Have you ever received an email tantalizing you with a discount offer that turned out to be too good to be true?
California resident Brittney Mejico has. So she’s suing.
In a case newly transferred to a federal court, and another filed earlier in a California state court, Mejico is holding both Kohl’s and Target responsible for emails she received, promoting coupons and sales that she says didn’t actually exist.
In one instance, she identifies the online coupon code site CouponCabin as the sender of an email with the subject line “$10 off at Kohl’s.” She “promptly clicked on the link and there was no such freestanding discount that did not require a significant purchase,” her lawsuit reads. “The promise of a discount was thus literally false and entirely illusory.”
In another instance, Mejico said she received an email promising “40% off at Target,” but there were restrictions that were not disclosed until after the recipient clicked on the link in the email.
“A reasonable consumer, acting under ordinary circumstances, would likely be deceived” by what she calls “deceptive spam,” searching for deals “that did not exist.”
While Mejico states she never gave consent to receive emails from Kohl’s, Target or CouponCabin, that’s not what her lawsuit is about. Many plaintiffs have sued marketers who text them with messages and offers for which they say they never opted in. Emails are different, though – under the federal CAN-SPAM Act, only state and federal regulators can go after offenders.
But Mejico’s lawsuits exploit a wrinkle in California’s Anti-Spam Law. Even though Kohl’s and Target didn’t send the emails directly, she argues that the state’s law “extends liability to the companies whose products are promoted via spam, which forces those companies to actively supervise the affiliates that promote their products.” California courts, she says, “have made clear that advertisers cannot escape liability by outsourcing email marketing to affiliates.”
The Washington-based law firm Crowell & Moring recently warned businesses of “a new wave of California Anti-Spam class actions” that “raises significant risks for email marketers.” Claims like Mejico’s are becoming more commonplace, they explained. “Any company that sends commercial emails to California residents is potentially at risk,” they warned. “Plaintiffs’ strict liability theory, if accepted by courts, could dramatically expand liability for companies.”
Under California’s law, Mejico argues that she and any other California resident who received the emails in question are owed damages of $1,000 apiece, per email. After all, she points out, she “spent valuable time and attention identifying, reading, and deleting the deceptive email; incurred opportunity costs and lost productivity; and suffered depletion of device and network resources, including storage space, bandwidth usage on a metered data plan, and battery life.” She also says the misleading emails invaded her privacy “and disrupted the ordinary use and enjoyment” of her email account.
While CouponCabin is not named as a defendant, Mejico says the coupon site is “liable as the sender and publisher of the spam e-mail.” What her litigation does not appear to establish, is whether Kohl’s or Target themselves authorized the email campaigns at all, or whether the sender was simply using the retailers’ names to entice recipients to open the email.
“Companies should immediately review their email marketing practices,” Crowell & Moring advises. Otherwise, they risk “multimillion-dollar exposure in class actions.”
Mejico may not have gotten her $10 off at Kohl’s or 40% off at Target. But if she prevails in court – $1,000 for each email wouldn’t be a bad consolation prize.
