• by Ray Schultz , Columnist, May 15, 2017

As if email marketers don’t have enough headaches, here’s one more: Yahoo is fighting a class-action lawsuit by a man who says he paid to have all advertisements blocked and that he found ads in his inbox anyway.

The guy is out $19.99, and he has obviously suffered deep emotional trauma by seeing a few email ads.

This is one of those cases where you could say, “a pox on both your houses.” On the one hand, Yahoo is trying to make a buck by blocking commercial emails. Who appointed Yahoo as a gatekeeper? On the other, the firm is being pursued by a anti-email zealot who is doubtless hoping to score a settlement.

But let’s catch up with the case before venturing an opinion. On Friday, Yahoo’s attorney Matthew S  Kahn argued that the lead plaintiff Thomas Curtis “elected to renew his annual ad-free subscription multiple times, and in doing so he agreed to Yahoo's terms,” Dorothy Atkins reports in Law360.

The result is that Curtis “doesn’t have standing to bring claims under the state’s unfair competition and false advertising statutes,” Kahn told the Santa Clara Superior Court, Atkins continues. 

“He knew he was buying a service that sometime shows ads,” according to Atkins. “He cannot now say he was tricked into buying that service. He freely chose to renew the ad-free service.”

In March, Judge Brian C. Walsh tentatively threw out Curtis’s unjust enrichment and promissory estoppel claims — with leave to amend. Yahoo now wants Walsh to dismiss the entire suit.

For his part, Curtis claims that he “didn’t know he would continue to see ads when he renewed his service,” Atkins reports. “Curtis relied on Yahoo’s representation that it would be an ad-free service, but Yahoo failed to deliver on its service,” Curtis’ attorney, Andrew Dressel argued on Friday.

In March, Walsh let stand Curtis’ claims of breach of contract and violation of California’s Unfair Competition Law and False Advertising Law, Atkins writes.

These claims may or may not prevail. But they beg the larger question — about the right to send email to people and their right to opt out.

You can’t condemn Yahoo for offering the service, although only a sucker would pay for it if ads were coming through anyway. The Internet is infested with ad blockers — this seems like just one more.  

Not that it’s necessary. Consumers can opt out of commercial emails by unsubscribing — the Can Spam Act requires that you let them do that — or collectively through the Data & Marketing Association’s eMPS service 

Can stray emails slip through? Sure, that’s possible. And email scam artists don’t sign up for eMPS.

The danger here is that a victory for Curtis could inspire other zealots to sue anyone for sending emails to them. One communication could land you in court, even if you’re in full compliance with Can-Spam.

These are nuisance suits, and some firms settle just to get rid of them — it’s a cost of doing business. Yahoo apparently isn’t settling, and it deserves credit for fighting.

So which side should we be rooting for? We’re surprised you even asked.

Yahoo. Hands down.