or pay $500 per additional unsolicited message.
- Virtumundo, Inc., Adknowledge, Inc., and their owner sent substantial commercial email as part of their online marketing business.
- Gordon alleged the emails violated the CAN-SPAM Act and Washington law due to misleading header information, deceptive subject lines, and other claimed defects.

## Issues

1. Whether Gordon had statutory standing to sue under CAN-SPAM as a “provider of Internet access service” “adversely affected” by the alleged violations.
2. Whether CAN-SPAM preempted Gordon’s claims under Washington’s Commercial Electronic Mail Act (CEMA) and related Consumer Protection Act (CPA) claims.
3. Whether the alleged inaccuracies in sender/header/domain information constituted “falsity or deception” sufficient to avoid CAN-SPAM preemption.

## Decision

- The Ninth Circuit affirmed summary judgment for Virtumundo on all claims.
- The court held Gordon lacked statutory standing under CAN-SPAM because he was not within the narrow class of qualifying Internet access service providers and was not “adversely affected” in the manner Congress contemplated.
- The court held Gordon’s Washington CEMA claims were expressly preempted by CAN-SPAM because they were not grounded in fraud-like deception.
- The court held the Washington CPA claims failed because they were derivative of the preempted CEMA theory.
- The Washington “Prize Statute” claim was not revived on appeal (it had been dismissed earlier for pleading deficiencies).

## Legal Principles

- CAN-SPAM’s private right of action is limited to a narrow class of bona fide “providers of Internet access service” who are “adversely affected” by statutory violations; mere receipt of spam or operation of email accounts/servers does not suffice.
- “Adversely affected” requires harms of the type associated with service-provider operations and burdens (e.g., technical or network-level impacts), not self-generated or litigation-driven costs.
- CAN-SPAM expressly preempts state laws regulating commercial email, except for state provisions that prohibit “falsity or deception.”
- The “falsity or deception” savings clause is construed to cover fraud-like misrepresentation, not immaterial, technical, or formal defects that do not amount to traditional deceit.
- State consumer-protection claims premised on preempted state spam-law violations fail when they depend on the same preempted theory.

## Conclusion

The Ninth Circuit limited CAN-SPAM private enforcement to bona fide internet access service providers suffering the types of harms Congress targeted and held that CAN-SPAM broadly preempts state anti-spam claims unless they rest on fraud-like deception rather than technical irregularities in commercial email.


Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2009)