Plaintiffs Sue Mich. College for Sending 1,000 Spam Emails in Violation of Calif. Code

Section 17529.5 of the code prohibits advertising in unsolicited commercial email advertisements including: “a) Third parties’ domain names without permission; b) Materially false, misrepresented, and/or forged information contained in or accompanying the email headers; and/or c) Subject Lines that are likely to mislead a reasonable recipient as to the contents or subject matter of the spams,” the complaint said.

Plaintiffs Mason Farrell, Tanisha Carter, William Greenberg, Kristina Kirby, Deidre Love and Vanessa Powers, all California citizens, allege Hillsdale College and its third-party publisher affiliates, advertised in more than 1,400 unlawful, unsolicited commercial email advertisements promoting Hillsdale’s website, goods and services. The affiliate senders took “active steps to conceal their identities” when they registered the domain names they used to send or facilitate the sending of the spams at issue, “and they are liable for their own wrongful acts,” the complaint said.

In addition to Hillsdale College, a liberal arts college in Hillsdale, Michigan, the suit names defendants Pop Acta Media, O2M Digital, AOC Alerts, Backing America Now, Build Our Movement, Conservative Intel, Lead America 24, Patriot and Free, Pence News and Does 1-1,000. Most of the affiliate defendants are associated with conservative political messaging. Several, such as Lead America 24 and Pence News, were listed as business entities of “unknown organization” with unknown primary places of business. Most of the named defendants operate under various names, said the complaint.

Plaintiffs don’t know the true names or legal capacities of defendants designated as Does 1-1,000, who operate various domain names associated with “either sending or hyperlinking from the spams at issue that promoted [Hillsdale] and its website, goods, and services,” the complaint said.

Defendants advertised at least 610 emails that Farrell received promoting Hillsdale from Dec. 8, 2022, through the filing of the action, said the complaint. Plaintiff Carter received at least 17, Greenberg received at least 55, Kirby at least 201, Powers at least 309 and Love, at least 251, it said.

Love’s tally included 73 sent July 4-Dec. 7, 2022, that were included in Love et al v. Hillsdale Inc. et al. (docket 23-cv-010833) in Superior Court of California in Sacramento, filed Oct. 30 of this year, it said. Love will dismiss the Sacramento action as soon as this action is filed, the complaint said. Powers’ tally included 56 received July 4-Dec. 7, 2022, and those, too, were included in the Sacramento action that she will also dismiss upon filing of this suit, it said.

Spam emails advertised online courses on DVD, free online courses and study groups, Hillsdale College hats and “Liberty Walk” notecards, the college’s course on its “project to defend liberty nationwide by reaching and teaching millions," Betsy Ross flags, the school’s “1776 Curriculum” and its Imprimus publication, and pocket copies of America’s founding documents, said the complaint.

Plaintiffs never gave direct consent to receive commercial email ads from Hillsdale, nor did they have preexisting or current business relationships with the institution, said the complaint. Hillsdale is strictly liable for advertising in the spams at issue, “even if it engaged or otherwise associated with someone else to actually send the spams,” it said.

The spams are “unlawful because they all have materially false, misrepresented, and/or forged information contained in or accompanying the email headers,” the complaint said. Many also include third parties’ domain names “without permission,” it said. Section 17529.5(a)(2) of the California statute “prohibits falsified or misrepresented information contained in or accompanying email headers,” it noted.

Hillsdale spams at issue include a third-party’s domain name without the permission of that party, in violation of 17529.5(a)(1), said the complaint. Some 1,072 of the spams include the domain name amazonaws.com, but on information and belief, “Amazon.com Inc. prohibits the use of its services for spamming,” it said. It cited several other instances of domain names owned by third parties that prohibit the use of their services for spamming. Only 15% of the spams at issue “do not violate 17529.5(a)(1),” the complaint said.

Plaintiffs don’t bring claims under the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act (Can-Spam), but the complaint points to the first item in Can-Spam warning businesses not to use false or misleading headers. “Your 'From,' 'To,' 'Reply-To,' and routing information -- including the originating domain name and email address -- must be accurate and identify the person or business who initiated the message," the act states.

Can-Spam “makes much of the conduct alleged” in the complaint “a felony,” said the complaint. Plaintiffs are not able to bring claims under the federal Can-Spam Act, but if Hillsdale’s affiliate senders’ actions “constitute felony fraud under federal law, such actions surely constitute material falsity and deception and violate Section 17529.5,” of the California code, it said.

Hillsdale’s affiliate senders sent 909 of the Hillsdale spams at issue to plaintiffs from 17 domain names, including “defend-our-rights.com” and “trumptrainnews.com,” the complaint said. The affiliate senders used third parties, such as domains by Proxy LLC and Whois Privacy Service, so that the proxy registration services’ identities, rather than their true identities, appear in the results of a query of the publicly-accessible Whois database, alleged the complaint. “Thus, a person querying the Whois database for these domain names would not be able to identify the entities who actually controlled the domain names and sent the spams,” it said.

The court should award liquidated damages of $1,000 per email as provided by Section 17529.5(b)(1)(B)(ii), because Hillsdale and its affiliate senders “failed to implement reasonably effective systems to prevent advertising in/conspiring to advertise in unlawful spams,” said the complaint. “The unlawful elements of these spams represent willful acts of falsity and deception, rather than clerical errors,” it said. They also seek attorneys’ fees and legal costs.