CAN SPAM preemption of CA law

The California court of appeals returned a ruling yesterday in the Hypertouch v. ValueClick case. This is a case I haven’t talked about at all previously, but I think this ruling deserves a mention.

The short version is that Hypertouch sued Valueclick in 2008 under both CAN SPAM and the California anti-spam law. Eventually the judge in the case ruled that there was no clear evidence of fraud, therefore CAN SPAM preempted the California law.

Hypertouch appealed the case.

Yesterday the appeals court published their opinion and kicked the case back down to the lower court.

The trial court granted summary judgment, ruling that the CAN-SPAM Act preempted Appellant‟s section 17529.5 claims. Although the Act expressly exempts from preemption state laws prohibiting “falsity or deception” in commercial e-mail, the court concluded this exemption was only intended to apply to state statutes that require a plaintiff to establish each element of common law fraud. The court entered judgment dismissing the case in its entirety and awarded Respondents approximately $100,000 in costs.

On appeal, Appellant argues that the court erred in ruling that the CAN-SPAM Act preempts claims arising under section 17529.5. In addition, Appellant argues that: (1) it introduced sufficient evidence to establish a triable issue of fact as to whether Respondents violated section 17529.5; (2) section 17592.5 claims are governed by the three-year statute of limitations in Code of Civil Procedure section 338, rather than the one-year period described in section 340, subdivision (a); and (3) the trial court abused its discretion in awarding Respondents $100,000 in costs.

We reverse the trial court‟s grant of summary judgment, concluding that the CAN-SPAM Act does not preempt Appellant‟s claims and that Appellant has raised a triable issue of fact regarding whether Respondents violated section 17529.5.

Slashdot article

Metnews Article


  1. Joe Wagner says

    Quick correction. Hypertouch only sued under California law, not CAN-SPAM.

  2. jack says

    So is the statute of limitations to sue for spam 1 year or 3 years in California and how much is the receiver entitled to, per spam email?



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