Omega World Travel v. Mummagraphics Inc , 469 F.3d 348 ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OMEGA WORLD TRAVEL, 
INCORPORATED; CRUISE.COM,
INCORPORATED; GLORIA BOHAN;
DANIEL BOHAN,
Plaintiffs-Appellees,
v.
MUMMAGRAPHICS, INCORPORATED,
d/b/a Webguy Internet Solutions,  No. 05-2080
d/b/a Webguy.net, d/b/a
SueaSpammer.com,
Defendant-Appellant,
and
MARK W. MUMMA, in his individual
capacity,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-05-122)
Argued: September 21, 2006
Decided: November 17, 2006
Before WILKINSON and DUNCAN, Circuit Judges, and
Richard L. VOORHEES, United States District Judge for the
Western District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Duncan and Judge Voorhees joined.
2 OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC.
COUNSEL
ARGUED: Kelly O. Wallace, WELLBORN & WALLACE, L.L.C.,
Atlanta, Georgia, for Appellant. James P. Hodges, Leesburg, Virginia,
for Appellees. ON BRIEF: Richard S. Toikka, METROPOLITAN
LEGAL SERVICES, L.L.C., Rockville, Maryland, for Appellant.
Thomas J. Powell, Fairfax, Virginia, for Appellees.
OPINION
WILKINSON, Circuit Judge:
Countless commercial e-mail messages, known colloquially as
"spam," pass through the Internet every day, inspiring frustration,
countermeasures, and — as here — lawsuits. Based upon eleven com-
mercial e-mail messages, Mummagraphics, Inc., a provider of online
services, seeks significant statutory damages from Omega World
Travel, Inc., a Virginia-based travel agency ("Omega"); Gloria
Bohan, Omega’s president and founder; and Cruise.com, Inc., a
wholly owned subsidiary of Omega (collectively, "appellees"). Mum-
magraphics alleges that Cruise.com sent the messages in violation of
the Controlling the Assault of Non-Solicited Pornography and Mar-
keting Act of 2003 ("CAN-SPAM Act"), 15 U.S.C. §§ 7701 et seq.,
as well as Oklahoma law.
The district court awarded summary judgment to the appellees on
all of Mummagraphics’ claims and we affirm. The CAN-SPAM Act
preempts Mummagraphics’ claims under Oklahoma’s statutes. In
addition, Mummagraphics failed to allege the material inaccuracies or
pattern of failures to conform to opt-out requirements that is neces-
sary to establish liability under the CAN-SPAM Act. The CAN-
SPAM Act addresses "spam" as a serious and pervasive problem, but
it does not impose liability at the mere drop of a hat.
I.
Appellant Mummagraphics, Inc., d/b/a Webguy Internet Solutions,
is an Oklahoma corporation with its only place of business in Okla-
OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC. 3
homa City. According to Mark Mumma, the company’s president,
Mummagraphics hosts web pages, registers domain names, designs
web pages and logos, and sets up computer servers. Mummagraphics
also operates websites devoted to opposing "spam" messages includ-
ing "sueaspammer.com." In addition, Mummagraphics runs a website,
"OptOutByDomain.com," that lists Internet domain names — roughly
seventy of 347 of which are operated by Mummagraphics — whose
owners have indicated that they do not wish to receive unsolicited
commercial e-mail messages. Mummagraphics owns the domain
name webguy.net and uses the e-mail account inbox@webguy.net for
company purposes.
Cruise.com operates a website selling cruise vacations and sends e-
mail advertisements — dubbed "E-deals" — to prospective custom-
ers. It sent eleven "E-deals" containing travel offers to
inbox@webguy.net between December 29, 2004 and February 9,
2005. Each message contained a line of text on which the recipient
could click in order to be removed from future mailings, and each
message also said that the recipient could opt-out of future e-mails by
writing to a postal address contained in each message. Each message
also contained a link to the Cruise.com website and a toll-free phone
number for the company.
Mummagraphics claims that the messages contained several inac-
curacies. First, each message stated that the recipient had signed up
for the Cruise.com mailing list, but Mummagraphics alleges that it
had not asked that inbox@webguy.net receive the company’s offers.
Second, while each message listed Cruise.com as the sending organi-
zation, each also included the address "FL-Broadcast.net" in its
header information, even though Mummagraphics alleges that "FL-
Broadcast.net" is not an Internet domain name linked to Cruise.com
or the other appellees. In addition, the messages contained the "from"
address cruisedeals@cruise.com, even though Cruise.com had appar-
ently stopped using that address.
When Mark Mumma noticed the Cruise.com e-mails that
inbox@webguy.net had received, he did not use the electronic opt-out
link to remove the address from the Cruise.com e-mail list, but
instead called John Lawless, Omega World Travel’s general counsel,
to complain. Mumma told Lawless that he had not asked to receive
4 OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC.
the "E-deal" messages. He told Lawless that he refused to use e-mail
opt-out mechanisms because "only idiots do that," and he believed
opt-out mechanisms just led to more unwanted messages. Mumma
told Lawless that his preferred removal procedure was to sue for vio-
lations of Oklahoma law. Lawless asked Mumma for his e-mail
address, but Mumma did not provide it. Instead, he asked Lawless to
remove from all future mailings every address containing a domain
name listed on Mummagraphics’ "OptOutByDomain.com" website.
Lawless said he was "gonna take them down right now," but Omega’s
technical support division indicated that removing all the addresses
would require considerable effort, and the addresses were not imme-
diately removed.
On January 20, 2005, the day after speaking with Lawless, Mumma
received another "E-deal" message at inbox@webguy.net. He sent a
letter dated January 25, 2005 to Daniel Bohan of Omega World
Travel, saying that he had received six unsolicited "E-deal" messages
from Cruise.com, Omega’s subsidiary, but again not specifying the e-
mail address at which he had received the messages. The letter
claimed that the messages violated federal and state laws and said that
Mumma intended to sue Bohan’s company for at least $150,000 in
statutory damages unless Bohan settled the matter for $6,250.
Mumma attached the Cruise.com e-mails to his letter, and after John
Lawless noticed that the messages appeared to have been sent to
inbox@webguy.net, he directed that the address be removed from the
Cruise.com mailing list. The company subsequently removed the
address.
After Omega World Travel failed to pay Mumma, postings on one
of Mumma’s "anti-spam" websites accused Omega, Cruise.com, and
Daniel and Gloria Bohan of being "spammers" who had violated state
and federal laws. The website posted a photo of the Bohans that had
evidently been copied from the Omega website and described the cou-
ple as "cruise.com spammers." On the basis of these postings, Omega
World Travel, the Bohans, and Cruise.com sued Mumma and Mum-
magraphics in federal court, claiming defamation, copyright infringe-
ment, trademark infringement, and unauthorized use of likeness. The
district court granted Mummagraphics summary judgment on all these
claims except the libel action, on which all the plaintiffs except Dan-
iel Bohan, who is no longer a party, expect to proceed to trial.
OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC. 5
Mummagraphics raised counterclaims against the appellees under
Oklahoma and federal law, which are the only claims now before this
court. Mummagraphics alleged, inter alia, that the Cruise.com e-mails
contained actionable inaccuracies and that the appellees failed to
comply with federal and state requirements that they stop sending
messages to recipients who opted out through specified procedures.
Both parties sought summary judgment on Mummagraphics’ counter-
claims, and the district court granted the appellees’ motion. The court
held that the CAN-SPAM Act preempted Mummagraphics’ claims
under Oklahoma’s statutes. It further held, inter alia, that the appel-
lees had not violated the CAN-SPAM Act because the alleged e-mail
inaccuracies were not material and the appellees had not violated the
opt-out provisions. Mummagraphics now appeals.
II.
A.
We turn first to the district court’s determination that the CAN-
SPAM Act preempted Mummagraphics’ claims under Oklahoma’s
statutes regulating commercial e-mail messages. The basic principles
of preemption are well settled, and we need not belabor them here.
Our inquiry into the scope of a preemption clause is shaped by "two
presumptions." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
First, under our federal system, we do not presume that Congress
intends to clear whatever field it enters. Instead, we start from "the
basic assumption that Congress did not intend to displace state law,"
Maryland v. Louisiana, 451 U.S. 725, 746 (1981), and "that the his-
toric police powers of the States were not to be superseded by the
Federal Act unless that was the clear and manifest purpose of Con-
gress," Medtronic, 518 U.S. at 485 (citations omitted). Second, from
this departure point, we address preemption issues in accordance with
the "oft-repeated comment . . . that ‘[t]he purpose of Congress is the
ultimate touchstone’ in every preemption case." Id. (alteration in orig-
inal) (citation omitted). Instead of imposing the narrowest possible
construction on preemptive language when read in isolation, we seek
"a fair understanding of congressional purpose," looking to "the lan-
guage of the pre-emption statute and the statutory framework sur-
rounding it," while also considering "the structure and purpose of the
6 OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC.
statute as a whole." Id. at 486 (emphasis, citations, and internal quota-
tions omitted).
B.
Mummagraphics argues that it is entitled to damages because such
damages are authorized by Oklahoma law and lie outside the CAN-
SPAM Act’s preemptive scope. The CAN-SPAM Act provides, in
part,
This chapter supersedes any statute, regulation, or rule of a
State or political subdivision of a State that expressly regu-
lates the use of electronic mail to send commercial mes-
sages, except to the extent that any such statute, regulation,
or rule prohibits falsity or deception in any portion of a
commercial electronic mail message or information attached
thereto.
15 U.S.C. § 7707(b)(1). The principal Oklahoma provision under
which Mummagraphics seeks damages provides:
It shall be unlawful for a person to initiate an electronic mail
message that the sender knows, or has reason to know:
1. Misrepresents any information in identifying the point
of origin or the transmission path of the electronic mail mes-
sage;
2. Does not contain information identifying the point of
origin or the transmission path of the electronic mail mes-
sage; or
3. Contains false, malicious, or misleading information
which purposely or negligently injures a person.
Okla. Stat. tit. 15, § 776.1A.1
1
Mummagraphics also alleged that the appellees violated an Oklahoma
provision requiring senders of unsolicited commercial e-mails to comply
OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC. 7
Oklahoma courts appear not to have construed the state provision,
but the language seems to reach beyond common law fraud or deceit.
By its terms, the statute is not limited to inaccuracies in transmission
information that were material, led to detrimental reliance by the
recipient, and were made by a sender who intended that the misstate-
ments be acted upon and either knew them to be inaccurate or was
reckless about their truth. Cf. Rogers v. Meiser, 68 P.3d 967, 977
(Okla. 2003) (requiring those elements for Oklahoma fraud action);
see also Restatement (Second) of Torts § 525, § 538 (1977).
The district court held that the Oklahoma statutes were preempted
insofar as they applied to immaterial misrepresentations, and that this
ruling disposed of Mummagraphics’ Oklahoma statutory claims.
Mummagraphics does not challenge the district court’s reading of
Oklahoma law or Mummagraphics’ complaint, but it argues that the
district court was incorrect to hold actions for immaterial error to be
preempted because the CAN-SPAM Act permits states to "prohibit[ ]
falsity or deception." See 15 U.S.C. § 7707(b)(1).
Whatever the precise scope of the Oklahoma provision might be,
we cannot agree that Mummagraphics’ action for immaterial errors
survives preemption. To begin with, the language in the exception to
the federal preemption provision upon which Mummagraphics relies
is hardly as straightforward as the company suggests. The exception,
as noted, allows states to prohibit "falsity or deception" in commercial
e-mail messages. Those terms are not defined in the statute. However,
"deception" requires more than bare error, and while "falsity" can be
with certain opt-out requests. See Okla. Stat. tit. 15, § 776.6E. We agree
with the district court that this provision was preempted because it bears
no arguable relationship to the subject matter excepted from preemption
in the CAN-SPAM Act. See 15 U.S.C. § 7701(b)(1). Finally, Mumma-
graphics alleged that the appellees violated the Oklahoma Consumer Pro-
tection Act, Okla. Stat. tit. 15, §§ 751 et seq., by violating Oklahoma’s
commercial e-mail laws. See id. § 776.1C. Since we find that Mumma-
graphics did not raise a cognizable cause of action under Oklahoma’s
commercial e-mail laws due to federal preemption, the alleged violations
cannot give rise to further claims under the Oklahoma Consumer Protec-
tion Act.
8 OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC.
defined as merely "the character or quality of not conforming to the
truth or facts," it also can convey an element of tortiousness or wrong-
fulness, as in "deceitfulness, untrustworthiness, faithlessness." Web-
ster’s Third New International Dictionary Unabridged 820 (1971);
see also Oxford English Dictionary Vol. V 697 (2d ed. 1989) (defin-
ing false as "erroneous, wrong," but also as "mendacious, deceitful,
treacherous," and "[p]urposely untrue"); see also Black’s Law Dictio-
nary 635 (8th ed. 2004) (defining "false" as "untrue" but also as "de-
ceitful; lying").
Since the word "falsity" considered in isolation does not unambigu-
ously establish the scope of the preemption clause, we read "falsity"
in light of the clause as a whole. Reading "falsity" as referring to tra-
ditionally tortious or wrongful conduct is the interpretation most com-
patible with the maxim of noscitur a sociis, that a word is generally
known by the company that it keeps. See, e.g., Jarecki v. G.D. Searle
& Co., 367 U.S. 303, 307 (1961); Neal v. Clark, 95 U.S. 704, 708-09
(1877). The canon applies in the context of disjunctive lists. See Neal,
95 U.S. at 706, 709; Jarecki, 367 U.S. at 304 n.1, 307. Here, the pre-
emption clause links "falsity" with "deception" — one of the several
tort actions based upon misrepresentations. Keeton et al., Prosser and
Keeton on the Law of Torts § 105, at 726-27 (5th ed. 1984) (defining
deceit as species of false-statement tort); Restatement (Second) of
Torts § 525 (describing elements of deceit). This pairing suggests that
Congress was operating in the vein of tort when it drafted the preemp-
tion clause’s exceptions, and intended falsity to refer to other torts
involving misrepresentations, rather than to sweep up errors that do
not sound in tort.
Other sections of the CAN-SPAM Act do not support a bare-error
reading of "falsity." In the portion of the Act that created a civil cause
of action, Congress affixed the title "[p]rohibition of false or mislead-
ing transmission information" to a section that prohibits only "header
information that is materially false or materially misleading." 15
U.S.C. § 7704(a)(1) (emphasis added). While "the heading of a sec-
tion cannot limit the plain meaning of the text," it can "shed light on
some ambiguous word or phrase." Bhd. of R.R. Trainmen v. Baltimore
& Ohio R.R. Co., 331 U.S. 519, 529 (1947); see also Almendarez-
Torres v. United States, 523 U.S. 224, 234 (1998). Moreover, the
"normal rule of statutory construction" provides that "identical words
OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC. 9
used in different parts of the same act are intended to have the same
meaning." Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (inter-
nal quotations omitted). Whether linked with materiality, see 15
U.S.C. § 7704(a)(1), or "deception," see id. § 7707(b)(1), we can find
nowhere in the statute that Congress meant to apply falsity in a mere
error sense.
There are good reasons for this. Congress did not intend "falsity"
to encompass bare error because such a reading would upset the Act’s
careful balance between preserving a potentially useful commercial
tool and preventing its abuse. The Act’s enacted findings make clear
that Congress saw commercial e-mail messages as presenting both
benefits and burdens. Congress found that "[t]he convenience and
efficiency of electronic mail are threatened by the extremely rapid
growth in the volume of unsolicited commercial electronic mail," id.
§ 7701(a)(2), but also that e-mail’s "low cost and global reach make
it extremely convenient and efficient, and offer unique opportunities
for the development and growth of frictionless commerce," id.
§ 7701(a)(1). Congress noted that states had sought to regulate com-
mercial e-mails, but it found that the resulting patchwork of liability
standards had proven ineffective:
Many States have enacted legislation intended to regulate or
reduce unsolicited commercial electronic mail, but these
statutes impose different standards and requirements. As a
result, they do not appear to have been successful in
addressing the problems associated with unsolicited com-
mercial electronic mail, in part because, since an electronic
mail address does not specify a geographic location, it can
be extremely difficult for law-abiding businesses to know
with which of these disparate statutes they are required to
comply.
Id. § 7701(a)(11).
Congress implemented these findings by creating a national stan-
dard that would be undermined to the point of near-irrelevancy by
Mummagraphics’ interpretation of the preemption clause. Rather than
banning all commercial e-mails or imposing strict liability for insig-
nificant inaccuracies, Congress targeted only e-mails containing
10 OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC.
something more than an isolated error. The CAN-SPAM Act made it
a crime to "materially falsif[y] header information in multiple com-
mercial electronic mail messages and intentionally initiate[ ] the
transmission of such messages," but it attached no criminal sanction
to non-material errors. 18 U.S.C. § 1037(a)(3). The Act created civil
causes of action relating to error, but attached requirements beyond
simple mistake to each of them. It permitted lawsuits based upon
"materially false or materially misleading" header information. 15
U.S.C. § 7704(a)(1) (emphasis added). The Act made it actionable for
a person to "initiate the transmission to a protected computer of a
commercial electronic mail message if such person has actual knowl-
edge, or knowledge fairly implied on the basis of objective circum-
stances, that a subject heading of the message would be likely to
mislead a recipient, acting reasonably under the circumstances, about
a material fact regarding the contents or subject matter of the message
. . . ." Id. § 7704(a)(2) (emphasis added). In sum, Congress’ enact-
ment governing commercial e-mails reflects a calculus that a national
strict liability standard for errors would impede "unique opportunities
for the development and growth of frictionless commerce," while
more narrowly tailored causes of action could effectively respond to
the obstacles to "convenience and efficiency" that unsolicited mes-
sages present. Id. § 7701(a).
Mummagraphics’ reading of the preemption clause would upend
this balance and turn an exception to a preemption provision into a
loophole so broad that it would virtually swallow the preemption
clause itself. While Congress evidently believed that it would be
undesirable to make all errors in commercial e-mails actionable,
Mummagraphics’ interpretation would allow states to bring about
something very close to that result.
The ensuing consequences would undermine Congress’ plain
intent. As we have noted, Congress found that because e-mail
addresses do not specify recipients’ physical locations, it can be diffi-
cult or impossible to identify where recipients live and hence to deter-
mine the state laws that apply. Id. § 7701(a)(11). Moreover,
commercial e-mails are a bulk medium used to target thousands of
recipients with a single mouse-click, meaning that the typical message
could well be covered by the laws of many jurisdictions. As a result,
law-abiding senders would likely have to assume that their messages
OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC. 11
were governed by the most stringent state laws in effect. The strict
liability standard imposed by a state such as Oklahoma would become
a de facto national standard, with all the burdens that imposed, even
though the CAN-SPAM Act indicates that Congress believed a less
demanding standard would best balance the competing interests at
stake. Because Mummagraphics’ reading of the "falsity or deception"
exception would thus permit an exception to preemption to swallow
the rule and undermine the regulatory balance that Congress estab-
lished, Mummagraphics’ reading of the exception is not compatible
with the structure of the CAN-SPAM Act as a whole.
C.
By giving the preemption provision its proper scope, we avoid the
need to resolve a difficult constitutional question concerning the com-
patibility of Oklahoma’s commercial e-mail provisions with the dor-
mant commerce clause. Congress’ power to regulate interstate
commerce implicitly prohibits states from passing any law that "dis-
criminates against or unduly burdens interstate commerce and thereby
‘imped[es] free private trade in the national marketplace.’" Gen.
Motors Corp. v. Tracy, 519 U.S. 278, 287 (1997) (alteration in origi-
nal). Whether a nondiscriminatory law unduly burdens interstate com-
merce turns upon whether it serves a "legitimate local purpose," and,
if so, "the nature of the local interest involved, and . . . whether it
could be promoted as well with a lesser impact on interstate activi-
ties." Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
This is not a simple case because important interests lie on both
sides of the Pike analysis. We have previously deemed it relevant that
one state’s Internet laws may impose compliance costs on businesses
throughout the country, because it is difficult for businesses to deter-
mine where Internet users are located. See PSINet, Inc. v. Chapman,
362 F.3d 227, 239-41 (4th Cir. 2004) (relying upon extraterritorial
implications in finding statute criminalizing Internet dissemination of
material harmful to minors violated dormant commerce clause).
Moreover, courts have long recognized that civil liability for false
statements can burden even innocent speech. See, e.g., New York
Times Co. v. Sullivan, 376 U.S. 254, 270-73 (1964). The deterrent
effect on commercial speech would be particularly great under a stat-
ute that authorizes enormous statutory damages — $25,000 for each
12 OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC.
day of violations. Okla. Stat. tit. 15, § 776.2C; Okla. Stat. tit. 15,
§ 776.7C. On the other hand, false and misleading content on the
Internet is a serious problem, see 15 U.S.C. § 7701(a), and even inno-
cent inaccuracies can impose costs that states may view as a proper
object of redress, State v. Heckel, 24 P.3d 404, 409-411 (Wash. 2001).
We avoid a difficult balancing analysis by giving Congress’ preemp-
tion clause its proper scope.2 See Jack L. Goldsmith & Alan O. Sykes,
The Internet and the Dormant Commerce Clause, 110 Yale L.J. 785,
818-23 (2001) (describing arguments).
III.
We turn next to Mummagraphics’ claims that the Cruise.com e-
mails violated the CAN-SPAM Act.3 Mummagraphics first argues
that the Cruise.com e-mails violated the Act’s requirements concern-
ing the accuracy of header information in commercial e-mails. The
Act provides, "It is unlawful for any person to initiate the transmis-
sion, to a protected computer, of a commercial electronic mail mes-
sage . . . that contains, or is accompanied by, header information that
is materially false or materially misleading." 15 U.S.C. § 7704(a)(1).
The Act further explains,
2
Giving the preemption clause its proper scope also allows us to avoid
deciding whether such a stringent liability statute exceeds even the
states’ wide latitude to regulate false or misleading commercial speech.
See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S.
557, 566 (1980) (stating that for commercial speech to be protected
under the First Amendment "it at least must . . . not be misleading"); Dun
& Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985)
(plurality) (allowing presumed and punitive damages for false and dam-
aging credit report that did not involve matters of public concern and
constituted speech "solely in the individual interest of the speaker and its
specific business audience").
3
We shall assume without deciding that Mummagraphics qualifies as
an Internet Access Service Provider entitled to bring a claim under the
CAN-SPAM Act. See 15 U.S.C. § 7706(g) (creating private right of
action for providers of Internet access service); 47 U.S.C. § 231(e)(4)
("The term ‘Internet access service’ means a service that enables users
to access content, information, electronic mail, or other services offered
over the Internet . . . .").
OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC. 13
the term "materially", when used with respect to false or
misleading header information, includes the alteration or
concealment of header information in a manner that would
impair the ability of an Internet access service processing
the message on behalf of a recipient, a person alleging a vio-
lation of this section, or a law enforcement agency to iden-
tify, locate, or respond to a person who initiated the
electronic mail message or to investigate the alleged viola-
tion, or the ability of a recipient of the message to respond
to a person who initiated the electronic message.
Id. § 7704(a)(6).4 Mummagraphics alleges that the senders of the
Cruise.com e-mails violated this provision because the messages’
header information incorrectly indicated that the e-mails originated
from the server "FL-Broadcast.net," and because the messages’
"from" address read cruisedeals@cruise.com, although that e-mail
address was apparently non-functional.
We agree with the district court that these inaccuracies do not make
the headers "materially false or materially misleading." Id.
§ 7704(a)(1). The e-mails at issue were chock full of methods to
"identify, locate, or respond to" the sender or to "investigate [an]
alleged violation" of the CAN-SPAM Act. Id. § 7704(a)(6). Each
message contained a link on which the recipient could click in order
to be removed from future mailings, in addition to a separate link to
Cruise.com’s website. Each message prominently displayed a toll-free
number to call, and each also listed a Florida mailing address and
local phone number for the company. Several places in each header
4
The statute also provides that particular actions not alleged in this
case render a message materially misleading. 15 U.S.C. § 7704(a)(1).
There is no evidence that any Cruise.com messages "include[d] an origi-
nating electronic mail address, domain name, or Internet Protocol
address the access to which for purposes of initiating the message was
obtained by means of false or fraudulent pretenses or representations
. . . ." Id. § 7704(a)(1)(A). Nor is there evidence that any Cruise.com
message "fail[ed] to identify accurately a protected computer used to ini-
tiate the message because the person initiating the message knowingly
use[d] another protected computer to relay or retransmit the message for
purposes of disguising its origin." Id. § 7704(a)(1)(C).
14 OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC.
referred to the Cruise.com domain name, including one line listing
Cruise.com as the sending organization.
These references come as little surprise, because the "E-deal" mes-
sages were sales pitches intended to induce recipients to contact
Cruise.com to book the cruises that the messages advertised. Since the
"E-deal" messages and their headers were replete with accurate identi-
fiers of the sender, the alleged inaccuracies in the headers could not
have impaired the efforts of any recipient, law enforcement organiza-
tion, or other party raising a CAN-SPAM claim to find the company.
If the alleged inaccuracies in a message containing so many valid
identifiers could be described as "materially false or materially mis-
leading," we find it hard to imagine an inaccuracy that would not
qualify as "materially false or materially misleading." Congress’
materiality requirement would be rendered all but meaningless by
such an interpretation.
We also reject Mummagraphics’ claim for alleged violations of the
CAN-SPAM Act’s e-mail removal provisions, because Mumma-
graphics cannot sustain such a claim without evidence that could
establish a "pattern or practice" of violations. The CAN-SPAM Act
requires that the commercial e-mails it covers include
a functioning return electronic mail address or other form of
Internet-based mechanism, clearly and conspicuously dis-
played, that . . . a recipient may use to submit, in a manner
specified in the message, a reply electronic mail message or
other form of Internet-based communication requesting not
to receive future commercial electronic mail messages from
that sender at the electronic mail address where the message
was received . . . .
Id. § 7704(a)(3)(A). Senders must honor requests for removal made
using these mechanisms within ten business days. Id. § 7704(a)(4)(A).
While the Act permits Internet access service providers to bring suit
under these provisions, they may do so only for "a pattern or practice"
that violates the requirements. Id. § 7706(g)(1). In this case, Mumma-
graphics merely alleged that the appellees failed to remove
inbox@webguy.net from the "E-deals" mailing list within ten days of
Mark Mumma’s call to Omega’s general counsel. It does not allege
OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC. 15
that the appellees failed to comply with any other removal request. As
a result, Mummagraphics has not alleged facts sufficient to survive
summary judgment on its opt-out claim. This holding makes it unnec-
essary to address the district court’s ruling that Mummagraphics’ evi-
dence did not point to even a single violation of the CAN-SPAM
Act’s opt-out provisions.
IV.
Lastly, Mummagraphics claims that Cruise.com’s e-mail messages
amounted to trespass to chattels under Oklahoma law.5 While the
CAN-SPAM Act does not preempt the application of state tort laws
that are not specific to e-mail messages, id. § 7707(b)(2)(A), the dis-
trict court correctly granted summary judgment on this claim because
Mummagraphics has not offered evidence that Cruise.com’s e-mails
caused the company more than nominal damages. Trespass to chattel
is a common law tort that "may be committed by intentionally (a) dis-
possessing another of the chattel, or (b) using or intermeddling with
a chattel in the possession of another." Woodis v. Okla. Gas & Elec.
Co., 704 P.2d 483, 485 (Okla. 1985) (quoting Restatement (Second)
of Torts § 217). However, trespass to chattel claims may be brought
against a trespasser only if
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality or
value, or
(c) the possessor is deprived of the use of the chattel for
a substantial time, or
(d) bodily harm is caused to the possessor, or harm is
caused to some person or thing in which the possessor has
a legally protected interest.
5
Mummagraphics cites the law of multiple jurisdictions on this subject
but does not contest the appellees’ assertion that any trespass to chattels
claim arises under the laws of Oklahoma, where Mummagraphics’ com-
puters are located.
16 OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC.
Restatement (Second) of Torts § 218. We proceed with particular cau-
tion in this area because Oklahoma courts appear never to have recog-
nized this tort based upon intangible invasions of computer resources.
In fact, the Woodis court described "intermeddling" with a chattel as
meaning "intentionally bringing about a physical contact with the
chattel." 704 P.2d at 485 (quoting Restatement (Second) of Torts
§ 217 cmt. e (1965)) (emphasis added).
Even if Oklahoma law were to make trespass against chattels avail-
able for computer intrusions, Mummagraphics’ claim cannot survive
summary judgment because the courts that recognize trespass to chat-
tels based upon computer intrusions do not allow "an action for nomi-
nal damages for harmless intermeddlings with the chattel." Intel Corp.
v. Hamidi, 71 P.3d 296, 302 (Cal. 2003) (quoting Restatement (Sec-
ond) of Torts § 218 cmt. e (1965)). Because Mummagraphics failed
to submit any evidence that the receipt of eleven commercial e-mail
messages placed a meaningful burden on the company’s computer
systems or even its other resources, summary judgment was appropri-
ate on this counterclaim.
V.
We respect the fact that unsolicited commercial e-mail has created
frustration and consternation among innumerable users of the Inter-
net. The proper treatment of mass commercial e-mail has provoked
controversy since perhaps the first such message was sent. See Adam
Hamel, Note, Will the CAN-SPAM Act of 2003 Finally Put a Lid on
Unsolicited E-Mail?, 39 New Eng. L. Rev. 961, 965 (2005) (dating
"spam" to 1994 advertisement sent to approximately 6000 Internet
discussion groups, provoking online outcry). Our role is not to deter-
mine the best way of regulating such messages, but merely to imple-
ment the balance that Congress struck. The CAN-SPAM Act prohibits
some material misstatements and imposes opt-out requirements, but
it does not make every error or opt-out request into grounds for a law-
suit. The e-mails in this case are not actionable under the Act. Nor can
the messages be actionable under Oklahoma’s statutes, because
allowing a state to attach liability to bare immaterial error in commer-
cial e-mails would be inconsistent with the federal Act’s preemption
text and structure, and, consequently, with a "fair understanding of
congressional purpose." Medtronic, 518 U.S. at 486 (emphasis omit-
OMEGA WORLD TRAVEL v. MUMMAGRAPHICS, INC. 17
ted). Since we agree that summary judgment was warranted on Mum-
magraphics’ various claims, the judgment of the district court is
AFFIRMED.