United States v. 2008-12-19 | 07-56171 | KLEFFMAN V. VONAGE HOLDINGS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CRAIG E. KLEFFMAN, individually
and on behalf of all others
similarly situated, No. 07-56171
Plaintiff-Appellant, D.C. No.
v. CV-07-02406-GAF
Central District of  VONAGE HOLDINGS CORP, a New California,Jersey corporation, VONAGE Los AngelesAMERICA, INC., a wholly owned
subsidiary; VONAGE MARKETING,
INC., a wholly owned subsidiary,
Defendants-Appellees. 
 CRAIG E. KLEFFMAN, individually No. 07-56292
and on behalf of all others D.C. No.
similarly situated, CV-07-02406-GAF
Plaintiff-Appellee, Central District of
v. California,
Los Angeles  VONAGE HOLDINGS CORP, a New
Jersey corporation, VONAGE ORDER
AMERICA, INC., a wholly owned CERTIFYING
subsidiary; VONAGE MARKETING, QUESTION TO
INC., a wholly owned subsidiary, THE CALIFORNIA
Defendants-Appellants. SUPREME COURT

Filed December 19, 2008
16585

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Before: Melvin Brunetti and Barry G. Silverman,
Circuit Judges, and Suzanne B. Conlon,* District Judge.
ORDER
We certify to the California Supreme Court the question set
forth in Part III of this order.
All further proceedings in this case are stayed pending
receipt of the answer to the certified question. This case is
withdrawn from submission until further order of this court.
If the California Supreme Court accepts the certified question
for answer, the parties shall file a joint report six months after
date of acceptance and every six months thereafter advising
us of the status of the proceedings.
I
Pursuant to Rule 8.548 of the California Rules of Court, a
panel of the United States Court of Appeals for the Ninth Cir-
cuit, before which this appeal is pending, certifies to the Cali-
fornia Supreme Court a question of law concerning
interpretation of California’s anti-spam law, Cal. Bus. & Prof.
Code § 17529.5. The decisions of the California Courts of
Appeal and California Supreme Court provide no precedent to
the certified question, and the answer may be determinative
of this appeal.
The California Supreme Court is respectfully requested to
answer the certified question presented below. The phrasing
of the issue is not meant to restrict the court’s consideration
of the case. We agree to follow the answer provided by the
California Supreme Court. If the California Supreme Court
*The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
16586 KLEFFMAN v. VONAGE HOLDINGS CORP

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declines certification, the issue will be resolved according to
our perception of California law.
II
The caption of the case is:
 CRAIG E. KLEFFMAN, individually Nos. 07-56171,
and on behalf of all others 07-56292 (cons.)
similarly situated, D.C. No.
Plaintiff-Appellant-Appellee, CV-07-02406-GAF
v. Central District of
California,VONAGE HOLDINGS CORP, a New Los AngelesJersey corporation, et al.,
Defendants-Appellees-Appellants. 
Counsel for the parties are:
For Craig E. Kleffman: Elaine T. Byszewski, Hagens Ber-
man Sobol Shapiro LLP, 700 South Flower St., Suite 2940,
Los Angeles, CA 90017-4101; Steve W. Berman, Hagens
Berman Sobol Shapiro LLP, 1301 Fifth Ave., Suite 2900,
Seattle, WA 98101; and Reed Kathrein, Hagens Berman
Sobol Shapiro LLP, 715 Hearst Ave., Suite 202, Berkeley,
CA 94710.
For Vonage Holdings Corp., Vonage America, Inc., and
Vonage Marketing, Inc.: Elizabeth L. McDougall, Rebecca S.
Engrav, Perkins Coie, 1201 Third Ave., Suite 4800, Seattle,
WA 98101 3099; Judy Gitterman, Perkins Coie, 1620 26th
St., Sixth Floor, South Tower, Santa Monica, CA 90404.
If the California Supreme Court grants the request for certi-
fication, Kleffman should be deemed the petitioner in this
request because he appeals the district court’s rulings on the
issue identified below.
16587 KLEFFMAN v. VONAGE HOLDINGS CORP

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III
The question of law to be answered is:
Does sending unsolicited commercial e-mail advertise-
ments from multiple domain names for the purpose of bypass-
ing spam filters constitute falsified, misrepresented, or forged
header information under Cal. Bus. & Prof. Code
§ 17529.5(a)(2)?
IV
The statement of facts is as follows:
Craig E. Kleffman filed a putative class action complaint
against Vonage Holdings Corp., Vonage America, Inc., and
Vonage Marketing, Inc. (“Vonage”) for violating, inter alia,
California’s anti-spam law, Cal. Bus. & Prof. Code § 17529.5.
The anti-spam law prohibits unsolicited commercial e-mail
advertisements containing or accompanied by falsified, mis-
represented, or forged header information. Cal. Bus. & Prof.
Code § 17529.5(a)(2).
Kleffman alleged he received 11 unsolicited e-mail adver-
tisements for broadband telephone services from Vonage
through Vonage’s marketing agents. The body of each e-mail
contained an advertisement stating, “You Could Save up to
50% on Your Phone Bill!” The advertisements were marked
with Vonage’s copyright and were clearly identified as Von-
age mailings in the body of the e-mail.
Vonage sent the e-mails from 11 different domain names:
superhugeterm.com; formycompanysite.com; ursunrchc-
ntr.com; urgrtquirkz.com; countryfolkgospel.com; lowdirec-
tsme.com; yearnfrmore.com; openwrldkidz.com;
ourgossipfrom.com; specialvrguide.com; and struggletails-
site.com. Kleffman alleged that because of Vonage’s use of
“multiple random, not repeated, garbled and nonsensical
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domain names,” internet service providers were less likely to
identify and block Vonage’s unsolicited commercial e-mail
advertisements, and recipients were deceived into opening the
e-mails. Plaintiff-Appellant’s Opening Brief at 6. In Kleff-
man’s words, “Vonage essentially creates multiple deceptive
identities, as represented by the multiple deceptive domain
names,” to distribute the total volume of unsolicited commer-
cial e-mail advertisements and reduce the amount sent from
each domain name. This practice “tricks [internet service pro-
viders] into believing there are multiple sources, when in
actuality the [unsolicited commercial e-mail] advertisements
are all for Vonage’[s] broadband telephone services.” Id. at 6-
7. The district court dismissed the complaint, holding, inter
alia, Kleffman’s allegations failed to state a claim under the
plain language of § 17529.5.
V
The question presented in Section III is worthy of certifica-
tion because the issue is likely to emerge again in cases gov-
erned by § 17529.5, and the court’s answer may be dispositive
in this case. The relevant provision in § 17529.5 was effective
January 1, 2004, and has not been interpreted by the Califor-
nia Courts of Appeal or the California Supreme Court. The
position the California Supreme Court will take regarding the
certified question is uncertain. We therefore respectfully
request that the California Supreme Court accept certification
and resolve this question.
VI
The Clerk of Court is hereby directed to transmit to the
California Supreme Court the original and ten copies of this
order, along with all briefs on appeal to this court and any
record materials as requested. The Clerk shall also file certifi-
cates of service with the parties to this appeal. Cal. R. Ct.
8.548(c)-(d).
IT IS SO ORDERED.
16589 KLEFFMAN v. VONAGE HOLDINGS CORP

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