Case Note: The Rosolowski Case and the Implications for the Future Application of CBPC Section 17529.5 to Commercial Email Advertisements

John Rosenthal

John Rosenthal is a senior associate at Harrington, Ocko & Monk, LLP His law practice includes disputes relating to intellectual property, business, cyber/internet law, and employment. Before joining the firm, he clerked for the Hon. Richard Enslen, US District Court. Prior to attending Notre Dame Law School, Mr. Rosenthal served as a Captain in the Marines.

Introduction

On October 29, 2014, the Second Appellate District issued a decision on the appeal of plaintiffs in the action, Greg Rosolowski v. Guthy-Renker LLC.¹ In its decision, the appellate court affirmed the ruling of the Superior Court, Los Angeles County, which dismissed in its entirety the amended class action complaint of plaintiffs regarding allegations of deceptive commercial email ads. In doing so, the Second Appellate District did not specifically follow the decision of the First Appellate District in Hypertouch² as to how courts should view whether a commercial email ad is materially deceptive. The Second Appellate District also distinguished the facts alleged in the Rosolowski amended complaint from the facts of the previously decided Balsam³ action as to whether information in the body of a commercial email ad precludes claims of deceptive "header" information. The appellate court’s decision in Rosolowski could have significant ramifications for senders, advertisers, and publishers of commercial email advertisements, and could impact the ability of plaintiffs to apply California Business and Professions Code section 17529.5 ("CBPC section 17529.5") to commercial email messages for the purpose of asserting multimillion dollar claims for liquidated damages under the statute.