A jury has cleared legal
research company TheLaw.net and its owner, Mark Whitney, of violating a Washington D.C., spam law by sending unsolicited email ads to a local attorney.
Whitney successfully argued that the
emails delivered to Washington attorney Eric Menhart were not misleading. Menhart had accused Whitney of violating Washington, D.C.'s Spam Deterrence Act, a 2008 statute that imposes damages up to
$500 per email for sending false or misleading messages.
Menhart alleged in his complaint that he received 49 unsolicited ads with subject lines like "Ten Lawyers Leaping" and "A Murder in
Michigan." The ads themselves were for legal research services.
Menhart contended that the emails were misleading, partly because the subject lines did not indicate that the messages were ads.
TheLaw. net's attorney, Bernard Solnik, countered that the company designed the subject lines to be "intriguing."
A jury returned a verdict in Whitney's favor last month, after a trial in the
District of Columbia Superior Court; the deadline to appeal expired last week.
This lawsuit was not Whitney's first brush with the law. In 1991, he was convicted of bank fraud for submitting
false documents in connection with a loan application. Whitney served 27 months in prison before launching TheLaw.net in 1999.
Court records show that Menhart sought to introduce evidence of
Whitney's criminal record. Whitney objected on the grounds that the 20-year-old conviction was not relevant.
Unlike the federal CAN-SPAM Act, which only allows Internet service providers or
government officials to sue email marketers, Washington, D.C.'s anti-spam law allows private individuals like Menhart to sue for damages.
But one hurdle for email recipients who file suit under
state or local laws is that the federal statute says it trumps all spam laws -- except those dealing with fraud or falsity. That exception has been interpreted narrowly by other courts, but Whitney
did not argue that his case should be dismissed on those grounds. The judge presiding over the lawsuit did not independently consider the issue.
Both the Fourth Circuit and Ninth Circuit Courts
of Appeal, however, have specifically ruled that claims alleging state law violations must be dismissed unless the emails at issue were "materially" false or misleading.
Proving that a statement
is materially false generally requires evidence of something more than a simple misstatement or omission. The 9th Circuit's ruling, issued in 2009, contains especially broad language that appears to
bar many consumers from proceeding under local laws.