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No.

A141847
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE

TIMOTHY A. DeWITT,
Plaintiff and Appellant,
v.
FOOT LOCKER RETAIL INC. and 1INK.com,
Defendants and Respondents.

[PROPOSED] AMICUS CURIAE BRIEF OF JAY FINK


IN SUPPORT OF AND AGAINST ALL PARTIES

Appeal from Judgment Following Order Sustaining Demurrers in the


Superior Court of the State of California,
County of San Francisco, No. CGC-13-532370
Hon. Ernest Goldsmith, Law & Motion Judge

DANIEL L. BALSAM (State Bar No. 260423)


THE LAW OFFICES OF DANIEL BALSAM
2601C Blanding Avenue #271
Alameda, CA 94501
Phone: (415) 869-2873
Fax: (415) 869-2873

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Pursuant to California Rule of Court 8.208, I know of no entity or


person other than the Parties themselves that has a financial or other
interest in the outcome of the proceeding that the Justices should consider
in determining whether to disqualify themselves.

Dated:

/s/ Daniel L. Balsam

January 26, 2015

Daniel L. Balsam
Attorneys for Amicus Curiae Jay
Fink

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TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS ....................................... i
TABLE OF CONTENTS ............................................................................ii
TABLE OF AUTHORITIES.....................................................................iii
I.

Introduction ........................................................................................ 1

II.

The Emails Comply With Section 17529.5........................................ 2


A. The From Name Foot Locker VIP Does Not
Violate Section 17529.5................................................................ 3
B. A Sending Email Address That Includes
e.footlocker.com Does Not Violate Section
17529.5 ......................................................................................... 4
C. The Subject Line Keep It Clean, Keep It
Classy with Fresh White Sneakers! Does Not
Violate Section 17529.5................................................................ 6

III.

Truthful Statements In The Body Of An Email Do


Not Cure Falsified Or Misrepresented Information
In The Headers ................................................................................... 8

IV.

Claims Under Section 17529.5 Have Nothing To


Do With Fraud.................................................................................... 9
A. Plaintiffs Suing Under Section 17529.5 Need
Not Plead at a Fraud-Level of Particularity.................................. 9
B. The Exception to Federal Preemption is Not
Based on Fraud ........................................................................... 10

V.

Conclusion........................................................................................ 17

CERTIFICATE OF WORD COUNT ..................................................... 18


DECLARATION OF DANIEL L. BALSAM ......................................... 19
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TABLE OF AUTHORITIES
Page
California Cases
Balsam v. Trancos Inc. et al,
No. 471797 (Super. Ct. Cal. Cty. of San Mateo Mar.
10, 2010) (judgment and final statement of decision).................... 3, 8
Balsam v. Trancos Inc. et al,
203 Cal. App. 4th 1083 (1st Dist. 2012), petition for
review denied, 2012 Cal. LEXIS 4979 (Cal. May 23,
2012), petition for certiori denied, 2012 U.S. LEXIS
8423 (U.S. Oct. 29, 2012), petition for rehearing
denied, 2013 U.S. LEXIS 243 (U.S. Jan. 7, 2013)....................passim
Day v. AT&T Corporation,
63 Cal. App. 4th 325 (1st Dist. 1998) .............................................. 13
Elliott v. Albright,
209 Cal. App. 3d 1028 (6th Dist. 1989) ....................................... 8, 10
Farm Raised Salmon Cases,
42 Cal. 4th 1077 (2008).................................................................... 14
Ford Dealers Assoc. v. Dept. of Motor Vehicles,
32 Cal. 3d 347 (1982)....................................................................... 13
Hypertouch Inc v. ValueClick Inc. et al,
192 Cal. App. 4th 805 (2d Dist. 2011) ....................................... 10, 11
Jevne v. Superior Court,
35 Cal. 4th 935 (2005)...................................................................... 14
Kleffman v. Vonage Holdings Corp.,
49 Cal. 4th 334 (2010)................................................................ 3, 7, 8
People v. Gilbert,
1 Cal. 3d 475 (1969)........................................................................... 9
Rosolowksi v. Guthy-Renker LLC,
230 Cal. App. 4th 1403 (2d Dist. 2014) ................................... 8, 9, 10
Federal Cases
Altria Group Inc. v. Good,
555 U.S. 70, 129 S. Ct. 538 (2008) .................................................. 14
Asis Internet Services v. ConsumerBargainGive aways LLC,
622 F. Supp. 2d 935 (N.D. Cal. 2009) (order re Rule
12 motion) ........................................................................................ 16

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TABLE OF AUTHORITIES (cont.)


Page
Federal Cases (cont.)
Asis Internet Services v. Member Source Media LLC,
No. C-08-1321 EMC, 2010 U.S. Dist. LEXIS 47865
(N.D. Cal. Apr. 20, 2010)................................................................. 16
Asis Internet Services v. SubscriberBase Inc.,
No. 09-3503 SC, 2009 U.S. Dist. LEXIS 112852 (N.D.
Cal. Dec. 4, 2009) (order granting defendants motion
to dismiss)......................................................................................... 16
Asis Internet Services v. SubscriberBase Inc.,
No. 09-3503 SC, 2010 U.S. Dist. LEXIS 33645 (N.D.
Cal. Apr. 1, 2010) (order denying defendants motion
to dismiss)................................................................................... 15, 16
Asis Internet Services v. VistaPrint USA Inc.,
617 F. Supp. 2d 989 (N.D. Cal. 2009) (order re motion
to dismiss)......................................................................................... 16
Beyond Systems v. Keynetics Inc.,
No. PJM 04-686 (D. Md. Mar. 26, 2007) (order
denying defendants motion for other relief under
FRCP 7 and second renewed motion to dismiss for
lack of personal jurisdiction)...................................................... 14, 15
Davison Design & Development Inc. v. Riley,
No. 4:11-cv-02970 (PJH), 2012 U.S. Dist. LEXIS
131087 (N.D. Cal. Sept. 13, 2012) (order denying
motion to strike and granting motion to dismiss)............................. 17
Davison Design & Development Inc. v. Riley,
No. 4:11-cv-02970 (PJH) (N.D. Cal. Nov. 8, 2013)
(order re motion for summary judgment)......................................... 17
Gordon v. Virtumundo Inc.,
575 F.3d 1040 (9th Cir. 2009).......................................................... 15
Hoang v. Reunion.com Inc.,
No. C-08-3518 MMC, 2008 U.S. Dist. LEXIS 85187
(N.D. Cal. Oct. 3, 2008) ................................................................... 16

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TABLE OF AUTHORITIES (cont.)


Page
Federal Cases (cont.)
Hoang v. Reunion.com Inc.,
No. C-08-3518 MMC, 2010 U.S. Dist. LEXIS 34466
(N.D. Cal. Mar. 31, 2010) (order . . . denying
defendants motion to dismiss first amended
complaint)................................................................................... 13, 16
Moreland v. AD Optimizers LLC,
No. 5:13-cv-00216-PSG, 2013 U.S. Dist. LEXIS
102366 (N.D. Cal. July 18, 2013) (order granting-inpart defendants motion to dismiss) ................................................. 10
Omega World Travel Inc. v. Mummagraphics,
469 F.3d 348 (4th Cir. 2006)............................................................ 14
Smith v. Anastasia International Inc.,
No. 3:14-cv-1685-H-MDD (S.D. Cal. Sep. 15, 2014)
(order denying . . . motion to dismiss) ............................................. 17
Sprietsma v. Mercury Marine,
537 U.S. 51 (2002) ........................................................................... 12
Wagner v. Spire Vision et al,
No. 3:13-cv-04952-WHA, 2014 U.S. Dist. LEXIS
26902 (N.D. Cal. Mar. 3, 2014) (order granting
plaintiffs motion for partial summary judgment) ..................... 16, 17
California Statutes
Bus. & Prof. Code 17500 ......................................................................... 13
Bus. & Prof. Code 17529, 17529.5 .................................................passim
Federal Statutes and Senate Report
15 U.S.C. 7701 et seq. (CAN-SPAM Act)........................................passim
Senate Report No. 108-102 (1st Sess. 2003)......................................... 12, 16
Other Authorities
Internet Message Format, NETWORK WORKING GROUP,
https://tools.ietf.org/html/rfc5322 ...................................................... 7
What is a subdomain?, GODADDY, https://support.godaddy.
com/help/article/296/what-is-a-subdomain........................................ 5

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TABLE OF AUTHORITIES (cont.)


Page
Other Authorities (cont.)
What is a Subdomain Name? How Do I Create and Delete
One?, HOSTGATOR, http://support.hostgator.com/
articles/cpanel/what-is-a-subdomain-name-how-do-icreate-and-delete-one ..................................................................... 5, 6
What Are Subdomains and How do They Affect Search
Engine Optimization? The Facts, DOMAIN.ME,
http://domain.me/what-are-subdomains............................................. 6

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I.
INTRODUCTION
Plaintiff/Appellant Timothy DeWitt (DeWitt) sued Defendants/
Respondents Foot Locker Retail Inc. and 1ink.com for alleged violations of
Californias anti-spam law, Business & Professions Code 17529.5
(Section 17529.5). DeWitt is wrong on the facts and the law and he
cannot meet his burden of proof. But Respondents are wrong on facts and
points of law too.
This brief does not address standards of review, joinder, and other
legal topics with which this Court is well familiar. And because the Parties
have more familiarity with the procedural history, this brief will not address
everything that happened in the trial court. Instead, this brief focuses on
some of the intricacies of email advertising litigation with which the author
has considerable experience. Declaration of Daniel Balsam at 2.
DeWitts First Amended Complaint (FAC) is vague at best, failing
to establish that the emails From Names, sending domain names, and
Subject Lines violated Section 17529.5. Foot Locker and 1ink.com
incorrectly claim that truthful statements in the body of an email can cure
misrepresentations in the headers, and incorrectly argue that claims under
Section 17529.5 sound in fraud, implicating both pleading standards and
the exception to federal preemption
This Court should affirm the ruling of the trial court below. This
was a frivolous lawsuit, countered with some well-established and rejected
defenses. There is no new case law to be made here. Bad cases make bad
law, and this is a bad case. It should not result in precedential law.

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II.
THE EMAILS COMPLY WITH SECTION 17529.5
DeWitts FAC is vague, to say the least. Although he supposedly
received 345-355 spams1 advertising Foot Locker, the FAC provides a
textual description and attaches just one allegedly violative email.
Appellants Appendix (AA) Item 5 (FAC at 7-8 and Ex. A). And
although DeWitt supposedly received 30-35 spams2 advertising 1ink.com,
the FAC provides no textual descriptions or examples at all. AA Item 5
(FAC at 9).
Case law is clear that plaintiffs suing under Section 17529.5 do not
need to meet a fraud standard, infra. It is unreasonable to expect plaintiffs
to attach every single spam of which there could be hundreds or
thousands to a complaint. Still, it is reasonable to require plaintiffs to set
forth some kind of allegations that state the range/scope of statutory
violations, or at least provide multiple examples, even if not a
comprehensive, one-by-one listing.
Here, since DeWitt chose to only attach one Foot Locker email (and
no 1ink.com emails at all), this Court should presume that this email
embodies DeWitts strongest claims i.e., it is the worst of the worst
spams. Respondents are correct that DeWitt does not meet his burden of
proof to show violations of Section 17529.5, as discussed below.

It is unclear why DeWitt cannot state the number of Foot Locker emails
he received.
2

It is unclear why DeWitt cannot state the number of 1ink.com emails he


received.
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[PROPOSED] AMICUS CURIAE BRIEF

A. The From Name Foot Locker VIP Does Not Violate Section
17529.5
This Court need not concern itself with Respondents references to
Kleffman v. Vonage Holdings Corp., 49 Cal. 4th 334 (2010) and labeling
requirements, because the simple fact is that the instant emails From Name
says Foot Locker VIP and the email is in fact from Foot Locker. Truth
is not a labeling requirement, but there is no misrepresentation or falsity
here anyway. This email is just like the spam with eHarmony in the
From Name in the Balsam v. Trancos Inc. et al, 203 Cal. App. 4th 1083 (1st
Dist. 2012) case3 the only spam that did not contain generic text in the
From Name, and the only spam for which the court did not award
liquidated damages. The trial court ruled, and the court of appeal affirmed,
that generic From Names Paid Survey, Your Business, Christian
Dating, Your Promotion, Bank Wire Transfer Available, Dating
Generic, and Join Elite violate Section 17529.5, but the From Name
eHarmony does not violate the statute.
Paid Survey is not the name of any existing company, but
rather treats the from line as though an additional subject
line. . . . Other than the email for eHarmony, which does state
that it is from eHarmony, the seven other emails do not truly
reveal who sent the email. Thus the sender information
(from) is misrepresented.
Balsam v. Trancos Inc. et al, No. 471797 at *6, 23 (Super. Ct. Cal. Cty. of
San Mateo Mar. 10, 2010) (judgment and final statement of decision).
Balsam Decl. at 3 and Request for Judicial Notice (filed concurrently).
The court of appeal affirmed the trial court in all respects. Balsam, 203
Cal. App. 4th at 1089.

The author of this amicus brief was the plaintiff (and co-counsel until
trial) in Balsam v. Trancos. Balsam Decl. at 2.
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As a From Name, Foot Locker accurately represents who the


email is from, so hair-splitting arguments as to misrepresented versus
misleading header information are irrelevant.
But, in a weak attempt to create confusion where none exists,
DeWitt argues that
Foot Locker VIP would lead the ordinary consumer
recipient of the email to believe that the reason he/she was
receiving the promotional email is that they . . . were
somehow and specifically an existing preferred or VIP
customer of Foot Locker.
AA Item 5 (FAC at 7). This argument is facially ridiculous, because the
email header does not say or even suggest that the recipient is a very
important person. Rather, VIP appears in the From Name field. And
DeWitt never alleged that the email is not from a VIP at Foot Locker.
B. A Sending Email Address That Includes e.footlocker.com Does Not
Violate Section 17529.5
DeWitt argues that e.footlocker.com is a domain name, and alleges
that e.footlocker.com confuses and misleads the ordinary consumer because
it is not traceable through a Whois query. AA Item 5 (FAC at 7). DeWitt
is incorrect and appears to not understand the difference between a domain
name and a subdomain.
A domain name means any alphanumeric designation that is
registered with or assigned by any domain name registrar as part of an
electronic address on the Internet. Bus. & Prof. Code 17529.1(e).
Here, the domain name is footlocker.com, and it is compliant with not just
one but both of the requirements set forth by Balsam that the sending
domain name must identify the sender on its face or must be readily
traceable to the sender using a publicly available online database such as

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Whois. 203 Cal. App. 4th at 1101. According to DomainTools4 records,


footlocker.com was publicly registered to (and readily traceable to) Foot
Locker Retail Inc. on May 21, 2013 (the day before DeWitts exemplar
spam) and May 25, 2013 (three days after). Balsam Decl. at 4 and Ex. A.
There is no misrepresentation in the registration information accompanying
the emails headers.
The e. that DeWitt incorrectly claims makes e.footlocker.com
misleading is actually not part of the domain name at all, but rather a
subdomain. According to leading domain registrar GoDaddy Inc.:
A subdomain is an easy way to create a memorable Web
address for unique content areas of your site. For example,
you could create a subdomain for pictures on your site called
"pics" that is accessible through the URL pics.example.com
in addition to www.example.com/pics.
What is a subdomain?, GODADDY, https://support.godaddy.com/help/
article/296/what-is-a-subdomain (last visited Jan. 25, 2015).
Similarly, web hosting provider HostGator states:
It is not always necessary to register a new domain name
when the one you already own will work perfectly fine.
Rather than registering a new domain name, you can always
create a subdomain using a domain you already own.
4

DomainTools offers the most comprehensive searchable database of


domain name registration and hosting data. . . . [U]sers of DomainTools.
com can review millions of historical domain name records . . . . The
Companys comprehensive snapshots of past and present domain name
registration, ownership and usage data, in addition to powerful research and
monitoring resources, help customers by unlocking everything there is to
know about a domain name. DomainTools has almost five billion domain
name Whois records going back over ten years. Government agencies,
Fortune 500 companies and leading security firms use our data as a critical
ingredient in their threat investigation and mitigation work. About Us,
DOMAIN TOOLS, https://www.domaintools. com/about (last visited Jan. 25,
2015).
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A subdomain is a second website, with its own unique


content, but there is no new domain name. Instead, you use an
existing domain name and change the www to another name.
The subdomain name looks like forums.domain.com,
help.domain.com, help2.domain.com (assuming you already
host domain.com).
What is a Subdomain Name? How Do I Create and Delete One?,
HOSTGATOR, http://support.hostgator.com/articles/cpanel/what-is-asubdomain-name-how-do-i-create-and-delete-one (last visited Jan. 25,
2015) (emphasis added).
Finally, premium domain name provider Domain.me states:
Subdomains are a smaller part of a larger domain. The
Domain Name System (DNS) is all about hierarchy.
Everything starts with a Top Level Domain (TLD) like .com,
.org, .net, or, in our case, .me. After that, we have the next
step in domain names, like google.com, facebook.com, or for
us, domain.me. After that, we start with subdomains, like
calendar.google.com, plus.google.com, or blog.yourwebsite.
me. So now you know
What Are Subdomains and How do They Affect Search Engine
Optimization? The Facts, DOMAIN.ME, http://domain.me/what-aresubdomains (last visited Jan. 25, 2015) (emphasis in original).
In short, the domain name footlocker.com identifies Defendant Foot
Locker on its face and is readily traceable to Foot Locker by a Whois
query, now and when DeWitt received the email, and the e. subdomain
does nothing to change that.
C. The Subject Line Keep It Clean, Keep It Classy with Fresh White
Sneakers! Does Not Violate Section 17529.5
The Subject Line Keep It Clean, Keep It Classy with Fresh White
Sneakers! is not misleading as to the contents of the email, which
advertises Fresh & Clean white sneakers. Therefore, the Subject Line
complies with Section 17529.5(a)(3).
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[PROPOSED] AMICUS CURIAE BRIEF

But Subject Lines can also violate Section 17529.5(a)(2) if they are
absolutely false, as opposed to (a)(3) violations for Subject Lines that are
misleading relative to the contents of the body. Respondents incorrectly
claim that Subject Lines are not part of email headers, citing to Kleffman,
49 Cal. 4th at 340. It is true that Kleffman quotes the CAN-SPAM Act at
15 U.S.C. 7702(8), id. at 340 n.5, which states that
The header of an e-mail is 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.
Foot Locker Brief at 6, 1Ink.com Brief at 6, and AA Item 6 (Foot Locker
Demurrer at 4:25-28). But a careful reading indicates that, notwithstanding
Respondents claims to the contrary, Kleffman does not actually adopt the
federal definition. All Kleffman does is note that the plaintiff referred to the
federal definition and that there was no dispute in that case that domain
names were part of email headers. Kleffman never says that Subject Lines
are not part of headers.
Because computers must use standard protocols in order to
communicate, the Internet Engineering Task Force created a collection of
Requests for Comment (RFCs) that define the rules that enable email
to work. RFC 5322 2.2 is entitled Header Fields and 2.2.3 expressly
refers to the Subject as a header field. Internet Message Format, NETWORK
WORKING GROUP, https://tools.ietf.org/html/rfc5322 (last viewed Jan. 25,
2015). The CAN-SPAM Acts definition of email headers may exclude
Subject Lines, 15 U.S.C. 7702(8), but California courts can and should
apply Californias anti-spam law in accordance with standard industry
definitions and protocols.
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[PROPOSED] AMICUS CURIAE BRIEF

This Court need not follow federal definitions, particularly in


matters of California law. Elliott v. Albright, 209 Cal. App. 3d 1028 (6th
Dist. 1989). This is particularly true because, as Kleffman points out, the
California Legislature considered but did not adopt a definition similar to
the federal definition. 49 Cal. 4th at 340 n.5. Thus, Respondents have not
presented any authority that Subject Lines are not part of email headers.
If this Court chooses to address the topic at all, it should find that
Subject Lines are part of email headers. However, there is nothing
absolutely false or misrepresented about Keep It Clean, Keep It Classy
with Fresh White Sneakers! i.e., no violations of Section 17529.5(a)(2)
either.
III.
TRUTHFUL STATEMENTS IN THE BODY OF AN EMAIL
DO NOT CURE FALSIFIED OR MISREPRESENTED
INFORMATION IN THE HEADERS
Respondents suggest that truthful information in the body of an
email cures any false/misrepresented information in the headers. Foot
Locker Brief at 11-12.
In Balsam, the trial court ruled that generic text in the From Name
field such as Your Business and Christian Dating violated the statute,
and awarded statutory damages, even though most of the spams identified
the advertiser in the body. Balsam Decl. at 5 and Ex. B, and RJN. The
court of appeal affirmed the trial court in all respects. Balsam, 203 Cal.
App. 4th at 1088. Thus, identifying the advertiser in the body does not cure
misrepresentations created by generic text in the From Name field.
To the extent that Rosolowksi v. Guthy-Renker LLC, 230 Cal. App.
4th 1403, 1406, 1416 (2d Dist. 2014) ruled otherwise and there are
currently multiple requests to depublish Guthy-Renker pending before the
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[PROPOSED] AMICUS CURIAE BRIEF

California Supreme Court for precisely this issue, among others, Balsam
Decl. at 6 this Court should disregard Guthy-Renker because the ruling
violates well-established rules of statutory interpretation.5
That said, because the From Name in the exemplar email DeWitt
provided Foot Locker VIP does not contain any falsified or
misrepresented information, the email complies with Section 17529.5, and
this Court need not even consider Foot Lockers correct statement that
Foot Locker appears multiple times in the body.
IV.
CLAIMS UNDER SECTION 17529.5
HAVE NOTHING TO DO WITH FRAUD
A. Plaintiffs Suing Under Section 17529.5 Need Not Plead at a FraudLevel of Particularity
Although DeWitt failed to state facts supporting his claims under
Section 17529.5, Respondents argument that Section 17529.5 claims
sound in fraud and that DeWitt must plead with the corresponding level
5

Section 17529.5(a)(3) prohibits Subject Lines likely to mislead a


reasonable recipient about the subject matter or contents of a spam. Thus, a
court charged with determining whether a Subject Line violates (a)(3) must
analyze the Subject Line relative to the body. On the other hand, Section
17529.5(a)(2) prohibits falsified, misrepresented, or forged information
contained in or accompanying the email headers. Because there is
relative language in (a)(3) but not in (a)(2), a court must analyze the
From Names from an absolute perspective. A cardinal rule of
construction is that . . . a construction making some words surplusage is to
be avoided. People v. Gilbert, 1 Cal. 3d 475, 485 (1969) (citation
omitted). If a relative analysis were applied to (a)(2), that would make the
relative language in (a)(3) surplusage. However, by reviewing the From
Names Proactiv and Wen Hair Care in light of the contents of the body
(which identified the advertiser Guthy-Renker LLC), the court conducted a
relative analysis, Guthy-Renker, 230 Cal. App. 4th at 1406, 1416, even
though the plain language of the statute simply does not permit the court to
do so.
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[PROPOSED] AMICUS CURIAE BRIEF

of particularity, 1ink Brief at 7-10 and Foot Locker Brief at 15-18, go too
far. Both California courts of appeal addressing the preemption question
unambiguously held that Section 17529.5 claims depend on falsity and not
fraud. Hypertouch Inc. v. ValueClick Inc., 192 Cal. App. 4th 805, 820,
824-35 (2d Dist. 2011), accord, Balsam, 203 Cal. App. 4th at 1102.
Therefore, there is no need to plead at a fraud level of particularity.
In support of their position, Respondents cite to Moreland v. AD
Optimizers LLC, No. 5:13-cv-00216-PSG, 2013 U.S. Dist. LEXIS 102366
(N.D. Cal. July 18, 2013). Moreland is correct that plaintiffs asserting
claims grounded in fraud must plead with particularly, id. at *5, but
Moreland is incorrect that claims under Section 17529.5 are grounded in
fraud in the first place. Californias anti-spam law is facially about false
advertising, not fraud. Moreover, Moreland is an unpublished district court
case, and not binding on this Court. Elliott, supra.
B. The Exception to Federal Preemption is Not Based on Fraud
Because there is nothing false or deceptive about DeWitts exemplar
Foot Locker email, this Court need not reach the issue of whether the CANSPAM Acts exception to preemption is based on fraud or falsity.
Because we conclude Plaintiffs failed to state sufficient facts
to allege violation of section 17529.5, subdivision (a)(2)
(misrepresented header information) or subdivision (a)(3)
(misleading subject lines), it is unnecessary to address
Guthys argument the CAN-SPAM Act preempts Plaintiffs
claims.
Guthy-Renker, 230 Cal. App. 4th at 1418.
However, Respondents misrepresent the preemption issue and case
law as they try to revive this well-settled question. 1ink Brief at 21-24.
California state and federal courts consistently rule that Section 17529.5,
which only prohibits falsity and deception, fits squarely within the

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[PROPOSED] AMICUS CURIAE BRIEF

exception to preemption unambiguously set forth by 15 U.S.C.


7707(b)(1).
1. Both California Appellate Cases Hold That Section 17529.5 is
Not Preempted
As discussed above, Hypertouch and Balsam ruled that the
Section 17529.5 is not preempted, even without a showing of fraud.
Section 17529.5 does not include many elements associated
with traditional common law fraud
Like several other California consumer protection statutes
targeting deceptive advertising practices, section 17529.5
dispenses with many of the elements associated with common
law fraud, which normally requires the plaintiff to prove " '(a)
[a] misrepresentation ... ; (b) knowledge of falsity (or
'scienter'); (c) intent to defraud, i.e., to induce reliance; (d)
justifiable reliance; and (e) resulting damage.' "
[W]e . . . hold that the federal statute does not preempt state
law claims arising under section 17529.5.
The CAN-SPAM Acts savings clause applies to any state
law that prohibits material falsity or material deception in a
commercial e-mail regardless of whether such laws require
the plaintiff to prove and plead each and every element of
common law fraud.
Hypertouch, 192 Cal. App. 4th. at 820, 825, 833 (emphasis added). The
Court of Appeal of the First District then ruled: We find the reasoning of
Hypertouch persuasive on this [preemption] issue, and adopt it here.
Balsam, 203 Cal. App. 4th at 1102.
2. Congress Preempted State Laws Only as to Truthful Spams
In the interest of creating a national uniform standard for
commercial email, Congress chose to exclusively occupy the field of
truthful commercial email. But Congress deliberately limited the scope of
federal preemption, expressly authorizing the states to define and regulate
false or deceptive spam. 15 U.S.C. 7707(b)(1).
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[PROPOSED] AMICUS CURIAE BRIEF

3. The Exception to Preemption Cannot Depend on Common-Law


Fraud, Because Such Claims Were Never Preempted in the
First Place
The preemption clause at issue deals only with positive enactments
(statute, regulation or rule), not common law. See Sprietsma v. Mercury
Marine, 537 U.S. 51, 63 (2002). The CAN-SPAM Act preempts certain
positive enactments and then saves a subcategory of those laws. 15 U.S.C.
7707(b)(1). Thus, there is no need to save common-law fraud claims,
because they were never preempted in the first place.
4. Congress Use of Falsity and Fraud So Close Together
Indicates that Congress Meant Two Different Things
Congress used the words falsity or deception in the exception to
preemption provision applicable to state laws regulating email, 15 U.S.C.
7707(b)(1), but used the word fraud immediately afterwards in
Section 7707(b)(2)(B) to address laws not specific to email. Different
terms, so close together, clearly indicate that Congress did not intend that
state anti-spam laws survive federal preemption only when a plaintiff
alleges common-law fraud (i.e., reliance and actual damages). If Congress
had intended (b)(1) to mean fraud, then (b)(1) would be superfluous,
because it would be subsumed by (b)(2)(B).
5. The Disjunctive Or Demonstrates that the Exception to
Preemption Cannot Depend Only on Fraud
Senate Report No. 108-102 at *21 (1st Sess. 2003), accompanying
the CAN-SPAM Act, repeatedly referred to preemption except for fraud or
deception. The repeated use of or confirms that: 1) deceptive cannot mean
fraudulent, for if it did, then the phrase fraudulent or deceptive itself
would be redundant, and 2) Congress did not intend that the exception to
preemption depends only upon a finding of fraud. Therefore, state statutes
prohibiting deceptive spams like Section 17529.5 are not preempted.
12
[PROPOSED] AMICUS CURIAE BRIEF

6. In Business & Professions Code 17500 Actions, Fraud


Means the Likelihood of Deception
Even if Congress meant fraud instead of falsity, Congress cannot
write laws for the states. It is well established under California law that in
the context of Business & Professions Code 17500 actions, fraud does
not mean the traditional common law tort of fraud (including reliance), but
rather the likelihood of deception. Allegations of actual deception,
reasonable reliance, and damage are unnecessary. Day v. AT&T Corp., 63
Cal. App. 4th 325, 332 (1st Dist. 1998). And,
The evils of deceptive advertising cannot be reached
effectively if legislation to that end is interpreted to require
proof of actual reliance upon a false statement knowingly
made, as in a common law action in deceit.
Ford Dealers Assoc. v. Dept. of Motor Vehicles, 32 Cal. 3d 347, 359
(1982).
7. Congress was Aware of State Anti-Spam Laws Prohibiting
False Spams When it Enacted the CAN-SPAM Act, and
Intentionally Chose Not to Use Fraud in the Exception to
Preemption Provision
Hoang v. Reunion.com Inc. noted that Congress was aware that
many states prohibited false and deceptive spams without requiring reliance
or actual damages, and still chose to preempt state anti-spam laws except
for falsity, not fraud. No. C-08-3518 MMC, 2010 U.S. Dist. LEXIS 34466
at *17-19 (N.D. Cal. Mar. 31, 2010) (emphasis added). Thus, if Congress
really wanted to preempt state laws except for fraud, it could and would
have simply used only the word fraud in the exception to preemption
provision. However, Congress did not do so.

13
[PROPOSED] AMICUS CURIAE BRIEF

8. Preemption is Disfavored, Especially as to Areas Traditionally


Regulated by States
As the U.S. Supreme Court held, [W]hen the text of a pre-emption
clause is susceptible of more than one plausible reading, courts ordinarily
accept the reading that disfavors pre-emption. Altria Group Inc. v.
Good, 555 U.S. 70, 77 (2008) (citation omitted). And, Where the field
which Congress is said to have pre-empted includes areas that have been
traditionally occupied by the States, congressional intent to supersede state
laws must be clear and manifest. Jevne v. Superior Court, 35 Cal. 4th
935, 949 (2005). Advertising is traditionally an area of state regulation,
and [c]onsumer protection laws such as the [UCL], false advertising law,
and CLRA, are within the states' historic police powers and therefore are
subject to the presumption against preemption. Farm Raised Salmon
Cases, 42 Cal. 4th 1077, 1088 (2008). Therefore, there is a presumption
against preemption of laws prohibiting deceptive acts laws such as
Section 17529.5.
9. Omega World Travel v. Mummagraphics Does Not Stand for
the Proposition of Categorical Preemption Except for Fraud
Even if the Fourth Circuits ruling in Omega World Travel Inc. v.
Mummagraphics, 469 F.3d 348 (4th Cir. 2006) were binding on this Court,
which it is not, Omega does not state that the CAN-SPAM Act
categorically preempts all state anti-spam laws except for common-law
fraud. Omega considered only the claims of a particular plaintiff suing
under Oklahoma law, and found that his claims were preempted because
they were based on immaterial falsity and technical error. Id. at 353-55,
359. In fact, Omegas facts and holding are so narrow that a district court
in Maryland part of the Fourth Circuit did not follow Omega when it
held that the CAN-SPAM Act did not preempt Marylands anti-spam law.

14
[PROPOSED] AMICUS CURIAE BRIEF

Beyond Systems v. Keynetics Inc., No. PJM 04-686 (D. Md. Mar. 26, 2007)
(order denying defendants motion for other relief under FRCP 7 and
second renewed motion to dismiss for lack of personal jurisdiction). Thus,
Omega cannot and does not have general applicability.
10. Gordon v. Virtumundo Does Not Support the Assertion that the
CAN-SPAM Act Preempts State Laws Except for Fraud
Spammers also like to claim that Gordon v. Virtumundo Inc., 575
F.3d 1040 (9th Cir. 2009) holds that spam claims under state laws are
preempted except for those arising from traditional tort theories such as
fraud. But they are wrong. In fact, Gordon states that Congress carved
out from preemption state laws that proscribe falsity or deception in
commercial e-mail communications and that Congress did not intend that
states retain unfettered freedom to create liability for immaterial
inaccuracies or omissions. 575 F.3d at 1061-62 (emphasis added).
Critically, Asis Internet Services v. SubscriberBase Inc. pointed out
that the Ninth Circuit ruled that Jim Gordons claims were preempted not
because he did not allege reliance and damages, but rather because
Washingtons anti-spam law was overbroad and purport[ed] to regulate a
vast array of non-deceptive acts and practices. No. 09-3503 SC, 2010
U.S. Dist. LEXIS 33645 at *31-32 (N.D. Cal. Apr. 1, 2010). Thus, Gordon
ruled only that Washingtons anti-spam law was preempted because it was
overly broad, prohibiting even truthful spam, such that it did not fit into
the exception to preemption set forth at 15 U.S.C. 7707(b)(1). But
Californias anti-spam law has a stand alone subsection, Section 17529.5,
that is expressly limited to falsified, misrepresented, forged, and misleading
spam. Therefore, Section 17529.5 the exact terms of which were known
to Congress when it passed the CAN-SPAM Act fits squarely within the
exception to preemption.
15
[PROPOSED] AMICUS CURIAE BRIEF

11. The District Courts in California Have Consistently Ruled that


the Exception to Preemption is Based on Falsity, not Fraud
To the extent that rulings from the federal district courts in
California are persuasive authority, any argument that Section 17529.5
claims are preempted except for common-law fraud fails in light of the fact
that the district courts consistently rule, based on the construction of the
CAN-SPAM Act (fraud appears in 15 U.S.C. 7707(b)(2)(B) but not
(b)(1)) and Senate Report No. 108-102 (using the disjunctive fraud or
deception), that the exception to preemption does not require plaintiffs to
plead reliance and damages.
Prior to the Ninth Circuits ruling in Gordon, Asis Internet Services
v. ConsumerBargainGiveaways LLC, 622 F. Supp. 2d 935, 941-42 (N.D.
Cal. 2009) and Asis Internet Services v. VistaPrint USA, 617 F. Supp. 2d
989, 993 both ruled that the CAN-SPAM Act does not preempt Section
17529.5.
Hoang v. Reunion.com initially (prior to Gordon) dismissed
plaintiffs complaint on preemption grounds because they did not allege
common-law fraud (i.e., reliance and actual damages). No. C-08-3518
MMC, 2008 U.S. Dist. LEXIS 103659 (N.D. Cal. Dec. 23, 2008). But after
and in direct response to Gordon, the court reversed itself on Hoangs
motion for reconsideration, expressly ruling that the exception to
preemption does not depend on common-law fraud/reliance. 2010 U.S.
Dist. LEXIS 34466 at *5, 15-21.
Following Gordon, Asis Internet Services v. SubscriberBase Inc.,
No. 09-3503 SC, 2009 U.S. Dist. LEXIS 112852 at *9 (N.D. Cal. Dec. 4,
2009) and 2010 U.S. Dist. LEXIS 33645 at *34-35; Asis Internet Services
v. Member Source Media, No. C-08-1321 EMC, 2010 U.S. Dist. LEXIS
47865 at *9-11 (N.D. Cal. Apr. 20, 2010); Wagner v. Spire Vision et al, No.
16
[PROPOSED] AMICUS CURIAE BRIEF

3:13-cv-04952-WHA, 2014 U.S. Dist. LEXIS 26902 at *3, 8, 11 (N.D. Cal.


Mar. 3, 2014); and Smith v. Anastasia International Inc., No. 3:14-cv-1685H-MDD (S.D. Cal. Sep. 15, 2014) all similarly ruled that the exception to
preemption is based on falsity and not fraud; no showing of reliance or
actual damages is necessary to avoid preemption.
In Davison Design & Development Inc. v. Riley, the court also
initially dismissed the spam recipients counter-claims. No. 4:11-cv-02970
(PJH), 2012 U.S. Dist. LEXIS 131087 (N.D. Cal. Sept. 13, 2012).
However, just like Hoang, the court subsequently reversed itself, ruling that
Gordon does not limit the exception to preemption to fraud claims. Order
re Motion for Summary Judgment (Nov. 8, 2013).
V. CONCLUSION
Although Respondents made incorrect statements to the trial court
below and to this Court, those incorrect statements do not change the fact
that in the end, DeWitt failed to make his case. With all of the millions of
undisputedly false and deceptive spams out there, DeWitt inexplicably
chose to sue over emails that, even according to his own allegations, simply
do not violate Section 17529.5. Whatever this Court may rule, a case like
this should not set legal precedent.

LAW OFFICES OF DANIEL BALSAM


Dated: Jan. 26, 2015

/s/ Daniel L. Balsam


Daniel L. Balsam
Attorneys for Amicus Curiae Jay Fink

17
[PROPOSED] AMICUS CURIAE BRIEF

CERTIFICATE OF WORD COUNT


(California Rules of Court, Rule 8.204(c)(1)

The text of this brief consists of 4,747 words, excluding tables, this
certificate, the following Declaration, and the following Request for
Judicial Notice, as counted by the Microsoft Word 2003 word processing
program used to generate the brief.

LAW OFFICES OF DANIEL BALSAM


Dated: Jan. 26, 2015

/s/ Daniel L. Balsam


Daniel L. Balsam
Attorneys for Amicus Curiae Jay Fink

18
[PROPOSED] AMICUS CURIAE BRIEF

DECLARATION OF DANIEL L. BALSAM


I, Daniel Balsam, declare as follows:
1. I am an attorney duly licensed to practice law before this Court. I do
not represent any Parties in this Action. I represent Jay Fink and
dozens of other clients who have an interest in the outcome of this
litigation. I make this Declaration based upon personal knowledge.
If called upon to do so, I could and would testify to the truth of the
facts stated in this Declaration.
2. My reputation as a consumer advocate and suing unlawful spammers
is well-documented. I have being suing spammers under California
Business & Professions Code 17529.5 (and its predecessor,
Section 17538.4) since 2002. My transition from a marketing career
(New York advertising agencies, MBA from The Anderson School
at UCLA, and marketing roles at brick and mortar and Internet
companies) to suing spammers has been documented by CNN,
MSNBC, The Today Show, CBS/San Francisco Consumer Watch,
Fox News, Time Magazine, California Lawyer, Trial Lawyer,
dozens of other print and online articles via Associated Press, and
dozens of radio interviews. Newsweek says Im awesome. See
www.DanHatesSpam.com. I worked with (former) Senator Kevin
Murrays office and contributed several points to Senate Bill 186
(2003), which became Business & Professions Code 17529. I have
won more than 50 small claims actions against spammers in courts
across the state, beginning long before I graduated from law school
(U.C. Hastings) in 2008. On behalf of my clients, I have settled
hundreds of disputes over allegedly unlawful spams, and I have
represented spam recipients in dozens of lawsuits in California
19
[PROPOSED] AMICUS CURIAE BRIEF

superior courts and federal courts across the state, including a class
action entitled Kirby v. Spark Networks USA LLC, No. BC493892
(Super. Ct. Cal. Cty. of Los Angeles filed Oct. 16, 2012), which
recently settled. I was co-counsel (until trial) and plaintiff in Balsam
v. Trancos Inc., 203 Cal. App. 4th 1083, 1100 (1st Dist. 2012),
petition for review denied, 2012 Cal. LEXIS 4979 (Cal. May 23,
2012), petition for certiori denied, 2012 U.S. LEXIS 8423 (U.S. Oct.
29, 2012), petition for rehearing denied, 2013 U.S. LEXIS 243 (U.S.
Jan. 7, 2013), which was the third California appellate ruling related
to spam, and the first to apply the statute to determine whether
certain From Names were compliant. In short: I know this space as
well as anyone, and far better than most. My interest, drawing on
my own experience in advertising, is in prohibiting false and
deceptive spam. It is worth noting that advocating for consumers
does not mean that I am against email marketing. To the contrary, I
believe that truthful email marketing is a powerful tool. Moreover,
the work I do suing unlawful spammers actually reduces unfair
competition and benefits legitimate advertisers who do not promote
their services through deceptive spams.
3. In Balsam v. Trancos Inc., the trial court awarded, and the court of
appeal affirmed, liquidated damages for seven of the eight spams at
issue with generic text in the From Name field (Paid Survey,
Your Business, Christian Dating, Your Promotion, Bank
Wire Transfer Available, Dating Generic, and Join Elite), but
not for the spam with eHarmony in the From Name.
4. I queried the Whois database and found that the domain name
footlocker.com was created on March 9, 1995. Footlocker.com was

20
[PROPOSED] AMICUS CURIAE BRIEF

publicly registered to (and readily traceable to) Foot Locker Retail


Inc. on both May 21, 2013 and May 25, 2013. Exhibit A is a true
and correct of historical Whois queries using DomainTools.com.
5. In Balsam v. Trancos Inc., the trial court ruled that generic text in
the From Name field such as Your Business and Christian
Dating violated the statute, and awarded liquidated damages, even
though most of the spams identified the advertiser in the body.
Exhibit B is a true and correct copy of one exemplar Trancos spam.
6. There are currently multiple requests to depublish Rosolowski v.
Guthy-Renker LLC pending before the California Supreme Court
because Guthy held that alternatives to a senders official name in
the From Name field are permissible as long as the sender is readily
ascertainable in the body, and because the court confused advertisers
and senders, among other issues. I submitted one of the requests.

I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and this Declaration was signed on
January 26, 2015 in Alameda, California.

/s/ Daniel L. Balsam


Daniel L. Balsam

21
[PROPOSED] AMICUS CURIAE BRIEF

Exhibit A
Historical Whois Queries for Footlocker.com as of
May 21, 2013 and May 25, 2013

Footlocker.com - Whois History - DomainTools

Page 1 of 3

Home >b Whois History >b Footlocker.com

Whois History for Footlocker.com

How does this work?

Lookup Domain Ownership History


footlocker.com
LOOKUP

ONE-CLICK MONITORING

Create a Domain Monitor to monitor future changes to footlocker.com.


Monitor Footlocker.com

Enter a term to filter on

Unique Records

collapse all

bbprivate
1,538 historical records found
2015

5 total

2015-01-22

more b|b screenshot

2015-01-20

more b|b screenshot

2015-01-14

more b|b screenshot

2015-01-09

more b|b screenshot

https://www.domaintools.com/research/whois-history/search/?q=e.footlocker.com

1/25/2015

Footlocker.com - Whois History - DomainTools

2015-01-06

Page 2 of 3

more b|b screenshot

2014

82 total

2014-12-26

more b|b screenshot

2014-12-20

more b|b screenshot

2014-12-19

more b|b screenshot

2014-12-17

more b|b screenshot

2014-11-24

more b|b screenshot

2014-11-23

more b|b screenshot

2014-11-18

more b|b screenshot

2014-11-08

more b|b screenshot

2014-11-06

more b|b screenshot

2014-11-05

more b|b screenshot

2014-11-03

more b|b screenshot

scroll for more records

Whois Record for 2013-05-21


Previous (2013-05-20)

Next (2013-05-25)

Domain:
footlocker.com

Record Date: 2013-05-21


Registrar:

MARKMONITOR INC.

Server:

whois.markmonitor.com

Created:

1995-03-09

Updated:

2012-12-11

Expires:

2014-03-10

Reverse Whois:
counsel@footlocker.com 

domain_admin@eastbay.com 

https://www.domaintools.com/research/whois-history/search/?q=e.footlocker.com

1/25/2015

Footlocker.com - Whois History - DomainTools

Page 3 of 3

Registrant:
Corporate Counsel
Foot Locker Retail, Inc.
112 West 34th St.
New York NY 10120
US
counsel@footlocker.com +1.2127203907 Fax: +1.2127204116
Domain Name: footlocker.com
Registrar Name: Markmonitor.com
Registrar Whois: whois.markmonitor.com
Registrar Homepage: http://www.markmonitor.com
Administrative Contact:
Domain Admin
Eastbay, Inc.
111 South 1st Ave
Wausau WI 54401
US
domain_admin@eastbay.com +1.7152619642 Fax:
Technical Contact, Zone Contact:
Director of Operations
Eastbay, Inc.
111 South 1st Ave.
Wausau WI 54401
US
domain_admin@eastbay.com +1.7152619642 Fax: +1.7152619559
Created on..............: 19950308.
Expires on..............: 20140309.
Record last updated on..: 20130428.
Domain servers in listed order:
ns113.akam.net
ns566.akam.net
ns464.akam.net
ns766.akam.net

Sitemap

Blog

Terms of Service

Privacy Policy

Contact Us

Domain News

2015 DomainTools

https://www.domaintools.com/research/whois-history/search/?q=e.footlocker.com

1/25/2015

Footlocker.com - Whois History - DomainTools

Page 1 of 3

Home >b Whois History >b Footlocker.com

Whois History for Footlocker.com

How does this work?

Lookup Domain Ownership History


footlocker.com
LOOKUP

ONE-CLICK MONITORING

Create a Domain Monitor to monitor future changes to footlocker.com.


Monitor Footlocker.com

Enter a term to filter on

Unique Records

collapse all

bbprivate
1,538 historical records found
2015

5 total

2015-01-22

more b|b screenshot

2015-01-20

more b|b screenshot

2015-01-14

more b|b screenshot

2015-01-09

more b|b screenshot

https://www.domaintools.com/research/whois-history/search/?q=e.footlocker.com

1/25/2015

Footlocker.com - Whois History - DomainTools

2015-01-06

Page 2 of 3

more b|b screenshot

2014

82 total

2014-12-26

more b|b screenshot

2014-12-20

more b|b screenshot

2014-12-19

more b|b screenshot

2014-12-17

more b|b screenshot

2014-11-24

more b|b screenshot

2014-11-23

more b|b screenshot

2014-11-18

more b|b screenshot

2014-11-08

more b|b screenshot

2014-11-06

more b|b screenshot

2014-11-05

more b|b screenshot

2014-11-03

more b|b screenshot

scroll for more records

Whois Record for 2013-05-25


Previous (2013-05-21)

Next (2013-05-26)

Domain:
footlocker.com

Record Date: 2013-05-25


Registrar:

MARKMONITOR INC.

Server:

whois.markmonitor.com

Created:

1995-03-09

Updated:

2012-12-11

Expires:

2014-03-10

Reverse Whois:
counsel@footlocker.com 

domain_admin@eastbay.com 

https://www.domaintools.com/research/whois-history/search/?q=e.footlocker.com

1/25/2015

Footlocker.com - Whois History - DomainTools

Page 3 of 3

Registrant:
Corporate Counsel
Foot Locker Retail, Inc.
112 West 34th St.
New York NY 10120
US
counsel@footlocker.com +1.2127203907 Fax: +1.2127204116
Domain Name: footlocker.com
Registrar Name: Markmonitor.com
Registrar Whois: whois.markmonitor.com
Registrar Homepage: http://www.markmonitor.com
Administrative Contact:
Domain Admin
Eastbay, Inc.
111 South 1st Ave
Wausau WI 54401
US
domain_admin@eastbay.com +1.7152619642 Fax:
Technical Contact, Zone Contact:
Director of Operations
Eastbay, Inc.
111 South 1st Ave.
Wausau WI 54401
US
domain_admin@eastbay.com +1.7152619642 Fax: +1.7152619559
Created on..............: 19950308.
Expires on..............: 20140309.
Record last updated on..: 20130428.
Domain servers in listed order:
ns113.akam.net
ns766.akam.net
ns464.akam.net
ns566.akam.net

Sitemap

Blog

Terms of Service

Privacy Policy

Contact Us

Domain News

2015 DomainTools

https://www.domaintools.com/research/whois-history/search/?q=e.footlocker.com

1/25/2015

Exhibit B
Exemplar Trancos Spam

Yahoo! Mail - dan_in_sf@yahoo.com

Page 1 of 2

Print - Close Window


From ChristianDating Fri Jul 27 07:51:57 2007
X-Apparently-To:

dan_in_sf@yahoo.com via 68.142.207.105; Fri, 27 Jul 2007 06:47:00 -0700

X-YahooFilteredBulk:

75.140.65.210

X-Originating-IP:

[75.140.65.210]

Return-Path:

<2-146444-yahoo.com?dan_in_sf@fnycrmx.moussetogether.com>

Authentication-Results: mta254.mail.mud.yahoo.com from=moussetogether.com; domainkeys=pass (ok)


Received:

from 75.140.65.210 (HELO fnycrmx.moussetogether.com) (75.140.65.210) by mta254.mail.mud.yahoo.com with


SMTP; Fri, 27 Jul 2007 06:47:00 -0700

Comment:

DomainKeys? See http://antispam.yahoo.com/domainkeys

DomainKey-Signature:

a=rsa-sha1; q=dns; c=simple; s=s512; d=moussetogether.com;


b=vY03t4XOXuy0OIY1qJB5Dr27l2CgPHQuxBhGNu5KuwakPjbh+EIen0O3CwFSTpP14G4nslZAKa0U13KfVHDpzw==;

Received:

from fnycrmx.moussetogether.com [75.140.65.210] by moussetogether.com [75.140.65.210]; Fri, 27 Jul 2007


06:51:57 PST

MIME-Version:

1.0

From:

"ChristianDating" <ChristianDating@moussetogether.com>

To:

dan_in_sf@yahoo.com

Subject:

Date single Christians

Content-Type:

multipart/alternative; boundary="-=653e0c490395cd715e25d3ef4e4a40b5";

Date:

Fri, 27 Jul 2007 06:51:57 PST

Message-ID:

<2-146444-8QLD_hD_RB9.Lwtt78tS@fnycrmx.moussetogether.com>

X-Mailer:

3.2.14-57 [May 31 2007, 16:32:10]

Content-Length:

2654

On 2007-07-11, you submited dan_in_sf@yahoo.com to receive email offers. We recorded your IP address 64.184.86.246 at the
time of opt in.
This is an advertisement.

Can't View Image?

http://us.f320.mail.yahoo.com/ym/ShowLetter?box=%40B%40Bulk&MsgId=2947_0_161... 7/27/2007

Yahoo! Mail - dan_in_sf@yahoo.com

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<2;4H4B_eB_CTDi4o66Ku6z;146444>

http://us.f320.mail.yahoo.com/ym/ShowLetter?box=%40B%40Bulk&MsgId=2947_0_161... 7/27/2007

No. A141847
Timothy DeWitt v. Foot Locker Retail Inc. and 1ink.com
PROOF OF SERVICE AND DELIVERY
I, Daniel L. Balsam, declare that:
I am at least 18 years of age and not a party to the above-entitled
action. My business address is: The Law Offices of Daniel Balsam, 2601C
Blanding Avenue #271, Alameda, CA 94501.
I served the following documents on January 26, 2015:
Application to File Amicus Curiae Brief of Jay Fink
[Proposed] Amicus Curiae Brief of Jay Fink
Request for Judicial Notice in Support of Amicus Curiae
Brief of Jay Fink
I served the documents on Appellant Timothy A. DeWitt,
Respondent Foot Locker Retail Inc., and Respondent 1ink.com via
TrueFiling.
I served a text-searchable PDF copy of the documents on the
California Supreme Court by uploading the brief to the Supreme Courts
website (http://www.courts.ca.gov/24590.htm).
I deposited a copy of the documents in a sealed envelope with the
U.S. Postal Service, with the postage fully prepaid, addressed to:
Hon. Ernest Goldsmith, 400 McAllister Street, Dept. 302, San
Francisco, CA 94102
Appellate Coordinator Office of the Attorney General, 455
Golden Gate Avenue, Suite 11000, San Francisco, CA 94102
District Attorney of San Francisco County, 732 Brannan
Street, San Francisco, CA 94103
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct. Executed this 26th day of
January, 2015 at Alameda, California.
/s/ Daniel L. Balsam
Daniel L. Balsam