Be Warned of the "Professional Plaintiff"
[Editor's Note: Gary Hennerberg is traveling this week, but attorney Peter Hoppenfeld has stepped in to supply this week's blog.]
A client recently received the ultimate "shakedown" letter—claiming violation of the California CAN-SPAM law as a result of getting eight emails, demanding $80,000 in statute-mandated damages, yet willing to settle for $2400.
Unfortunately, this has become a cottage industry. The California law has a private right of action that has been taken advantage of by a few noteworthy legal vigilantes. Their actions have created a template for the "shakedown."
To add insult to injury, the "professional" victim opted-in herself for each of the lists that she claims issued a spam email. I'm fairly sure that she probably has a cyber-ambulance chasing attorney ready to pounce on a contingency basis.
What do you do?
The American Corporate Counsel Association has issued a white paper that is very helpful. Seems like the SPAM demand toolkit left out one key defense—if your ISP has reasonable processes in place to prevent spamming, the statutory damages in California are reduced from $1000 to $100 per occurrence.
Quoting my letter:
First, it is clear that you are following a textbook (albeit outdated) approach of a "professional plaintiff" under the California anti-spam law. Attached is a copy of a White Paper prepared by the Association of Corporate Counsel that clearly rebuts each and every point that you have raised in an attempt to coerce my client to pay you monies.
We are in possession of proof that you opted into a number of email lists as proof that these emails are not unsolicited. Even if unsolicited, all of my client's emails contain compliant opt-out links and you have not elected to take advantage of that option.
The element of the California law that you conveniently ignored is Section 17529.8 which reduces the potential statutory damages to $100 per occurrence. Please note: