(1) PROMO VIDEO
(2) SEGMENT 1: KARL KRONENBERGER ON RECENT SPAM SUBJECT LINE RULING
As described on his blog:
Kronenberger Rosenfeld recently prevailed on behalf of its client in a putative class action alleging violations of California’s spam law. The plaintiff in the lawsuit alleged that the firm’s client, a merchant of personalized consumer goods, sent over 10,000 emails with subject lines that falsely stated that the recipient s had won an award. The plaintiff asserted claims under California’s spam statute along with claims under California’s unfair competition law, false advertising law, and the Consumers Legal Remedies Act.
After removing the case to federal court, the firm filed a motion to dismiss all of the claims. After full briefing and argument by both parties, the Honorable Margaret M. Morrow granted the motion in its entirety. In the most thorough discussion of email subject lines to date, Judge Morrow found that the subject lines at issue would not deceive a reasonable consumer as a matter of law. More specifically, the subject lines stated, “Lawyer Media, Top Lawyers in California,” and the body of the email contained details of a commemorative plaque that plaintiff could receive for a fee. The Court found that while the subject lines at issue stated that the recipient had been recognized in his/her industry, the subject lines were not deceptive because they were consistent with the statements contained in the body of the email and because the subject lines did not state that plaintiff would receive an award if he merely opened the email. As a result, the Court granted the firm’s client the extreme remedy of dismissing the plaintiff’s section 17529.5 claim with prejudice.
Judge Morrow’s decision is perhaps the most thorough discussion of email subject lines to date in U.S. jurisprudence, and expands on the ambiguous decision in Hypertouch, Inc. v. ValueClick, Inc., 192 Cal. App. 4th 805 (2011). Judge Morrow’s opinion defines the landscape of what will constitute a misleading subject line. It also stresses that not every statement in a subject line that might be subject to different interpretations will give rise to a multi-million dollar class action.
The Court also granted the firm’s motion to dismiss the plaintiff’s claims under California’s unfair competition law, false advertising law, and the Consumers Legal Remedies Act. More specifically, the Court found that the plaintiff had not adequately alleged that he had relied on the supposedly deceptive subject line or that he suffered any injury in fact or lost money or property as a result of the supposedly deceptive subject line.
The Court’s decision increases the threshold that plaintiffs must satisfy to pursue a spam complaint, even at the pleading stage. The Court’s decision also increases the roadblocks for would-be class action plaintiffs to using California’s spam laws to create a massive liability through the aggregation of countless recipients of emails.
On issues relating to Internet law, media & technology, Karl Kronenberger is an indispensable asset and trusted advisor for his clients. Karl has spoken as an Internet law expert on national television news programs and on industry panels, and he dedicates his entire practice to legal issues relating to the Internet. This former prosecutor and Army JAG Corps officer is both aggressive and creative in solving problems, while maintaining the highest of ethical standards.
Karl is a seasoned litigator of Internet-related legal issues. Among the many types of cases he has litigated, he has filed a multitude of Internet domain name cases in the tech-heavy Northern District of California as well as in other states. Karl has also litigated a variety of trademark infringement, trade secret and defamation cases relating to Internet matters in both state and federal courts. Karl thrives on litigating matters where the legal terrain is uncharted, as is often the case in the realm of Internet disputes.
Karl has also handled many types of transactions and business disputes for services, technology and media companies. Also, as a former general counsel to several companies, Karl has handled many of the day-to-day legal issues that both technology and non-technology companies face, from intellectual property issues, to licensing and distribution agreements, to employee matters, to vendor agreements, to domain name disputes.
Karl is a top rated attorney according to his peers and industry organizations. Karl has achieved Martindale-Hubbell’s “AV Preeminent” rating by his peers, which is a testament to the fact that a Karl’s peers rank him at the highest level of professional excellence. The AV Preeminent rating is the highest rating available in the Martindale-Hubbell peer rating system. Karl has also achieved the highest AVVO rating of 10.0 out of 10.0, based on his professional achievements and industry recognition. Karl was also named a Northern California Super Lawyer in 2011.
His philosophy: “I will work diligently on every aspect of your case and keep you informed of all significant developments. Representing clients zealously, maintaining the highest ethical standards, and communicating well with clients are the foundations of my practice.”
Karl is a member of the State Bars of California, New York, Georgia and Ohio, the District Courts for the Northern, Central and Southern Districts of California, District Court for the Southern District of Ohio, the United States Court of Appeals for the Ninth Circuit, and a member of the American Bar Association and the Bar Association of San Francisco.
He is graduate of the University of Notre Dame, and the University of Cincinnati College of Law.
(415) 955-1155, ext. 114
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NORIEGA’S REVENGE: SUES ACTIVISION ON RIGHT OF PUBLICITY CLAIM
From EFF’s blog:
In Call of Duty: Black Ops II, players engage in a variety of missions. In some, they encounter nonfiction characters, including a character based on General Manuel Noriega, the former military dictator of Panama. As with movies or books, a creator of a video game might include real-world people as part of its historical narrative, to heighten realism, or for purposes of political satire or social commentary. The First Amendment should provide robust protection for this kind of creative expression. But some terrible court decisions regarding the so-called ‘right of publicity’ have opened the door to censorship by persons depicted in creative works.
A new lawsuit illustrates just how crazy things have become. Yesterday, General Noriega, who is currently in prison in Panama, sued Activision for his depiction in Call of Duty. Hislawsuit claims that the game misappropriates his likeness for financial gain, a California state law claim also known as the “right of publicity.” This is not a defamation suit. Rather, Noriega is claiming that Activision included him “to heighten realism in its video game” and this means they should pay up. As one commentator wrote, this is “a lawsuit that beggars belief.”
But the true source of madness here is not General Noriega and his lawyers. Rather, it is the Ninth Circuit’s recent ruling in Keller v. Electronic Arts. In that case, the court found that EA’s NCAA Football game infringed a former college player’s right to publicity. The court dismissed any free speech concerns. The majority wrote that the use of Keller’s likeness did “not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.” In other words, because EA’s game was realistic, it was not protected expression.
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