A California plaintiff brought a putative class action against
Hydra Group LLC claiming that it sent him and others unsolicited
commercial e-mail advertisements in violation of §
17529.5(a)(3) of the California Business & Professional Code.
(Each night as I say my prayers I pray for peace in the Middle East
and that all unsolicited emails and faxes will cease.)
Section 17529.5(a)(3) makes it unlawful for any person or entity
to send a commercial e-mail advertisement from California or to a
California e-mail address if the advertisement "has a subject
line that a person knows 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." The
plaintiff did not allege any injury to himself or any putative
class member arising from the transmissions and sought as relief
only liquidated damages as provided for in the statute.
Specifically, the plaintif alleged that Hydra Group sent him
three unsolicited advertisements by e-mail, with the subject lines
all contained the phrase "ATTN: Your Auto Insurance Renewal
Reminder," but the bodies contained only advertisements for an
auto insurance broker. The plaintiff alleged that his e-mail
address was one of at least one million to which Hydra Group
simultaneously sent each message.
(Author Commentary which has nothing to do with the decision:
So, to make this claim, the plaintiff had to allege that he and the
rest of the plaintiff class were reasonably mislead by junk email
that 99% of the population would delete in a second. Now, I am not
saying it is OK for companies to send out misleading email, but
Any who, the district court sua sponte dismissed the
action for lack of subject-matter jurisdiction holding that even
accepting the factual allegations in the complaint as true, the
amount in controversy did not exceed $5 million as required by
The plaintiff contended that class members would be entitled to
liquidated damages of $3 billion-$1000 for each of the 3 million
messages Hydra Group allegedly sent.
The district court, however, stated that §
7529.5(b)(1)(B)(ii) limits liquidated damages to $1 million per
"incident"; thus, even if Hydra Group executed the three
alleged transmissions in violation of the statute, the recipients
of the messages sent in those transmissions-whether one person or a
million-were entitled to no more than $3 million in liquidated
damages. While holding so, the district court disagreed with the
plaintiff's/attorney's argument that the plain language of
the statute limits to $1 million a particular plaintiff's
per-incident recovery, not a defendant's per-incident
liability, and concluded that such a strict reading was not a
reasonable construction of the liability-limiting provision.
But wait, maybe I should not give the plaintiff such a hard
time, he appealed, and the Second Circuit vacated the district
court's judgment and remanded the case for further
The Second Circuit noted that the district court had found that
the plaintiff's putative class action did not satisfy the
amount in controversy requirement of CAFA. CAFA, 28 U.S.C. §
1332(d)(2) requires a party seeking entrance to federal court to
demonstrate that the aggregate amount in controversy exceeds $5
million, exclusive of interest and costs. Assuming that the general
standards governing the amount of controversy requirement under 28
U.S.C. § 1332(a)(1) apply coextensively with those standards
governing CAFA, the Second Circuit observed that dismissal is
warranted on that basis only if it appears to a legal certainty
that the claim is really for less than the jurisdictional
Based on review of the plaintiff's complaint, the Second
Circuit held that it could not say with a "legal
certainty" that the amount in controversy in his class action
was less than $5 million. The Second Circuit maintained that where
the damages sought are uncertain, the doubt should be resolved in
favor of the plaintiff's pleadings.
So the plaintiff stayed alive. For the time being.
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A discussion on the jurisdictional limitations of forum-selection clauses, the inconsistencies with their enforceability, and the potential for the establishment of a standardized procedure to enable companies to evaluate forum-selection clauses with more certainty going forward.
Under what is commonly called the Sporck doctrine, the opinion work product doctrine can sometimes protect the identity of certain documents that do not themselves deserve intrinsic privilege or work product protection, as long as the adversary also has the documents and the identity could reflect a lawyer's opinion.
In Upjohn Co. v. United States, 449 U.S. 383 (1981), the court interpreted federal common law as extending privilege protection to communications between a company's lawyer and any level of employee, if that employee has facts the lawyer needs when advising the corporate client.