Define: Gordon V. Virtumundo, 575 F.3D 1040 (9Th Cir. 2009)

In the 2009 court case Gordon v. Virtumundo, the United States Court of Appeals for the Ninth Circuit made several rulings. Firstly, they determined that the plaintiff, James S. Gordon, Jr., did not have the right to sue under the CAN-SPAM Act of 2003 because he was not an “internet access service provider” and was not “adversely affected” by spamming activity. Additionally, the court ruled that Gordon’s claims under Washington’s Commercial Electronic Mail Act were preempted by the CAN-SPAM Act. The case revolved around Gordon’s business, which provided software development services and actively worked to combat spamming through legal action. Gordon filed a lawsuit against Virtumundo, Inc. and Adknowledge, Inc. for violating the CAN-SPAM Act, CEMA, Washington’s Consumer Protection Act, and Washington’s “Prize Statute.” The court dismissed Gordon’s claim under the Prize Statute and granted Virtumundo’s motion for summary judgement.

The legal case of Gordon v. Virtumundo involved spam emails and the applicable laws. James S. Gordon, Jr. sued Virtumundo, Inc. and Adknowledge, Inc. for sending him spam emails, alleging violations of the CAN-SPAM Act of 2003, Washington’s Commercial Electronic Mail Act (CEMA), Washington’s Consumer Protection Act, and Washington’s “Prize Statute”. However, the Ninth Circuit ruled that Gordon did not have standing to bring claims under the CAN-SPAM Act as he was not an “internet access service provider” and was not “adversely affected” by the violations. The court clarified that the purpose of the CAN-SPAM Act was not to completely eliminate spam, but to target deceptive and predatory commercial email practices. Congress granted standing to a limited group of plaintiffs who are well-equipped to pursue legal actions against unlawful practices and enforce federal law for the benefit of consumers. Additionally, the court determined that Gordon’s claims under Washington’s CEMA were preempted by the CAN-SPAM Act, as they did not fall within the Act’s limited exception to preemption. To sue a sender under the CAN-SPAM Act, a person must be an “internet access service provider” and be adversely affected by the spam, meaning they must have a technical or hardware component affected by the spam, with harm exceeding ordinary inconveniences. The court held that CEMA claims related to “header” information must be substantiated with evidence of actual fraud or deception, similar to a traditional tort case. Claims under CEMA will not survive preemption analysis if the header information is incomplete or difficult to identify with a specific sender.

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This glossary post was last updated: 16th April 2024.