Massachusetts Residents Can Sue Online Merchants for Spam

Last week, I saw an interesting article on the /r/legaladvice subreddit. An e-commerce business owner was complaining that a customer was suing because the merchant had been sending the customer promotional emails for years that the customer never agreed to. The author deleted the post a few days later, but I found a copy of the text.

The merchant was indignant and felt like it was a shakedown, but I was 100% on the customer’s side. The merchant is in the wrong for spamming their customers with promotional emails they never requested, and so the merchant should suffer financial repercussions.

Promotional emails privatize profits and socialize costs 🔗︎

Promotional emails are a perfect example of businesses privatizing profits while socializing costs.

Suppose I buy a shirt from Bonobos. For me, that’s the last I want to hear from Bonobos until I decide to buy something else. But Bonobos will undoubtedly add me to their newsletter to encourage me to buy more from them. A new trend I’m noticing is merchants sharing my email with some review collection service that begs me to leave a positive review of the product to encourage other customers to buy.

Every promotional email a customer receives from Bonobos or any other merchant distracts them for 10-30 seconds. If Bonobos sends out 10 million emails per year, it wastes an aggregate of 3 years of consumer time.

But Bonobos doesn’t care because Bonobos doesn’t bear any of those costs. Bonobos pays a few hundred dollars to send those 10 million emails. In return, they probably get $100k or more in additional revenue because 0.1% of those emails successfully convinced people to purchase more products from Bonobos.

All the gains go to Bonobos, and almost all the costs go to the consumers who don’t want to waste their time with Bonobos’ promotional emails.

Who’s suing people for spam? 🔗︎

So, back to that reddit post. I wanted to know more about the case to see if I could start suing businesses who abused my email address.

I couldn’t find anyone that matched the details from the reddit post, but I did discover Dan Balsam of DanHatesSpam. He was actively suing businesses for spam from around 2002 to 2013, but I couldn’t find much from him since then.

Dan Balsam didn’t sound like the same guy as the redddit post, but his story helped me understand how someone could successfully sue for spam emails.

Dan was able to sue businesses because he’s a resident of California, which has the strongest consumer privacy laws in the US. In California, you can sue spammers for $1,000 per email:

A person or entity bringing an action pursuant to subparagraph (A) may recover either or both of the following:

(i) Actual damages.

(ii) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of this section, up to one million dollars ($1,000,000) per incident.

California Code, Business and Professions Code - BPC § 17529.5

Does Massachusetts have a similar anti-spam law to California’s? 🔗︎

I hoped that my home state of Massachusetts might have a law like California’s so I could exercise my rights with spammers like Dan does.

It turns out that Massachusetts does have a law protecting consumers from spam, though it actually predates e-commerce.

The Massachusetts law is the Consumer Privacy in Commercial Transactions Act (or CPICTA). In commercial transactions, it forbids the merchant from collecting more personal information than necessary to complete a credit card transaction:

No person, firm, partnership, corporation or other business entity that accepts a credit card for a business transaction shall write, cause to be written or require that a credit card holder write personal identification information, not required by the credit card issuer, on the credit card transaction form. Personal identification information shall include, but shall not be limited to, a credit card holder’s address or telephone number.

• Massachusetts General Law Chapter 93 § 105(a).

In 2011, Massachusetts resident Melissa Tyler filed a class-action lawsuit against Michaels (the crafts store) for collecting customer zip codes unnecessarily and using the information to send her marketing materials.

In 2015, Michaels agreed to pay class members $10 or $25 each in Michael’s coupons and $425k cash for in attorney’s fees. The $25 amount seems to come from here:

…if the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section two…

-Massachusetts General Law Chapter 93a § 9(3)

Ongoing court cases 🔗︎

I happened to look into this at a lucky time because the law firm Bursor & Fisher, P.A. recently filed class-action suits against three online merchants for abusing customer emails to send marketing emails, in violation of the Massachusetts privacy law:

• Magnuson v. GameStop Corp., Mass. Super. Ct., No. 2484-CV-02058
• DeFelippis v. Bloomingdale’s Inc., Mass. Super. Ct., No. 2484-CV-02059
• Carr v. BG Retail, LLC, Mass. Super. Ct., No. 2484-CV-02060

What does this mean for me? 🔗︎

Based on these cases, it seems like there’s precedent for Massachusetts residents to assert their rights against merchants who abuse their privacy.

Here’s my plan:

1. Record the checkout process when I buy something from an online merchant to capture the fact that I’m not opting in to promotional emails.
2. If I receive a promotional email, solicitation of a review, or any kind of email other than what’s strictly required to complete my purchase, I’ll send the business a 30-day demand letter telling them to send me a penalty of $25 and that subsequent emails after they receive my letter will be triple because at that point it will be willful violation of the law.
3. If they don’t respond or say they don’t owe me money, take them to small claims court and cite Massachusetts General Law Chapter 93 § 105(a).

I’ve never taken a business to small claims court, so part of it will just be interesting to see how the process works. I’ll post updates here as I proceed.