By: Linda L. Goodman
As I am sure many of you are aware, there exist many individuals known in the industry as “professional email litigators” whose businesses involve seeding datasets so that they (or their clients) will receive commercial email advertisements through third party publishers. They collect and categorize the commercial email into network and publisher holding files. When they have enough, they will insert claims against the advertiser in the email who will in turn look to the network for indemnification who will in turn look to the publisher for indemnification. Until now, these have been resolved relatively easily.
However, there are now class action attorneys involved in this area of litigation. A class action litigation is a form of lawsuit in which one or two people bring a lawsuit on behalf of a large group of unknown people. In email marketing, this means that one or two emails can result in million dollar verdicts. Every publisher and network should heed warning of the nature of these lawsuits and take immediate action on any suppression alerts identifying known litigant email records. This also underscores the importance for the development, implementation and routine reviews of compliance-focused processes surrounding data management and ad content/copy compliance. Retention of a reputable outside or corporate counsel knowledgeable of the industry can be invaluable and is recommended when developing or reviewing such processes.
If you operate or market within the acquisition email channel, chances are you will be exposed to a professional email litigator at some point in your career. The steps below include helpful tips in responding to such situations:
1. Do not ignore the claim or demand! Respond to the claim immediately even if it is only to say that you have received the complaint and are investigating the same.
2. If not included within the initial notification regarding the recipient’s intent to file a claim, request that native emails with full header and HTML/links intact are provided.
3. Immediately suppress the email records identified with the individuals and plaintiffs and send suppression alerts to your network of publishers and especially the publisher(s) responsible for the mail received by the plaintiffs. Ask for confirmation of suppression.
4. Review the content of the disputed emails received for accuracy. Secure sign-up details for the email records in question.
5. Discuss a possible settlement payment to resolve the claim, or proceed according to the recommendations of your counsel.
It is also strongly encouraged that publishers and advertisers involved with litigation or threat demands, seek to resolve all matters swiftly. Proactive compliance, ongoing monitoring, and resolution are critical components of long-term success. Industry compliance and advertiser and publisher safety are a top priority for all.
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This article is a publication of The Goodman Law Firm and is intended to provide information on recent legal developments. This article does not create an attorney-client relationship, nor should it be construed as legal advice or an opinion on specific situations. This may constitute “Attorney Advertising” under the Rules of Professional Conduct and under the law of other jurisdictions.
Linda L. Goodman is an attorney specializing in internet compliance and privacy law. With years of experience helping businesses navigate complex legal landscapes, Linda contributes expert insights on compliance issues in the digital space. To learn more about her services and insights, visit her law firm website at The Goodman Law Firm.
© 2013 TGLF, A.P.C.