William Silverstein, individually v. KEYNETICS, INC., a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM SILVERSTEIN, individually and
on behalf of all other California residents
similarly situated,
Plaintiff-Appellant,
v.
KEYNETICS, INC., a Delaware
corporation; CLICK SALES, INC., a
Delaware corporation; 418 MEDIA, LLC.,
an Ohio limited liability company; LEWIS
HOWES,
Defendants-Appellees,
and
INSPIRED MARKETING, LLC; SEAN
MALARKEY,
Defendants.
No. 17-15176
D.C. No. 4:16-cv-00684-DMR
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding
Argued and Submitted February 12, 2018
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 6 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: KLEINFELD and TALLMAN, Circuit Judges, and JACK,** District
Judge.
Appellant William Silverstein alleges that he has received unsolicited
commercial e-mails, colloquially known as “spam,” from Appellees Keynetics,
Inc. and Click Sales, Inc., operating in conjunction with other Appellees. The
district court dismissed Silverstein’s first and second amended complaints on the
ground that his claims under California Business & Professional Code § 17529.5
were preempted by the Controlling the Assault of Non-Solicited Pornography and
Marketing Act of 2003, 15 U.S.C. § 7701 et seq. (CAN-SPAM Act). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. The e-mails’ use of the LinkedIn.com domain name is not materially
false or misleading within the meaning of the CAN-SPAM Act. See Gordon v.
Virtumundo, 575 F.3d 1040, 1062–64 (9th Cir. 2009). Although LinkedIn itself
did not send the e-mails, LinkedIn has an automatic e-mail feature that allows
LinkedIn group members to communicate with each other. The parties do not
dispute that the e-mails actually originated from the LinkedIn.com domain, and
that the senders of the e-mails would have to have been members of LinkedIn to
send the e-mails.
** The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.

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Silverstein at most has alleged that other LinkedIn users violated the terms
of LinkedIn’s user agreement by using the LinkedIn domain to contact him and
other group members with unauthorized spam or advertising. However, the
senders’ conduct does not make use of the LinkedIn domain name materially false
or misleading because the e-mails did come from a LinkedIn member.
Accordingly, use of the domain does not rise to the level of “traditionally tortious
or wrongful conduct,” as required to escape CAN-SPAM Act preemption. See
Gordon, 575 F.3d at 1062 (quoting Omega World Travel, Inc. v. Mummagraphics,
Inc., 469 F.3d 348, 354 (4th Cir. 2006)).
2. The “From” names were also not materially false or misleading.
Silverstein did not allege that the individuals listed in the “From” field were
actually known to him and that the senders misappropriated those names. Cf., e.g.,
Hoang v. Reunion, No. C-08-3518 MMC, 2010 WL 1340535, at *6 (N.D. Cal.
Mar. 31, 2010) (holding that a § 17529.5 claim was not barred by Gordon where
“plaintiffs allege that each plaintiff received an e-mail indicating the sender was an
actual person known to such recipient, when, in fact, the e-mails were sent by
defendant”). Nor did Silverstein allege that the “From” names deceived him as to
the nature of the e-mails. It is hard to see how they could have, given that the
“From” names were adjacent to clearly commercial subject lines, such as “How a
newbie banked $5K THIS WEEK . . . What Nobody Told You About.”

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In short, the use of fictitious “From” names does not make an e-mail header
materially false or misleading within the meaning of the CAN-SPAM Act where
those names do not “spoof” the identities of individuals known to the recipient and
are accompanied by accurate domain names and subject lines that make it clear the
e-mail is commercial in nature. Therefore, Silverstein’s claim is preempted by the
CAN-SPAM Act.
Each party shall bear its own costs.
AFFIRMED.

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