49 Cal. 4th 334, 232 P.3d 625, 110 Cal. Rptr. 3d 628

Filed 6/21/10


Plaintiff and Appellant,
9th Cir. No. 07-56171
C.D. Cal. No.
Defendants and Appellants.

Business and Professions Code section 17529.5, subdivision (a)(2)1 (section
17529.5(a)(2)) provides that it is unlawful to advertise in a commercial electronic
mail (e-mail) advertisement ? commonly known as ?spam? ? if the
advertisement ?contains or is accompanied by falsified, misrepresented, or forged
header information.? The issue this case presents is whether, under this section, it
is unlawful to send commercial e-mail advertisements from multiple domain
names for the purpose of bypassing spam filters. We hold that, on the undisputed
facts of this case, the answer is ?no.?
?The Internet is an international network of interconnected computers? that
enables millions of people ?to communicate with one another and to access vast

All further unlabeled statutory references are to the Business and
Professions Code.

amounts of information from around the world.? (Reno v. American Civil
Liberties Union (1997) 521 U.S. 844, 849-850.) ?In order for the Internet to
function, each entity connected to it (e.g., computer, router, network, etc.) must
have a unique numeric ?address.? A unique identifier is required to enable one
connected computer or network to identify and send information to another
connected computer or network. Those unique addresses are known as Internet
Protocol Addresses or ?IP addresses.? [Citation.]? (National A-1 Advertising, Inc.
v. Network Solutions, Inc. (D.N.H. 2000) 121 F.Supp.2d 156, 159 (National A-1
Advertising).) An IP address consists of ?four sets of numbers separated by
periods? (Kremen v. Cohen (9th Cir. 2003) 325 F.3d 1035, 1038), such as
? ?IP addresses function much like Social Security numbers or
telephone numbers: each IP address is unique and corresponds to a specific entity
connected to the Internet.? (National A-1 Advertising, supra, at p. 159.)
Because the number strings that make up IP addresses can be difficult to
remember, the Internet community developed the Domain Name System, which
enables users to link a numeric IP address to a unique and easier to remember
domain name, ?thereby making it more convenient for users to access particular
addresses on the Internet.? (National A-1 Advertising, supra, 121 F.Supp.2d at p.
159.) ?Domain names ? e.g., bettyandnicks.com ? consist of at least two groups
of alphanumeric characters, each known as a string, separated by a period or dot.
The last string ? the farthest to the right ? denotes the top-level domain. The
second-to-last string is the second-level domain name and identifies the person?s
or organization?s Internet computer site.?2 (Thomas v. Network Solutions, Inc.
(D.C. Cir. 1999) 176 F.3d 500, 503.)

Consistent with this general discussion, for purposes of applying section
17529.5, the term ? ?Domain name? means any alphanumeric designation that is

(footnote continued on next page)

In March 2007, plaintiff Craig E. Kleffman filed this class action in state
court against defendants Vonage Holdings Corp., Vonage America, Inc., and
Vonage Marketing, Inc. (Vonage), asserting a claim under section 17529.5(a)(2).
As noted above, that section makes it unlawful to advertise in a commercial e-mail
advertisement that ?contains or is accompanied by falsified, misrepresented, or
forged header information.? In relevant part, Kleffman alleged the following:
Vonage, by and through its marketing agents, sent him 11 unsolicited e-mail
advertisements for its broadband telephone services using ?11 different domain
names: superhugeterm.com; formycompanysite.com; ursunrchcntr.com;
urgrtquirkz.com; countryfolkgospel.com; lowdirectsme.com; yearnfrmore.com;
openwrldkidz.com; ourgossipfrom.com; specialdlvrguide.com; and
struggletailssite.com.? These ?11 different domain names can [all] be traced to a
single physical address? in Nevada where Vonage?s marketing agent ?is located.?
?None of these domain names provides any indication to the recipient (or its spam
filter) that the advertisement is from Vonage.? Vonage?s ?use of these multiple
domain names . . . reduces the likelihood that an internet service provider [ISP]
will identify these . . . advertisements as spam and block them before they reach

(footnote continued from previous page)
registered with or assigned by any domain name registrar as part of an electronic
address on the Internet? (? 17529.1, subd. (e)), and the term ?Internet? means ?the
global information system that is logically linked together by a globally unique
address space based on the Internet Protocol (IP), or its subsequent extensions, and
that is able to support communications using the Transmission Control
Protocol/Internet Protocol (TCP/IP) suite, or its subsequent extensions, or other
IP-compatible protocols, and that provides, uses, or makes accessible, either
publicly or privately, high level services layered on the communications and
related infrastructure described in this paragraph.? (? 17538, subd. (f)(6); see
? 17529.1, subd. (k).)

the email inboxes of [Kleffman] and class members.? An ISP ? ?may block a
message because . . . [a] domain name is associated with the sending of high
volumes of spam,? ? so recipients ?could easily block all of? Vonage?s e-mail
advertisements ?[i]f Vonage and its marketing agents were to use a single domain
name to send [those] advertisements.? Vonage ?could have easily (and less
expensively)? sent all of its e-mail advertisements ?using a single domain name,?
and ?the only reason? it used ?multiple domain names is to mislead email service
providers and recipients, and their spam filters.? ?In other words, Vonage
essentially creates multiple identities, as represented by the multiple domain
names, in order to ?spread out? the total volume of [its e-mail advertisements] and
reduce the volume sent via each domain name, a strategy deliberately calculated to
trick the ISPs into believing there are multiple senders, when in actuality the
emails are sent for the ultimate single beneficiary: Vonage.? ?The multitude of
?from? identities falsifies and misrepresents the true sender?s identity and allows
unwanted commercial email messages to infiltrate consumers? inboxes.?
Vonage?s use of ?multiple domain names to bypass spam filters,? its ?failure? to
use ?a single domain name? in sending its advertisements, and its ?failure to
identify Vonage in the domain name from which the . . . advertisements were sent,
i.e., through the use of a generic subdomain name such as adfor.vonage.com,
constitute[] falsified and misrepresented header information prohibited by? section
After Vonage removed the case to federal court, it moved to dismiss the
complaint, arguing the complaint failed to state a claim under section
17529.5(a)(2). The district court agreed and dismissed the action with prejudice
and without leave to amend, stating: ?Kleffman does not actually allege that the
content of Vonage?s email was false, misrepresented or forged, and indeed points
to nothing misleading about any single given email.? ?The headers are allegedly

falsified because, though they literally and truthfully identify the sender, they are
part of a mechanism to avoid anti-spam legislation and therefore imply that they
originate from different sources. However, under the plain language of the statute,
which requires that an email message contain a falsified, misrepresented or forged
header, the claim fails. The failure to send mail from a single domain name that
includes the word ?Vonage? is simply not a misrepresentation in any ordinary
sense of the word.? ?Moreover, while [Kleffman] might characterize an email as
containing the implicit misrepresentation ?I am not from the same sources as the
others,? . . . this is more than the plain language of the statute would bear.?3
Kleffman appealed to the United States Court of Appeals for the Ninth
Circuit. Pursuant to rule 8.548 of the California Rules of Court, the Ninth Circuit
asked us to decide the following question: ?Does sending unsolicited commercial
e-mail advertisements from multiple domain names for the purpose of bypassing
spam filters constitute falsified, misrepresented, or forged header information
under [section] 17529.5(a)(2)?? We granted the Ninth Circuit?s request.4
At issue here is the scope of section 17529.5(a)(2), which makes it
?unlawful . . . to advertise in a commercial e-mail advertisement? that ?contains or
is accompanied by falsified, misrepresented, or forged header information.? ? ?As
in any case involving statutory interpretation, our fundamental task [in considering

The court alternatively found that even were the statute to prohibit the
alleged conduct, the federal ?CAN-SPAM Act? (15 U.S.C. ? 7701 et seq.) would
preempt it.

California Rules of Court, rule 8.548 provides: ?On request of . . . a United
States Court of Appeals . . . , the Supreme Court may decide a question of
California law if: [?] (1) The decision could determine the outcome of a matter
pending in the requesting court; and [?] (2) There is no controlling precedent.?

this issue] is to determine the Legislature?s intent so as to effectuate the law?s
purpose.? [Citation.]? (People v. Cole (2006) 38 Cal.4th 964, 974-975.)
In resolving the parties? disagreement over the meaning of section
17529.5(a)(2), it is useful to begin by noting the matters on which they agree.
There is no dispute here that the domain names in question were part of the e-
mails? ?header information? within the meaning of section 17529.5(a)(2).5 There
also is no dispute that the domain names used to send Vonage?s e-mail
advertisements, and reflected in the header information of these e-mail
advertisements, actually exist and are technically accurate, literally correct, and
fully traceable to Vonage?s marketing agents. Finally, there is no dispute that, in
light of this conceded fact, the e-mails neither contained nor were accompanied by
?falsified . . . or forged header information? within the meaning of section
17529.5(a)(2). Thus, the parties agree that the question here is whether the e-mails
contained or were accompanied by ?misrepresented . . . header information?
within the meaning of that section.

California statutes do not define either the word ?header? or the phrase
?header information.? As Kleffman notes, the federal CAN-SPAM Act, which
makes it unlawful to initiate transmission of a commercial e-mail message that
contains or is accompanied by ?header information that is materially false or
materially misleading? (15 U.S.C. ? 7704(a)(1)), defines ?header information? as
?the source, destination, and routing information attached to an electronic mail
message, including the originating domain name and originating electronic mail
address, and any other information that appears in the line identifying, or
purporting to identify, a person initiating the message? (15 U.S.C. ? 7702(8)). A
similar definition was proposed, but not adopted, during the legislative process
that culminated in section 17529.5(a)(2)?s enactment. (See Sen. Bill No. 12
(2003-2004 Reg. Sess.) ? 1, as amended June 26, 2003 [? ?Header information?
means the source, destination, and routing information attached to an electronic
mail message, including the originating domain name and originating electronic
mail address?].)

Vonage?s answer to this question is relatively straightforward. It asserts
that header information is not ?misrepresented? within the meaning of section
17529.5(a)(2) unless it contains ?a false representation of fact.? Vonage reasons
that, when the Legislature drafted the statute, this was ?the established legal
definition? of the term ?misrepresent? for purposes of the tort of
misrepresentation, and nothing indicates the Legislature intended to use the term
in section 17529.5(a)(2) to convey some other meaning. Applying this definition,
Vonage argues that e-mail advertisements from multiple domain names with fully
accurate and traceable header information do not violate the statute because they
contain no false representation.
Kleffman, quoting Cooley v. Superior Court (2002) 29 Cal.4th 228, 249,
asserts that Vonage?s construction violates the rule of statutory construction that
? ? ?[c]ourts should give meaning to every word of a statute if possible, and should
avoid a construction making any word surplusage. ? ? ? He reasons that because
section 17529.5(a)(2) also expressly prohibits ?falsified? header information,
?misrepresented? header information must encompass something in addition to a
false statement of fact; otherwise, the term ?misrepresented? adds nothing to the
statute and has no meaning.
Instead, Kleffman asserts, in defining the term ?misrepresented? for
purposes of section 17529.5(a)(2), we should look to ?other statutory claims in the
false advertising sections of the Business and Professions Code, such as section
17200, which prohibits fraudulent business practices, and section 17500, which
prohibits false or misleading advertising.? These statutes, Kleffman argues, apply
where advertising ? ?is not actually false, but thought likely to mislead or deceive,
or is in fact false. By their breadth, [they] encompass not only those
advertisements which have deceived or misled because they are untrue, but also
those which may be accurate on some level, but will nonetheless tend to mislead

or deceive.? ? In Kleffman?s view, this established legal definition is what we
should presume the Legislature had in mind when it drafted section 17529.5(a)(2)
to prohibit ?misrepresented? header information. Alternatively, Kleffman asserts,
we should, construe the term ?misrepresent? in accordance with its ?ordinary?
meaning as set forth in several ?lay? dictionaries, i.e., to give a ?misleading?
representation or idea of something.6
Applying these tests, Kleffman argues the e-mails at issue here contained or
were accompanied by ?misrepresented? header information within the meaning of
section 17529.5(a)(2). In Kleffman?s view, the problem is not that the e-mails
were sent from multiple domain names, or that the domain names did not include
the word ?Vonage.? Indeed, Kleffman expressly disavows any requirement that
an advertiser use a single domain name or identify in the domain name the e-
mail?s contents, the name of the sending party, or the advertiser?s identity. The
problem, Kleffman asserts, is the ?random,? ?varied,? ?garbled,? and ?nonsensical
nature? of the multiple domain names, which created the ?misleading? or
?deceptive? impression ? the ?misrepresentation? ? that they were from

According to Kleffman, these ?lay? dictionaries alternatively define
?misrepresent? as to give an ?incorrect? or ?untrue? idea or representation of, or
?to represent falsely.? We note that, since 1999, a commonly cited legal
dictionary ? Black?s Law Dictionary (Black?s) ? has offered a similar definition
of ?misrepresentation.? (Black?s Law Dict. (9th ed. 2009) p. 1091, col. 1
[?misrepresentation? is ?[t]he act of making a false or misleading statement about
something, usu. with the intent to deceive?]; Black?s Law Dict. (8th ed. 2004) p.
1022, col. 1 [same]; Black?s Law Dict. (7th ed. 1999) p. 1016, col. 1 [same].)
Before 1999, Black?s defined ?misrepresentation? as ?[a]ny manifestation by
words or conduct by one person to another that, under the circumstances, amounts
to an assertion not in accordance with the facts.? (Black?s Law Dict. (6th ed.
1990) p. 1001, col. 1.) The 1990 edition also explained: ?Colloquially [the word]
is understood to mean a statement made to deceive or mislead.? (Ibid.)


different entities when in fact they were all from Vonage ?via its solo marketing
agent.?7 According to Kleffman, the ?use of multiple garbled and nonsensical
domain names? was ?unnecessary? and ?serve[d] no purpose but to conceal the
single source of these . . . e-mail advertisements? in order ?to bypass spam filters,?
which ?block e-mail when a domain name is associated with the sending of high
volumes of spam.? Therefore, ?the garbled and nonsensical [nature of the] domain
names evidence[d] an intent to bypass spam filters that does not exist with
multiple domain names in and of themselves.? In short, Kleffman argues, section
17529.5(a)(2) ?permits e-mail advertisements sent from multiple domain names,?
but only if ?they are not deceptive by virtue of their utterly random and
nonsensical nature.?
There are several problems with Kleffman?s analysis. First, his view that
we should look to sections 17500 and 17200 fails to account for the significant
linguistic differences between those statutes and section 17529.5(a)(2). Unlike
section 17529.5(a)(2), neither section 17500 nor section 17200 uses the word
?misrepresented? or any form of that word. Rather, as relevant here, section
17500 applies to statements that are ?untrue or misleading? (italics added), and
section 17200 applies to advertising that is ?unfair, deceptive, untrue or
misleading? (italics added). Thus, these statutes expressly use the term ?
?misleading? ? that Kleffman asserts we should read into section 17529.5(a)(2)
in order to define the term ?misrepresented.? This approach contravenes the
principle that ?[w]hen the Legislature uses materially different language in
statutory provisions addressing the same subject or related subjects, the normal

Invoking the words of the federal district court, Kleffman asserts that the
domain names? random and nonsensical nature created the ?misrepresentation?
that ? ?I am not from the same source as the others.? ?

inference is that the Legislature intended a difference in meaning. [Citation.]?
(People v. Trevino (2001) 26 Cal.4th 237, 242.)
Second, Kleffman?s approach, including his reliance on dictionaries that
use the word ?mislead? to define the word ?misrepresent,? overlooks the language
of the provision that immediately follows section 17529.5(a)(2). Section 17529.5,
subdivision (a)(3), prohibits the sending of an e-mail advertisement with a subject
line that is ?likely to mislead a recipient.? (Italics added.) Thus, in the very next
provision of the same statute, the Legislature expressly used the ?likely to
mislead? language Kleffman would use to define the word ?misrepresented? in
section 17529.5(a)(2). This approach contravenes the principle that ?when
different words are used in contemporaneously enacted, adjoining subdivisions of
a statute, the inference is compelling that a difference in meaning was intended.?
(People v. Jones (1988) 46 Cal.3d 585, 596, italics omitted; see also Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117 [?[w]here
different words or phrases are used in the same connection in different parts of a
statute, it is presumed the Legislature intended a different meaning?].) It also
ignores the principle that ?when a statute contains a list or catalogue of items, a
court should determine the meaning of each by reference to the others, giving
preference to an interpretation that uniformly treats items similar in nature and
scope.? (Moore v. California State Bd. of Accountancy (1992) 2 Cal.4th 999,
1011-1012.) Under this principle, the meaning of the word ?misrepresented? in
section 17529.5(a)(2) takes color from the other words listed in the same
provision ? ?falsified? and ?forged? ? not from the distinctly different ?likely
to mislead? language found in the next provision, section 17529.5, subdivision
(a)(3) .
Moreover, it is significant that the language in section 17529.5, subdivision
(a)(3), fully articulating the standard applicable to e-mail subject lines ? ?likely

to mislead a recipient, acting reasonably under the circumstances? ? is virtually
identical to the language that, only months before section 17529.5?s passage, a
California appellate court announced for applying sections 17500 and 17200. (See
Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 512 [standard for
claims under ?? 17200 and 17500 is whether ?the ordinary consumer acting
reasonably under the circumstances? is likely to be deceived or misled] (Lavie).)8
Thus, the Legislature clearly knew how to draft language invoking the ?likely to
mislead? standard of sections 17500 and 17200. That it did so in drafting section
17529.5, subdivision (a)(3), but not in drafting the immediately preceding
subdivision ? section 17529.5(a)(2) ? significantly undermines Kleffman?s
Nevertheless, Kleffman argues that the relevant legislative history supports
his construction of section 17529.5(a)(2). He acknowledges that, other than repeat
section 17529.5(a)(2)?s language verbatim, the legislative analyses of the statute?s
enacting bill (Sen. Bill No. 186 (2003-2004 Reg. Sess.) did not discuss the
provision or mention the types of header information that would violate it.
Instead, he relies principally on a legislative analysis of a subsequent bill that
amended section 17529.5(a)(2) (and other sections) (Sen. Bill No. 1457 (2003-
2004 Reg. Sess.), which stated that the federal CAN-SPAM Act did not preempt
the right of action under state law against those who send spam ?with misleading
or falsified headers.? (Assem. Com. on Business & Profession, Analysis of Sen.
Bill No. 1457 (2003-2004 Reg. Sess.) as amended June 9, 2004, p. 4.) Based on

Lavie was issued in January 2003. Section 17529.5, subdivision (a)(3)?s
?likely to mislead? language was added to the bill through which the Legislature
enacted the statute in July 2003. (Assem. Amend. to Sen. Bill No. 186 (2003-
2004 Reg. Sess.) July 9, 2003, ? 1.)

this statement, Kleffman asserts that ?the Legislature?s shorthand for
?misrepresented, or forged? seems to be ?misleading.? ?
To the extent the statutory language, read in context, remains ambiguous,
such that legislative history is relevant (see People v. Gonzalez (2008) 43 Cal.4th
1118, 1126), it does not support Kleffman?s position. The very next sentence of
the analysis Kleffman quotes stated that the amendment to section 17529.5(a)(2)
was ?intended to merely provide clean-up language and ensure a private right of
action against spammers who use falsified headers, which is not in conflict with
federal law.? (Assem. Com. on Business & Profession, Analysis of Sen. Bill No.
1457 (2003-2004 Reg. Sess.) as amended June 9, 2004, p. 4., italics added.)
Several other analyses repeated this statement and/or explained that the
amendment created a private right of action for ?falsified? e-mails. (Assem. Com.
on Judiciary, Analysis of Sen. Bill No. 1457 (2003-2004 Reg. Sess.) as amended
June 17, 2004, pp. 1-2 [bill ?ensure[s] a private right of action against spammers
who use falsified headers? and ?creates a ?stand alone? section for falsified
emails . . . to avoid confusion as to what parts of existing state law are preempted
by federal law and what parts remain viable in this area?]; Assem. Com. on
Appropriations, Analysis of Sen. Bill No. 1457 (2003-2004 Reg. Sess.) as
amended Aug. 5, 2004, p. 1 [creates stand-alone section ?for falsified e-mails?];
Sen. 3d reading analysis, Sen. Bill No. 1457 (2003-2004 Reg. Sess.) as amended
Aug. 5, 2004, p. 1 [same]; Sen. Rules Com., Off. Of Sen. Floor Analyses, Analysis
of Sen. Bill No. 1457 (2003-2004 Reg. Sess.) as amended Aug. 5, 2004, p. 2
[same].) Thus, Kleffman overstates the significance of the imprecise and
summary language contained in the isolated statement he cites.
Moreover, in other respects, the legislative history of the 2004 amendment
to section 17529.5(a)(2) reflects a careful and purposeful distinction between the
terms ?misrepresented? and ?misleading.? The Legislative Counsel?s Digest of

the amending bill as introduced stated that existing law prohibited the sending of
an e-mail advertisement that ?contains or is accompanied by certain falsified,
misrepresented, obscured, or misleading information.? (Sen. Bill No. 1457 (2003-
2004 Reg. Sess.) as introduced Feb. 19, 2004.) In the next version of the bill, this
statement was revised to explain that existing law prohibited the sending of an e-
mail advertisement that ?contains or is accompanied by . . . falsified,
misrepresented, obscured, or forged header information, or if the e-mail has a
misleading subject line.? (Assem. Amend. to Sen. Bill No. 1457 (2003-2004 Reg.
Sess.) June 9, 2004.) This revised language expressly recognized the linguistic
differences between subdivision (a)(2) and (3) of section 17529.5. Thus, the
legislative history of the 2004 amendment does not support Kleffman?s view that
?misrepresented? in section 17529.5(a)(2) means ?misleading? or ?likely to
More broadly, for several reasons, we cannot reasonably interpret the
statute as making it unlawful to use the multiple domain names at issue in this
case. First, it seems evident the Legislature did not intend section 17529.5(a)(2)
generally to prohibit the use of multiple domain names. At the same time it
enacted that section, the Legislature addressed the subject of multiple domain
names by passing another section ? section 17529.4, subdivision (c) ? that
prohibits the ?use [of] scripts or other automated means to register for multiple
electronic mail accounts from which to? send, or enable another to send, an

As introduced, the proposed amendment to section 17529.5 also would
have added a new subdivision broadly prohibiting the sending of an e-mail
advertisement that ?contains or is accompanied by false, misrepresented, obscured,
forged, or misleading information.? (Sen. Bill No. 1457 (2003-2004 Reg. Sess.)
as introduced Feb. 19, 2004, ? 2, proposing ? 17529.5, subd. (d).) This proposed
provision was later deleted. (Assem. Amend. to Sen. Bill No. 1457 (2003-2004
Reg. Sess.) June 17, 2004.)

unsolicited commercial e-mail advertisement. If mere use of multiple domain
names, which requires registration of multiple electronic accounts, constituted
?misrepresented . . . header information? for purposes of section 17529.5(a)(2),
then section 17529.4, subdivision (c), would be essentially useless. Of course, in
construing section 17529.5(a)(2), we must avoid interpretations that would render
related provisions unnecessary or redundant. (People v. Fierro (1991) 1 Cal.4th
173, 262.) Notably, as explained above, Kleffman concedes that mere use of
multiple domain names does not ?in and of itself? violate section 17529.5(a)(2).
Second, it also seems evident the Legislature did not intend section
17529.5(a)(2) to make it unlawful to use a domain name in a single e-mail that
does not make clear the identity of either the sender or the merchant-advertiser on
whose behalf the e-mail advertisement is sent. To begin with, a domain name in a
single e-mail that does not identify the sender, the merchant-advertiser, or any
other person or entity simply does not make any ?representation? regarding the e-
mail?s source, either express or implied, within the common understanding of that
term, so it cannot be said to constitute ?misrepresented? information within the
meaning of section 17529.5(a)(2).10 Moreover, a contrary conclusion would raise
significant preemption problems. Federal law provides that the CAN-SPAM Act
?supersedes any statute, regulation, or rule of a State or political subdivision of a
State that expressly regulates the use of electronic mail to send commercial
messages, except to the extent that any such statute, regulation, or rule prohibits

Possibly, such an e-mail would contain ?obscured? header information
within the meaning of section 17529.5(a)(2) in its original form, which prohibited
e-mail advertisements that contain or are accompanied by ?falsified,
misrepresented, obscured, or forged header information.? (Stats. 2003, ch. 487,
? 1.) The Legislature deleted the word ?obscured? when it amended the statute in
2004. (See Stats. 2004, ch. 571, ? 1.)

falsity or deception in any portion of a commercial electronic mail message or
information attached thereto.? (15 U.S.C. ? 7707(b)(1).) Regarding the scope of
this provision, a congressional committee report stated that ?a State law requiring
some or all commercial e-mail to carry specific types of labels, or to follow a
certain format or contain specified content, would be preempted.? (Sen. Rep. No.
108-102, 1st Sess., p. 21 (2003), reprinted in 2004 U.S. Code Cong. & Admin.
News, p. 2364.) Relying on this statement, the Ninth Circuit has held that a state
law requiring an e-mail?s ?from? field to include the name of the person or entity
who actually sent the e-mail or who hired the sender constitutes ?a content or
labeling requirement? that ?is clearly subject to preemption. [Citation.]? (Gordon
v. Virtumundo, Inc. (9th Cir. 2009) 575 F.3d 1040, 1064 (Gordon).) Thus,
construing section 17529.5(a)(2) as requiring this kind of information would
contravene the rule that courts should, if reasonably possible, construe a statute ?in
a manner that avoids any doubt about its [constitutional] validity. [Citations.]?
(Association for Retarded Citizens v. Department of Developmental Services
(1985) 38 Cal.3d 384, 394; see also County of Los Angeles v. Superior Court
(1999) 21 Cal.4th 292, 298 [?supremacy clause of the federal Constitution . . .
prohibits a state court from applying state law that is inconsistent with federal
law?].) Reinforcing application of this general principle in this case is the
legislative history of the 2004 amendment to section 17529.5(a)(2), which
explains that a purpose of the amendment was to ?conform? the statute to the
CAN-SPAM Act. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1457
(2003-2004 Reg. Sess.) as amended Aug. 5, 2004, p. 1.) Again, as explained
above, Kleffman agrees that section 17529.5(a)(2) does not require a domain name
in a single e-mail to include such identifying information.
Given these conclusions, we find that a single e-mail with an accurate and
traceable domain name neither contains nor is accompanied by

?misrepresented . . . header information? within the meaning of section
17529.5(a)(2) merely because its domain name is, according to Kleffman,
?random,? ?varied,? ?garbled,? and ?nonsensical? when viewed in conjunction
with domain names used in other e-mails.11 An e-mail with an accurate and
traceable domain name makes no affirmative representation or statement of fact
that is false. It is true that the term ?misrepresent? may encompass situations
where someone, having undertaken to provide information regarding a matter,
fails to disclose all facts that ? ?materially qualify? the limited facts disclosed.
[Citations.]? (Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th
1066, 1082.) However, this principle does not apply here. Contrary to Kleffman?s
assertion, as a matter of law, the use of an accurate and traceable domain name in
an e-mail cannot reasonably be understood to be an implied assertion that the
source of that e-mail is different from the source of another e-mail containing a
different domain name. This is especially true in this case, given that the header
information in each of the 11 e-mails Kleffman allegedly received contained the
term ?GreatCallRates? in the part of the sender?s e-mail address that preceded the
domain name.12 Therefore, the sender?s failure to include additional information

To answer the question the Ninth Circuit asked us to consider, we need not
precisely define the phrase ?misrepresented . . . header information? in section
17529.5(a)(2) or determine the full extent of its scope. It is enough to conclude
that the alleged conduct at issue here is not unlawful under the statute.

The e-mails, printed copies of which Kleffman attached to his complaint,
were sent from the following e-mails addresses:
GreatCallRatesWebDeals@ursunrchcntr.com; ChooseGreatCallRates.com@
urgrtquirkz.com; GreatCallRatesSpecialists@countryfolkgospel.com;

(footnote continued on next page)

did not render the header information ?misrepresented.? And, absent a
misrepresentation, use of a given domain name cannot constitute
?misrepresented . . . header information? within the meaning of section
17529.5(a)(2), even if the sender chose the domain name for the purpose of
bypassing spam filters.13
Moreover, as a practical matter, the rule Kleffman would have us adopt ?
that using multiple domain names violates section 17529.5(a)(2) if those names
are ?random,? ?varied,? ?garbled,? and ?nonsensical? ? is unworkable. Kleffman
offers no definition of these terms and no standard for applying them.14 As amici

(footnote continued from previous page)
SelectOpportunityfrom GreatCallRates.com@ourgossipfrom.com;
GreatCallRates.comCenter@specialdlvrguide.com; and

As Vonage asserts, ?[i]ntent, even intent to deceive, does not alone create a
misrepresentation? for purposes of section 17529.5(a)(2). Despite contrary
suggestions at many points in his briefs, Kleffman states he ?agrees? with Vonage
that an ?intent to bypass spam filters cannot create a misrepresentation? that
violates the statute. ?Instead,? he argues, ?it is the nature of the random and
nonsensical domain names in the header information of Vonage?s e-mail
advertisements that create[s] the misrepresentation regarding the actual single
authorship of the advertisements.? For reasons explained above, Kleffman?s
argument fails.

Although he neither defines the terms ?random,? ?varied,? ?garbled,? and
?nonsensical? nor articulates a standard for applying them, Kleffman offers the
following examples of multiple domain names he contends ?plain[ly]? would not
be deceptive: ?(1) anaheimangels.com, (2) angelsbaseball.com, (3)
losangeles.angels.mlb.com, and (4) angels.mlb.com; or (1) saks.com, (2)
saksfifthavenue.com, (3) saksfifthave.com, (4) saks5thave.com, and (5)
saks5thavenue.com; or (1) verizonwireless.com, (2) verizon.com, and (3)

(footnote continued on next page)

curiae supporting Vonage assert,15 ?[d]etermining whether a domain name is
sensible, nonsensical, random, or non-random is so subjective as to make the
inquiry meaningless.? ?Advertisers, distributors, and even casual e-mail senders
(of ?commercial e-mail advertisements,? as broadly defined by Section 17529.1,
subdivision (c)) would face tremendous uncertainty about whether their actions
run afoul of this undefined standard.?16 We would add that the uncertainty
inherent in Kleffman?s construction is especially problematic given that a violation
of section 17529.5(a)(2) constitutes a misdemeanor that is punishable by
imprisonment in county jail for up to six months. (? 17529.5, subd. (c); see
People v. Avery (2002) 27 Cal.4th 49, 58 [where reasonable constructions of
statute prescribing criminal penalties ? ?stand in relative equipoise,? ? courts
generally adopt construction more favorable to offender].)
Kleffman insists his construction is consistent with the relevant legislative
history. Although acknowledging that the legislative analyses of section
17529.5(a)(2)?s enacting bill did not mention the types of header information that

(footnote continued from previous page)
vzw.com.? These examples suggest a requirement that the domain names include
some common language and/or language associated with the advertiser. Such a
requirement would appear to constitute a preempted content or labeling
requirement. (See Gordon, supra, 575 F.3d at p. 1064.)

Amici curiae supporting Vonage are Value Click, Inc., and Email Sender
and Provider Coalition.

For purposes of applying section 17529.5(a)(2), section 17529.1,
subdivision (c), defines a ?[c]ommercial e-mail advertisement? as ?any electronic
mail message initiated for the purpose of advertising or promoting the lease, sale,
rental, gift offer, or other disposition of any property, goods, services, or extension
of credit.?

would violate the statute, he cites a letter written by the legislative author of both
the enacting bill and its 2004 amendment, which stated: ?Examples of violations
of [section 17529.5] could include,? among other things, ?[t]he use of multiple
email addresses and/or domain names created for the sole purpose of bypassing
spam-filters and blacklists.? However, this statement is entitled to no weight,
because we do not consider statements of a bill?s author (or any other legislator)
unless they reiterate legislative discussion and events leading up to the bill?s
passage (Martin v. Szeto (2004) 32 Cal.4th 445, 450-451), and Kleffman concedes
there is no evidence the statement he cites meets this requirement.17
Kleffman also relies on references in various sources to the use and
effectiveness of spam filters. He first notes that the Legislature?s statutory list of
?problems? that made section 17529.5(a)(2) and other anti-spam legislation
?necessary? (? 17529, subd. (m)) included the following: ?[s]pam filters have not
proven effective? (id., subd. (f)) and ?[m]any spammers have become so adept at
masking their tracks that they are rarely found, and are so technologically
sophisticated that they can adjust their systems to counter special filters and other
barriers against spam and can even electronically commandeer unprotected
computers, turning them into spam-launching weapons of mass production? (id.,
subd. (i)). He next notes a similar statement in an enrolled bill report to the

The letter is dated October 5, 2004 ? after section 17529.5(a)(2)?s original
passage in September 2003 and its amendment in September 2004 ? and is
addressed ?To Whom It May Concern.? Kleffman acknowledges that ?[i]t is not
clear from the face of the letter the extent to which [it] was reiterating legislative
discussion leading to [the statute?s] adoption,? and that ?it is impossible to know
from? the relevant legislative analyses whether the letter ?reiterated discussion that
occurred in the Legislature.?

Governor,18 and cites arguments against the bill that ?[i]t would be better to rely
on technology to solve the problem of spam.? (Sen. Republican Floor
Commentaries, Sen. Bill No. 186 (2003-2004 Reg. Sess.) Sept. 10, 2003, p. 5; see
also Dept. Consumer Affairs, Enrolled Bill Rep. on Sen. Bill No. 186 (2003-2004
Reg. Sess.), Sept. 22, 2003, p. 9 [?it could be argued? this bill is ?unnecessary?
because ?[t]here are software programs available to consumers that filter
unsolicited e-mail?].) Based on these references, Kleffman asserts we should
construe section 17529.5(a)(2) to prohibit e-mail advertisements ?from multiple
random and nonsensical domain names intended to bypass spam filters.?
Kleffman?s argument is unpersuasive. It is true that, in passing section
17529.5(a)(2), the Legislature generally noted the limitations of spam filters.
However, this circumstance does not justify contorting the meaning of
?misrepresented . . . header information? in the statute to prohibit every practice
that might decrease the effectiveness of spam filters. Because, as explained above,
Kleffman?s proposed construction is inconsistent with the statutory language read
in context and would be unworkable in practice, we decline to adopt it.

The enrolled bill report noted that ?[d]espite the increasing deployment of
anti-spam services and technology, the number of spam messages, and their size,
continues [sic] to increase.? (Dept. Consumer Affairs, Enrolled Bill Rep. on Sen.
Bill No. 186 (2003-2004 Reg. Sess.), Sept. 22, 2003, p. 5.)

For the above reasons, we hold that, on the undisputed facts of this case,
sending commercial e-mail advertisements from multiple domain names for the
purpose of bypassing spam filters is not unlawful under section 17529.5(a)(2).

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Kleffman v. Vonage Holdings Corp. __________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX (on certification pursuant to rule 8.548, Cal. Rules of Court)
Review Granted
Rehearing Granted


Opinion No. S169195
Date Filed: June 21, 2010



Attorneys for Appellant:
Hagens Berman Sobol Shapiro, Steve W. Berman, Reed R. Kathrein and Elaine T. Byszewski for Plaintiff
and Appellant.


Attorneys for Respondent:
Perkins Coie, Judith B. Gitterman, Elizabeth L. McDougall and Rebecca S. Engrav for Defendants and
Gibson, Dunn & Crutcher, Daniel M. Kolkey, S. Ashlie Beringer, Michael B. Smith and Benjamin M.
Glickman for Email Sender and Provider Coalition and ValueClick, Inc., as Amici Curiae on behalf of
Defendants and Appellants.

Counsel who argued in Supreme Court (not intended for publication with opinion):
Elaine T. Byszewski
Hagens Berman Sobol Shapiro
700 South Flower Street, Suite 2940
Los Angeles, CA 90017
(213) 330-7150

Elizabeth L. McDougall
Perkins Coie
1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099
(206) 359-8000