Aitken v. Communications Workers of America

• Decision Date: 12 July 2007
• Docket Number: No. 1:06cv1161.,1:06cv1161.
• Citation: 496 F.Supp.2d 653
• Parties: Kenneth AITKEN, et al., Plaintiffs, v. COMMUNICATIONS WORKERS OF AMERICA, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

496 F.Supp.2d 653

Kenneth AITKEN, et al., Plaintiffs, v. COMMUNICATIONS WORKERS OF AMERICA, et al., Defendants.

No. 1:06cv1161.

United States District Court, E.D. Virginia, Alexandria Division.

July 12, 2007.

COPYRIGHT MATERIAL OMITTED

Jon Linden Praed, Internet Law Group, Arlington, VA, for Plaintiffs.

William J. Hardy, Kleinfeld Kaplan & Becker, Washington, DC, for Defendants.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

This federal question action grows out of defendants' alleged misappropriation of the identities of certain plaintiffs — twelve managers at Verizon Business Network Services ("Verizon") — for the purpose of sending pro-union, anti-Verizon emails to Verizon employees under the managers' names. Defendants Harry Arnold and Pam Tronsor, acting as agents of defendant Communications Workers of America ("CWA"), allegedly created Yahoo email addresses using the names of nineteen Verizon managers, including twelve plaintiffs, and then used those email addresses to send unsolicited emails to numerous Verizon employees. These emails falsely appeared to originate from the Verizon managers and disparaged Verizon while touting the benefits of unionization with CWA. Based on these allegations, twelve of the nineteen aggrieved Verizon managers, joined by Verizon and MCI Communications Services, Inc., filed this action alleging the following seven claims: (i) violation of the CAN-SPAM Act, 15 U.S.C. § 7704, (ii) false endorsement, in violation of the Lanham Act, 15 U.S.C. § 1125, (iii) a state claim for misappropriation of the individual plaintiffs' names, (iv) a state claim for false light invasion of privacy,¹ (v) a state claim for defamation, (vi) a state claim for violation of Virginia's antispam statute, 18 Va.Code § 18.2-152.3:1, and (vii) a state claim for common law conspiracy. The CAN-SPAM Act claim is asserted only on behalf of plaintiff Verizon. The common law conspiracy claim and the Virginia Anti-Spam Act claim are asserted on behalf of all plaintiffs. The remaining claims are asserted only on behalf of the individual plaintiffs. All claims are asserted against all three defendants.

Plaintiffs seek injunctive relief, compensatory and punitive damages in an unspecified amount, and costs and fees. Defendant CWA moved to dismiss the two federal claims pursuant to Rule 12(b)(6), Fed.R.Civ.P., and further urged the Court to decline supplemental jurisdiction over the remaining state law claims. Defendants Arnold and Tronsor joined CWA's motion, and also moved to dismiss the claims against them pursuant to Rule 12(b)(2), Fed.R.Civ.P., for lack of personal jurisdiction.

These motions were fully briefed and argued orally, following which a bench ruling issued denying the motion to dismiss for lack of personal jurisdiction and the motion to dismiss the CAN SPAM Act claim for failure to state a claim. The remaining motions were taken under advisement. Since then, the parties have reported that a settlement of this case is impending, and thus this Memorandum Opinion records only the reasons for the bench ruling and does not reach the matters taken under advisement.

I.²

Plaintiffs in this case are Verizon Business Network Services, Inc. and MCI Communications Services,³ both Delaware corporations with their principal place of business in Virginia, and twelve individual Verizon managers: Kenneth Aitken, Ronald Beausoleil, Jeffrey Burk, Kathryn Caldwell, Brian Campbell, Michael Canavan, Craig Gilbert, Michael Halliday, Dwayne Lahmann, Cindy Liddy, Deborah Stegman, and Charles Vitelli. The individual plaintiffs reside in various states, namely Pennsylvania, New York, West Virginia and Ohio; none reside in Virginia.

Defendant CWA is an international labor union headquartered in Washington, DC and is alleged to conduct business regularly in Virginia. Defendant Arnold is an Organizer for CWA Local 13000 in Philadelphia. Defendant Tronsor is a CWA District Organizing Coordinator in Philadelphia. Both defendants reside in Pennsylvania.

The complaint alleges that Arnold and Tronsor set up free Yahoo email addresses in the names of the plaintiff Verizon managers, as well as seven other Verizon managers who are not plaintiffs in this action. Between September 20 and October 10, 2006, Arnold and Tronsor used these addresses to send a series of emails to hundreds of Verizon employees at their Verizon business email accounts. The emails, which were unauthorized and unsolicited, did not identify themselves as advertisements, but essentially urged the recipients to join CWA, noting that unionized Verizon employees have better job security, benefits, and pay than their non-unionized counterparts. By way of example, the body of the first email, sent September 20, is reproduced here (with some minor typeface, margin, and similar cosmetic changes):

FYI — Verizon Business Employee:

Now that MCI has been purchased by Verizon, the company is doing all it can to keep you and other former MCI employees from gaining Union benefits and wages that your co-workers at Verizon receive.

Unionized Verizon workers are members of CWA or IBEW and:

• earn a lot more money

• have a better health plan and pay less for it

• have an excellent defined benefits pension plan and 401(k) plan

• have excellent job security

CWA-represented Verizon workers have some of the strongest contract protection against forced transfers, lay-offs, and downgrades of any union members in the country. In 2002, Verizon laid off more than 3,400 workers in the Northeast — and then 7 months later, an arbitrator ruled that the contract had been violated and Verizon had to recall them all, with full back pay!

But former MCI employees can be laid off for any reason — with no recourse. Lay-offs have already begun around the country without regard to seniority, skill, past performance, or any other set criteria. For instance, Michelle Dash, a NYC dispatcher with five years of MCl/VZB experience was just let go without warning, while more recently hired employees remain on the payroll. Her work record was spotless — but she was told she was no longer needed and was offered no opportunity to move into another job.

It doesn't have to be this way for former MCI employees. CWA is committed to helping former MCI employees gain the respect and dignity you deserve. When we join together, we can win.

This may be the last time CWA will be able to email you at work, so it is extremely important that you contact us! Call us today at 1-800-[number]. * * * We will keep all of your information confidential. * * *

If you don't want to call just yet, please e-mail us at [defendant Arnold's work email address] with your personal e-mail so we have a way of communicating in the coming months. We will add your e-mail to our unity@verizon enewsletter so you can receive important updates and information, some of which the company won't want you to know.

We look forward to working with you and your co-workers to improve pay, benefits, and working conditions at Verizon Business.

United We Bargain, But Divided We Beg!

The emails were sent to Verizon employees at their respective email addresses "@verizonbusiness.com," the servers for which are located in Virginia, meaning that every email sent by defendants passed through Virginia servers. Moreover, although most of the recipients were residents of other states, some recipients were Virginia residents. It appears the emails contained no hyperlink or other automated method by which the recipients could "opt out" of receiving further emails, nor did they explicitly identify any other means whereby recipients might opt out of receiving further emails. It is also clear that the emails did not contain a valid physical postal address for any of the defendants, nor identify any of them as the real senders of the email. One email, however, contained defendant Arnold's email address as a means by which interested recipients might contact CWA, along with a toll-free number to contact the national CWA. Another email contained defendant Tronsor's phone number as a point of contact and identified her by name, but not as a sender or author of the email. The Yahoo addresses from which the emails were sent were valid return addresses, that is, the email recipients could send a reply email to those addresses, which would be delivered. Defendants contend some of the emails were blocked by Verizon's spam filter, and accordingly were not seen by the Verizon employees to whom they were directed. And finally, it is clear that the plaintiff Verizon managers did not authorize defendants to utilize their names for any purpose, including setting up email accounts or sending messages from such accounts.

After discovering the existence of the emails, Verizon filed this action, naming "John Doe" defendants and claiming a violation of the Computer Fraud and Abuse Act. See 18 U.S.C. § 1030(g) (private right of action). Early discovery disclosed the identities of the senders and recipients of the emails, allowing plaintiffs to file the amended complaint at issue here.

At issue in the motions decided from the Bench were the following questions:

(i) Does the Virginia long arm statute constitutionally reach defendants Arnold and Tronsor on the basis of their sending the emails at issue, given that the emails were sent to servers located in Virginia and were directed to some Virginia residents?

(ii) Does the CAN SPAM Act provide a remedy for a provider of internet access services where, as here, the defendants' false and misleading spam emails were sent to the provider's employees via the provider's servers as part of a labor organizing campaign?

II.

It is well settled that resolving a challenge to personal jurisdiction requires a two step inquiry: first, ascertaining whether the forum state's long-arm statute authorizes personal jurisdiction, and second, if so, determining whether the reach of the statute in those circumstances exceeds the...