How To Do Audience Research That Helps Focus Your Content Marketing

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It’s Sunday afternoon. You’ve popped around to see your gran, and she’s asking after your health. “Well, Gran,” you answer, “this weekend I got totally wasted and fell asleep in a trash can.” An unlikely response? I’m guessing it is for most people….

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July 15th 2014 Marketing

Removing The Fog From The Marketing Cloud

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Consider this: just 20 years ago, a retailer having a website was a huge novelty. Back then, the main purpose was to connect customers to service reps or find a store, and it took years before you could effectively showcase and optimize products like you can today with a marketing cloud. Websites…

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Lawyer’s Suit Over “Professional Recognition” Spam Flops

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shutterstock_148273682-Say you’re a lawyer and you receive a promotional email intimating that you’re one of the “Top Lawyers in California.” You probably just delete it and move on, right? That would be too easy. Nicholas Bontrager sued Showmark alleging that he believed he received an accolade from a “respected legal association or organization.” The email purported to charge a $159 fee for a plaque memorializing the award. Bontrager never paid the fee because, upon inquiring, he did not receive a response from Showmark, but he did end up wasting his time, bandwidth, and email storage space. He did the logical thing that lawyers do when email wastes their time: he sued Showmark for violating California’s spam statute.

Bontrager alleged that Showmark’s email contained a misleading subject line. Ordinarily, the court says this presents a question of fact, but the court says that the subject line in this case is not misleading. The court contrasts this email with other emails where courts have found subject lines potentially misleading because they insinuated a personal relationship (Tagged; Reunion) or where the subject line leads the recipient to believe that she will get something for free (Member Source; ValueClick).  This is not the case here:

The phrase “Lawyer Media, Top Lawyers in California” indicates that the body of the email will concern top lawyers in California. This is in fact the subject addressed in the body of the email. Although the information contained in the body of the email may have been misleading because it suggested that Bontrager had received a fictitious award, the fictitious award was an award for top lawyers in California. This is exactly the topic identified the subject line. For that reason, no reasonable trial [sic] of fact could conclude that the subject line of the email was misleading.


Nothing in the subject line of the email Showmark sent indicated that Bontrager would receive a “Top Lawyer” plaque if he took certain action (e.g., opening the email), while the body of the email required him to take different action to receive it (e.g., paying a fee). Nor did the subject line indicate that the email was from a personal acquaintance, or even from the organization making the fictitious award, rather than a company that manufactures plaques. For these reasons, no reasonable trier of fact could find that the subject line of the email was likely to deceive a reasonable consumer. Bontrager’s § 17529.5(a)(3) claim must therefore be dismissed.

Bontrager’s claims under the false advertising statute and unfair competition laws also fail. He did not pay any money to Showmark, or for that matter to any third party, as a result of the emails. He now knows the true nature of the email, so he’s not entitled to injunctive relief against future misleading emails of this nature. He also fails to allege damages sufficient to confer standing. He failed to allege how his loss of time, bandwidth, and email storage translated into economic losses (e.g., he did not plead that he paid for email storage at work).

Finally, Bontrager alleged negligent misrepresentation, but his allegations on damages fall short on this claim as well. He has to allege that he suffered damages as a result of the misrepresentations. He did not purchase the plaque—in fact, he investigated the award and “determined not only that he had not [won an award], but also that there was no organization that made such awards.” Thus, even if he had purchased a plaque, the purchase would not have been caused by Showmark’s misrepresentations.

Bontrager gets a chance to amend some of the claims, but he’s unlikely to do so for obvious reasons.


Ouch. Lawyer-plaintiffs and their often poorly-faring lawsuits are a perennial favorite on the blog. To his credit, Bontrager did not represent himself. [Eric's comment: Bontrager's thrashing in court does suggest that “Lawyer Media, Top Lawyers in California” was, in fact, a dubious claim based on this lawsuit's result. Even if another lawyer represents him/her, a lawyer-in-the-role-of-plaintiff should have known better. I think Venkat and I should send a "Thank You For Demonstrating Your Legal Acumen To Prospective Clients" plaque to future lawyers who get drubbed in court when they become plaintiffs.]

CAN-SPAM litigation has diminished significantly, but as this lawsuit shows, plaintiffs still sue under California’s spam statute. Courts grappled with preemption, but unfortunately they have drawn a murky line at best. When coupled with decisions under California’s spam statute that give an expansive reading of that law, plaintiffs have wiggle room to sue under California’s spam statute.

That said, this is a nice data point for litigation over email subject lines. There’s nothing materially misleading about the subject line in this case, and the court nicely groups the cases where courts have found for the plaintiffs. I suppose the court could have said that, because there’s no award and the recognition is fake, this causes the subject line to be misleading, but the court takes an approach that looks for material accuracy. (It’s similar in this vein to cases such as Mummagraphics that decline to find causes of action based on technical inaccuracies with other aspects of a commercial email.) The court says that the subject line says nothing about the legitimacy of the award. It merely says that the email is about the topic of lawyer recognition…which it, in fact, is. Perhaps the court wasn’t touched by the usual sympathy for a plaintiff because this case involved a lawyer?

Bontrager also argued that the subject line was misleading because it failed to indicate the email was a solicitation, but the court said there’s no such requirement in the statute.

Case citation: Bontrager v. Showmark Media LLC, No. 14-01144 MMM (Ex) (C.D. Cal. June 20, 2014) (h/t Kronenberger Rosenfeld)

Related posts:

Advertiser May Have Claims Against SEO Firm Using Undisclosed Spammy Practices

Court Accepts Narrow View of CAN-SPAM Preemption but Ultimately Dismisses Claims – Davison Design v. Riley

Spam Arrest’s Sender Agreement Fails Because Email Marketer’s Employees Lacked Authority–Spam Arrest v. Replacements (Forbes Cross-Post)

Another Spam Litigation Factory Unravels –- Beyond Systems v. Kraft

Independent Contractor Relationship Between Sender and Advertiser Dooms Spam Claims – Kramer v. NCS

CAN-SPAM Violations For Private WHOIS Information and Putting Disclosures in Remotely Served Images – ZooBuh v. Better Broadcasting

Crazy SOPA-Like Attempt to Hold International Banks Liable for Pharmacy Spam Fails on Jurisdiction Grounds–Unspam v. Chernuk

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Court Refuses to Dismiss Claims Against Alleged Twitter-Bot Spammer–Twitter v. Skootle

Is SOPA’s “Follow the Money” Meme Infecting Anti-Spam Litigation? – Project Honey Pot v. Does

Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation

California Appeals Court Says Emails That Don’t Identify Sender Violate State Spam Statute – Balsam v. Trancos

Old School Spam Plaintiff Rebuffed in the Ninth Circuit

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

Court Dismisses Lawsuit Under Michigan Spam Statute Based on Preemption and Lack of Standing — Hafke v. Rossdale Group, LLC

Spam Claims Covered by Contract’s Indemnity Clause–Commonwealth Marketing Group v. IMG Assocs.

In Facebook’s Lawsuit Against Alleged Spammer, Court Denies MaxBounty’s Motion to Dismiss

Seventh Circuit Awards e360 a Whopping $3 in Damages Against Spamhaus — e360 v. Spamhaus

Court Rejects First Amendment Challenge to CAN-SPAM Indictment — US v. Smallwood

Jury Rejects Lawyer’s Claims Under DC’s Anti-Spam Law — CyberLaw v.

July 13th 2014 Marketing, spam

Twitter Revamps Analytics To Show Impressions & Engagement On Organic Tweets

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Twitter gave its analytics dashboard a major upgrade today, offering advertisers a deeper look at how well their organic tweets are performing. Users with access to the dashboard — advertisers, Twitter Card publishers and verified users — are now able to see how many times each of their…

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Pinterest Updates Follow Button To Preview Brands’ Latest Pins

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Pinterest rolled out a new Follow button today that gives users a visual sample of what following a brand or business will mean. Users who click on the button will see a dialogue box with previews of an account’s latest pins, “and your visitors won’t ever have to leave your website to…

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July 9th 2014 Marketing, Social Media

The Weekly Compete Pulse

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This Fourth of July weekend brings you some of our favorite articles from the web, on topics like social analytics and rising digital trends. You’ll certainly learn a lot from these pieces, so read on and find out more!

Understand Google Analytics Metrics for Social Analytics

With great content comes great responsibility… to maintain corresponding social accounts, at least!  But how do you keep track of your progress, or the impact your social media presence has on your content? Through analytics, of course – and Google Analytics has metrics to help you sort out your social media. Read this article from Business 2 Community to see how metrics from Google Analytics can give you better insights into your social performance.

Digital Transformation and the High Performance Enterprise

Change is inevitable, and change will be primarily digital. So how might large organizations see these effects? ZDNet looks at a variety of research conducted by MIT, Accenture, Oxford Economics, and PwC to track different aspects of this transformation. The informative charts and explanations help you see how the digital transformation trend can potentially yield real business benefits – so learn more here.

3 Social Media Rules Most Entrepreneurs Don’t Follow

Social media, perhaps the most direct and rapid touchpoint between you and your customer, is becoming increasingly delicate for that reason. There are important things you must do besides publishing brand content – you have to manage your engagement well (or risk social media blunders)! These three tips from Entrepreneur Magazine explore a variety of ways to refine your touch with your audience and to satisfy social-media-savvy clientele. Read more at their website!

10 Brands that Brilliantly Differentiated Themselves from the Competition

A company’s brand is (almost) everything. A strong brand should be the core of a company’s identity – but following up with digital superiority is paramount. Hubspot outlines 10 different brands from a wide variety of industries to show you examples of companies that totally nail their brand + digital strategy, so head on over to take a look at those who are getting digital right! Here’s a hint: a lot of bonus points go to websites with clean and effective UX.

Testing Is At The Heart Of Marketing Success

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Marketing for any business is an ongoing effort that requires consistent refinement and improvement to see positive results in the long-term. It is not enough to simply create a quality marketing program and leave it alone to do its job. Rather, the marketing plan for any business needs to be…

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Facebook Reports Month-Long “Discrepancy” In Reach & Engagement On Pages

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If any Facebook Page administrators were wondering about iffy reach and engagement metrics for posts recently, Facebook quietly provided an explanation today. As reported first by the Inside Facebook blog, Page managers who access the Insights dashboard are seeing this message: There is a…

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July 4th 2014 Facebook, Marketing, Social Media

Facebook Wants To Know If Posts In Your News Feed “Feel” Like Ads

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Facebook has set a very high bar for advertising on its network, pushing for ads that “delight” users as much as posts from your friends and family. Hitting that mark — or at least approaching it — is important for Facebook as it works to balance revenue generation with the…

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July 4th 2014 Facebook, Marketing

This Agency Was Tackling Search Before Google Even Existed

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Who Michael Bruh (l.), president, COO; Selina Eizik, U.S. CEO; Anton Konikoff, founder, global CEO
What Paid search and SEO agency
Where New York, London and Singapore

Talk about old school. Launched in 1995—three years before Google even existed—Acronym tackled search engine marketing. Today, the New York-based shop focuses primarily on search engine optimization and paid search. That said, Acronym, which competes with iCrossing and iProspect, is just as happy helping marketers optimize their in-house search function; more than half its business stems from such consulting services, according to U.S. CEO Selina Eizik. “Our angle is if we can make you a superstar at your company, we’re successful,” she said. Top accounts include SAP, Accenture, Humana and Four Seasons Hotels and Resorts. The agency, with about 105 staffers, also has offices in London and Singapore, and generates an estimated $40 million-$50 million in revenue annually.