Balsam Amicus in Dewitt Footlocker

8/9/2019 Balsam Amicus in Dewitt Footlocker

1/39

No. A141847

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

TIMOTHY A. DeWITT,

Plaintiff and Appellant,

v.

FOOT LOCKER RETAIL INC. and 1INK.com,

Defendants and Respondents.

[PROPOSED] AMICUS CURIAE BRIEF OF JAY FINK

IN SUPPORT OF AND AGAINST ALL PARTIES

Appeal from Judgment Following Order Sustaining Demurrers in theSuperior Court of the State of California,

County of San Francisco, No. CGC-13-532370

Hon. Ernest Goldsmith, Law & Motion Judge

DANIEL L. BALSAM (State Bar No. 260423)

THE LAW OFFICES OF DANIEL BALSAM

2601C Blanding Avenue #271

Alameda, CA 94501

Phone: (415) 869-2873

Fax: (415) 869-2873


2/39

i

[PROPOSED]AMICUS CURIAE BRIEF

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Pursuant to California Rule of Court 8.208, I know of no entity or

person other than the Parties themselves that has a financial or other

interest in the outcome of the proceeding that the Justices should consider

in determining whether to disqualify themselves.

Dated: January 26, 2015 /s/ Daniel L. Balsam

Daniel L. Balsam

Attorneys for Amicus Curiae JayFink


3/39

ii


TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED PERSONS .......................................i

TABLE OF CONTENTS............................................................................ii

TABLE OF AUTHORITIES.....................................................................iii

I. Introduction ........................................................................................1

II. The Emails Comply With Section 17529.5........................................ 2

A. The From Name Foot Locker VIP Does NotViolate Section 17529.5................................................................3

B. A Sending Email Address That Includes

e.footlocker.comDoes Not Violate Section

17529.5 .........................................................................................4

C. The Subject Line Keep It Clean, Keep It

Classy with Fresh White Sneakers! Does Not

Violate Section 17529.5................................................................6

III. Truthful Statements In The Body Of An Email Do

Not Cure Falsified Or Misrepresented Information

In The Headers ...................................................................................8

IV. Claims Under Section 17529.5 Have Nothing To

Do With Fraud....................................................................................9

A. Plaintiffs Suing Under Section 17529.5 Need

Not Plead at a Fraud-Level of Particularity..................................9

B. The Exception to Federal Preemption is Not

Based on Fraud ...........................................................................10

V. Conclusion........................................................................................17

CERTIFICATE OF WORD COUNT .....................................................18

DECLARATION OF DANIEL L. BALSAM.........................................19


4/39

iii


TABLE OF AUTHORITIES

Page

California Cases

Balsam v. Trancos Inc. et al,No. 471797 (Super. Ct. Cal. Cty. of San Mateo Mar.

10, 2010) (judgment and final statement of decision).................... 3, 8

Balsam v. Trancos Inc. et al,

203 Cal. App. 4th 1083 (1st Dist. 2012),petition for

review denied, 2012 Cal. LEXIS 4979 (Cal. May 23,

2012),petition for certiori denied, 2012 U.S. LEXIS

8423 (U.S. Oct. 29, 2012),petition for rehearing

denied, 2013 U.S. LEXIS 243 (U.S. Jan. 7, 2013)....................passim

Day v. AT&T Corporation,

63 Cal. App. 4th 325 (1st Dist. 1998) ..............................................13Elliott v. Albright,

209 Cal. App. 3d 1028 (6th Dist. 1989).......................................8, 10

Farm Raised Salmon Cases,

42 Cal. 4th 1077 (2008)....................................................................14

Ford Dealers Assoc. v. Dept. of Motor Vehicles,

32 Cal. 3d 347 (1982).......................................................................13

Hypertouch Inc v. ValueClick Inc. et al,

192 Cal. App. 4th 805 (2d Dist. 2011).......................................10, 11

Jevne v. Superior Court,

35 Cal. 4th 935 (2005)......................................................................14Kleffman v. Vonage Holdings Corp.,

49 Cal. 4th 334 (2010)................................................................3, 7, 8

People v. Gilbert,

1 Cal. 3d 475 (1969)...........................................................................9

Rosolowksi v. Guthy-Renker LLC,

230 Cal. App. 4th 1403 (2d Dist. 2014)...................................8, 9, 10

Federal Cases

Altria Group Inc. v. Good,

555 U.S. 70, 129 S. Ct. 538 (2008) ..................................................14

Asis Internet Services v. ConsumerBargainGive aways LLC,

622 F. Supp. 2d 935 (N.D. Cal. 2009) (order re Rule

12 motion) ........................................................................................16


5/39

iv


TABLE OF AUTHORITIES (cont.)

Page

Federal Cases (cont.)

Asis Internet Services v. Member Source Media LLC,No. C-08-1321 EMC, 2010 U.S. Dist. LEXIS 47865

(N.D. Cal. Apr. 20, 2010)................................................................. 16

Asis Internet Services v. SubscriberBase Inc.,

No. 09-3503 SC, 2009 U.S. Dist. LEXIS 112852 (N.D.

Cal. Dec. 4, 2009) (order granting defendants motion

to dismiss)......................................................................................... 16

Asis Internet Services v. SubscriberBase Inc.,

No. 09-3503 SC, 2010 U.S. Dist. LEXIS 33645 (N.D.

Cal. Apr. 1, 2010) (order denying defendants motion

to dismiss)................................................................................... 15, 16Asis Internet Services v. VistaPrint USA Inc.,

617 F. Supp. 2d 989 (N.D. Cal. 2009) (order re motion

to dismiss)......................................................................................... 16

Beyond Systems v. Keynetics Inc.,

No. PJM 04-686 (D. Md. Mar. 26, 2007) (order

denying defendants motion for other relief under

FRCP 7 and second renewed motion to dismiss for

lack of personal jurisdiction)......................................................14, 15

Davison Design & Development Inc. v. Riley,

No. 4:11-cv-02970 (PJH), 2012 U.S. Dist. LEXIS131087 (N.D. Cal. Sept. 13, 2012) (order denying

motion to strike and granting motion to dismiss)............................. 17

Davison Design & Development Inc. v. Riley,

No. 4:11-cv-02970 (PJH) (N.D. Cal. Nov. 8, 2013)

(order re motion for summary judgment).........................................17

Gordon v. Virtumundo Inc.,

575 F.3d 1040 (9th Cir. 2009)..........................................................15

Hoang v. Reunion.com Inc.,

No. C-08-3518 MMC, 2008 U.S. Dist. LEXIS 85187

(N.D. Cal. Oct. 3, 2008) ................................................................... 16


6/39

v



Page

Federal Cases (cont.)

Hoang v. Reunion.com Inc.,No. C-08-3518 MMC, 2010 U.S. Dist. LEXIS 34466

(N.D. Cal. Mar. 31, 2010) (order . . . denying

defendants motion to dismiss first amended

complaint)...................................................................................13, 16

Moreland v. AD Optimizers LLC,

No. 5:13-cv-00216-PSG, 2013 U.S. Dist. LEXIS

102366 (N.D. Cal. July 18, 2013) (order granting-in-

part defendants motion to dismiss) .................................................10

Omega World Travel Inc. v. Mummagraphics,

469 F.3d 348 (4th Cir. 2006)............................................................14Smith v. Anastasia International Inc.,

No. 3:14-cv-1685-H-MDD (S.D. Cal. Sep. 15, 2014)

(order denying . . . motion to dismiss) .............................................17

Sprietsma v. Mercury Marine,

537 U.S. 51 (2002) ...........................................................................12

Wagner v. Spire Vision et al,

No. 3:13-cv-04952-WHA, 2014 U.S. Dist. LEXIS

26902 (N.D. Cal. Mar. 3, 2014) (order granting

plaintiffs motion for partial summary judgment) .....................16, 17

California Statutes

Bus. & Prof. Code 17500 .........................................................................13

Bus. & Prof. Code 17529, 17529.5 .................................................passim

Federal Statutes and Senate Report

15 U.S.C. 7701 et seq. (CAN-SPAM Act)........................................passim

Senate Report No. 108-102 (1st Sess. 2003).........................................12, 16

Other Authorities

Internet Message Format, NETWORK WORKING GROUP,

https://tools.ietf.org/html/rfc5322 ......................................................7

What is a subdomain?, GODADDY, https://support.godaddy.

com/help/article/296/what-is-a-subdomain........................................5


7/39

vi



Page

Other Authorities (cont.)

What is a Subdomain Name? How Do I Create and DeleteOne?, HOSTGATOR, http://support.hostgator.com/

articles/cpanel/what-is-a-subdomain-name-how-do-i-

create-and-delete-one .....................................................................5, 6

What Are Subdomains and How do They Affect Search

Engine Optimization? The Facts, DOMAIN.ME,

http://domain.me/what-are-subdomains.............................................6


8/39

1


I.

INTRODUCTION

Plaintiff/Appellant Timothy DeWitt (DeWitt) sued Defendants/

Respondents Foot Locker Retail Inc. and 1ink.com for alleged violations ofCalifornias anti-spam law, Business & Professions Code 17529.5

(Section 17529.5). DeWitt is wrong on the facts and the law and he

cannot meet his burden of proof. But Respondents are wrong on facts and

points of law too.

This brief does not address standards of review, joinder, and other

legal topics with which this Court is well familiar. And because the Parties

have more familiarity with the procedural history, this brief will not address

everything that happened in the trial court. Instead, this brief focuses on

some of the intricacies of email advertising litigation with which the author

has considerable experience. Declaration of Daniel Balsam at 2.

DeWitts First Amended Complaint (FAC) is vague at best, failing

to establish that the emails From Names, sending domain names, and

Subject Lines violated Section 17529.5. Foot Locker and 1ink.com

incorrectly claim that truthful statements in the body of an email can cure

misrepresentations in the headers, and incorrectly argue that claims under

Section 17529.5 sound in fraud, implicating both pleading standards and

the exception to federal preemption

This Court should affirm the ruling of the trial court below. This

was a frivolous lawsuit, countered with some well-established and rejected

defenses. There is no new case law to be made here. Bad cases make bad

law, and this is a bad case. It should not result in precedential law.


9/39

2


II.

THE EMAILS COMPLY WITH SECTION 17529.5

DeWitts FAC is vague, to say the least. Although he supposedly

received 345-355 spams1advertising Foot Locker, the FAC provides a

textual description and attaches just oneallegedly violative email.

Appellants Appendix (AA) Item 5 (FAC at 7-8 and Ex. A). And

although DeWitt supposedly received 30-35 spams2advertising 1ink.com,

the FAC provides no textual descriptions or examples at all. AA Item 5

(FAC at 9).

Case law is clear that plaintiffs suing under Section 17529.5 do not

need to meet a fraud standard, infra. It is unreasonable to expect plaintiffs

to attach every single spam of which there could be hundreds or

thousands to a complaint. Still, it is reasonable to require plaintiffs to set

forth some kind of allegations that state the range/scope of statutory

violations, or at least provide multiple examples, even if not a

comprehensive, one-by-one listing.

Here, since DeWitt chose to only attach one Foot Locker email (and

no 1ink.com emails at all), this Court should presume that this emailembodies DeWitts strongest claims i.e., it is the worst of the worst

spams. Respondents are correct that DeWitt does not meet his burden of

proof to show violations of Section 17529.5, as discussed below.

1It is unclear why DeWitt cannot state the number of Foot Locker emails

he received.

2It is unclear why DeWitt cannot state the number of 1ink.com emails he

received.


10/39

3


A. The From Name Foot Locker VIP Does Not Violate Section

17529.5

This Court need not concern itself with Respondents references to

Kleffman v. Vonage Holdings Corp., 49 Cal. 4th 334 (2010) and labeling

requirements, because the simple fact is that the instant emails From Name

says Foot Locker VIP and the email is in fact from Foot Locker. Truth

is not a labeling requirement, but there is no misrepresentation or falsity

here anyway. This email is just like the spam with eHarmony in the

From Name in theBalsam v. Trancos Inc. et al, 203 Cal. App. 4th 1083 (1st

Dist. 2012) case3 the only spam that did not contain generic text in the

From Name, and the only spam for which the court did not award

liquidated damages. The trial court ruled, and the court of appeal affirmed,

that generic From Names Paid Survey, Your Business, Christian

Dating, Your Promotion, Bank Wire Transfer Available, Dating

Generic, and Join Elite violate Section 17529.5, but the From Name

eHarmony does not violate the statute.

Paid Survey is not the name of any existing company, but

rather treats the from line as though an additional subject

line. . . . Other than the email for eHarmony, which does statethat it is from eHarmony, the seven other emails do not truly

reveal who sent the email. Thus the sender information

(from) is misrepresented.

Balsam v. Trancos Inc. et al, No. 471797 at *6, 23 (Super. Ct. Cal. Cty. of

San Mateo Mar. 10, 2010) (judgment and final statement of decision).

Balsam Decl. at 3 and Request for Judicial Notice (filed concurrently).

The court of appeal affirmed the trial court in all respects. Balsam, 203

Cal. App. 4th at 1089.

3The author of this amicus brief was the plaintiff (and co-counsel until

trial) inBalsam v. Trancos. Balsam Decl. at 2.


11/39

4


As a From Name, Foot Locker accurately represents who the

email is from, so hair-splitting arguments as to misrepresented versus

misleading header information are irrelevant.

But, in a weak attempt to create confusion where none exists,DeWitt argues that

Foot Locker VIP would lead the ordinary consumer

recipient of the email to believe that the reason he/she was

receiving the promotional email is that they . . . were

somehow and specifically an existing preferred or VIP

customer of Foot Locker.

AA Item 5 (FAC at 7). This argument is facially ridiculous, because the

email header does not say or even suggest that the recipient is a very

important person. Rather, VIP appears in the From Name field. And

DeWitt never alleged that the email is notfrom a VIP at Foot Locker.

B. A Sending Email Address That Includes e.footlocker.comDoes Not

Violate Section 17529.5

DeWitt argues that e.footlocker.com is a domain name, and alleges

that e.footlocker.com confuses and misleads the ordinary consumer because

it is not traceable through a Whois query. AA Item 5 (FAC at 7). DeWitt

is incorrect and appears to not understand the difference between a domain

nameand a subdomain.

A domain name means any alphanumeric designation that is

registered with or assigned by any domain name registrar as part of an

electronic address on the Internet. Bus. & Prof. Code 17529.1(e).

Here, the domain name isfootlocker.com, and it is compliant with not just

one but both of the requirements set forth byBalsam that the sending

domain name must identify the sender on its face or must be readily

traceable to the sender using a publicly available online database such as


12/39

5


Whois. 203 Cal. App. 4th at 1101. According to DomainTools4records,

footlocker.com was publicly registered to (and readily traceable to) Foot

Locker Retail Inc. on May 21, 2013 (the day before DeWitts exemplar

spam) and May 25, 2013 (three days after). Balsam Decl. at 4 and Ex. A.There is no misrepresentation in the registration information accompanying

the emails headers.

The e. that DeWitt incorrectly claims makes e.footlocker.com

misleading is actually not part of the domain name at all, but rather a

subdomain. According to leading domain registrar GoDaddy Inc.:

A subdomain is an easy way to create a memorable Web

address for unique content areas of your site. For example,

you could create a subdomain for pictures on your site called

"pics" that is accessible through the URL pics.example.com

in addition to www.example.com/pics.

What is a subdomain?, GODADDY, https://support.godaddy.com/help/

article/296/what-is-a-subdomain (last visited Jan. 25, 2015).

Similarly, web hosting provider HostGator states:

It is not always necessary to register a new domain name

when the one you already own will work perfectly fine.

Rather than registering a new domain name, you can alwayscreate a subdomainusing a domain you already own.

4DomainTools offers the most comprehensive searchable database of

domain name registration and hosting data. . . . [U]sers of DomainTools.

com can review millions of historical domain name records . . . . The

Companys comprehensive snapshots of past and present domain name

registration, ownership and usage data, in addition to powerful research and

monitoring resources, help customers by unlocking everything there is to

know about a domain name. DomainTools has almost five billion domainname Whois records going back over ten years. Government agencies,

Fortune 500 companies and leading security firms use our data as a critical

ingredient in their threat investigation and mitigation work. About Us,

DOMAIN TOOLS, https://www.domaintools. com/about (last visited Jan. 25,

2015).


13/39

6


A subdomain is a second website, with its own unique

content, but there is no new domain name. Instead, you use an

existing domain name and change the www to another name.

The subdomain name looks like forums.domain.com,

help.domain.com, help2.domain.com (assuming you already

host domain.com).

What is a Subdomain Name? How Do I Create and Delete One?,

HOSTGATOR, http://support.hostgator.com/articles/cpanel/what-is-a-

subdomain-name-how-do-i-create-and-delete-one (last visited Jan. 25,

2015) (emphasis added).

Finally, premium domain name provider Domain.me states:

Subdomains are a smaller part of a larger domain.The

Domain Name System (DNS) is all about hierarchy.Everything starts with a Top Level Domain (TLD) like .com,

.org, .net, or, in our case, .me. After that, we have the next

step in domain names, like google.com, facebook.com, or for

us, domain.me. After that, we start with subdomains, like

calendar.google.com, plus.google.com, or blog.yourwebsite.

me. So now you know

What Are Subdomains and How do They Affect Search Engine

Optimization? The Facts, DOMAIN.ME, http://domain.me/what-are-

subdomains (last visited Jan. 25, 2015) (emphasis in original).

In short, the domain namefootlocker.com identifies Defendant Foot

Locker on its face and is readily traceable to Foot Locker by a Whois

query, now and when DeWitt received the email, and the e.subdomain

does nothing to change that.

C. The Subject Line Keep It Clean, Keep It Classy with Fresh White

Sneakers! Does Not Violate Section 17529.5

The Subject Line Keep It Clean, Keep It Classy with Fresh WhiteSneakers! is not misleading as to the contents of the email, which

advertises Fresh & Clean white sneakers. Therefore, the Subject Line

complies with Section 17529.5(a)(3).


14/39

7


But Subject Lines can also violate Section 17529.5(a)(2) if they are

absolutely false, as opposed to (a)(3) violations for Subject Lines that are

misleading relative to the contents of the body. Respondents incorrectly

claim that Subject Lines are not part of email headers, citing to Kleffman,49 Cal. 4th at 340. It is true that Kleffman quotesthe CAN-SPAM Act at

15 U.S.C. 7702(8), id. at 340 n.5, which states that

The header of an e-mail is the source, destination, and

routing information attached to an electronic mail message,

including the originating domain name and originating

electronic mail address, and any other information that

appears in the line identifying, or purporting to identify, a

person initiating the message.

Foot Locker Brief at 6, 1Ink.com Brief at 6, and AA Item 6 (Foot Locker

Demurrer at 4:25-28). But a careful reading indicates that, notwithstanding

Respondents claims to the contrary, Kleffman does not actually adoptthe

federal definition. All Kleffman does is note that the plaintiff referred to the

federal definition and that there was no dispute in that case that domain

names were part of email headers. Kleffman never says that Subject Lines

are not part of headers.

Because computers must use standard protocols in order to

communicate, the Internet Engineering Task Force created a collection of

Requests for Comment (RFCs) that define the rules that enable email

to work. RFC 5322 2.2 is entitled Header Fields and 2.2.3 expressly

refers to the Subject as a header field. Internet Message Format, NETWORK

WORKING GROUP, https://tools.ietf.org/html/rfc5322 (last viewed Jan. 25,

2015). The CAN-SPAM Acts definition of email headers may exclude

Subject Lines, 15 U.S.C. 7702(8), but California courts can and should

apply Californias anti-spam law in accordance with standard industry

definitions and protocols.


15/39

8


This Court need not follow federal definitions, particularly in

matters of California law. Elliott v. Albright, 209 Cal. App. 3d 1028 (6th

Dist. 1989). This is particularly true because, as Kleffmanpoints out, the

California Legislature considered but did not adopt a definition similar tothe federal definition. 49 Cal. 4th at 340 n.5. Thus, Respondents have not

presented anyauthority that Subject Lines are not part of email headers.

If this Court chooses to address the topic at all, it should find that

Subject Lines arepart of email headers. However, there is nothing

absolutely false or misrepresented about Keep It Clean, Keep It Classy

with Fresh White Sneakers! i.e., no violations of Section 17529.5(a)(2)

either.

III.

TRUTHFUL STATEMENTS IN THE BODY OF AN EMAIL

DO NOT CURE FALSIFIED OR MISREPRESENTED

INFORMATION IN THE HEADERS

Respondents suggest that truthful information in the body of an

email cures any false/misrepresented information in the headers. Foot

Locker Brief at 11-12.

InBalsam, the trial court ruled that generic text in the From Name

field such as Your Business and Christian Dating violated the statute,

and awarded statutory damages, even though most of the spams identified

the advertiser in the body. Balsam Decl. at 5 and Ex. B, and RJN. The

court of appeal affirmed the trial court in all respects. Balsam,203 Cal.

App. 4th at 1088. Thus, identifying the advertiser in the body does not cure

misrepresentations created by generic text in the From Name field.

To the extent thatRosolowksi v. Guthy-Renker LLC, 230 Cal. App.

4th 1403, 1406, 1416 (2d Dist. 2014) ruled otherwise and there are

currently multiple requests to depublish Guthy-Renkerpending before the


16/39

9


California Supreme Court for precisely this issue, among others, Balsam

Decl. at 6 this Court should disregard Guthy-Renkerbecause the ruling

violates well-established rules of statutory interpretation.5

That said, because the From Name in the exemplar email DeWittprovided Foot Locker VIP does not contain any falsified or

misrepresented information, the email complies with Section 17529.5, and

this Court need not even consider Foot Lockers correct statement that

Foot Locker appears multiple times in the body.

IV.

CLAIMS UNDER SECTION 17529.5

HAVE NOTHING TO DO WITH FRAUD

A. Plaintiffs Suing Under Section 17529.5 Need Not Plead at a Fraud-

Level of Particularity

Although DeWitt failed to state facts supporting his claims under

Section 17529.5, Respondents argument that Section 17529.5 claims

sound in fraud and that DeWitt must plead with the corresponding level

5Section 17529.5(a)(3) prohibits Subject Lines likely to mislead a

reasonable recipient about the subject matter or contents of a spam. Thus, acourt charged with determining whether a Subject Line violates (a)(3) must

analyze the Subject Line relativeto the body. On the other hand, Section

17529.5(a)(2) prohibits falsified, misrepresented, or forged information

contained in or accompanying the email headers. Because there is

relative language in (a)(3) but notin (a)(2), a court must analyze the

From Names from an absoluteperspective. A cardinal rule of

construction is that . . . a construction making some words surplusage is to

be avoided. People v. Gilbert, 1 Cal. 3d 475, 485 (1969) (citation

omitted). If a relative analysis were applied to (a)(2), that would make the

relative language in (a)(3) surplusage. However, by reviewing the FromNames Proactiv and Wen Hair Care in light of the contents of the body

(which identified the advertiser Guthy-Renker LLC), the court conducted a

relativeanalysis,Guthy-Renker, 230 Cal. App. 4th at 1406, 1416, even

though the plain language of the statute simply does not permit the court to

do so.


17/39

10


of particularity, 1ink Brief at 7-10 and Foot Locker Brief at 15-18, go too

far. Both California courts of appeal addressing the preemption question

unambiguously held that Section 17529.5 claims depend onfalsityand not

fraud. Hypertouch Inc. v. ValueClick Inc., 192 Cal. App. 4th 805, 820,824-35 (2d Dist. 2011), accord, Balsam, 203 Cal. App. 4th at 1102.

Therefore, there is no need to plead at a fraud level of particularity.

In support of their position, Respondents cite toMoreland v. AD

Optimizers LLC, No. 5:13-cv-00216-PSG, 2013 U.S. Dist. LEXIS 102366

(N.D. Cal. July 18, 2013). Moreland is correct that plaintiffs asserting

claims grounded in fraud must plead with particularly, id. at *5, but

Moreland is incorrect that claims under Section 17529.5 are grounded in

fraud in the first place. Californias anti-spam law is facially aboutfalse

advertising, notfraud. Moreover,Moreland is an unpublished district court

case, and not binding on this Court. Elliott, supra.

B. The Exception to Federal Preemption is Not Based on Fraud

Because there is nothing false or deceptive about DeWitts exemplar

Foot Locker email, this Court need not reach the issue of whether the CAN-

SPAM Acts exception to preemption is based on fraud or falsity.

Because we conclude Plaintiffs failed to state sufficient facts

to allege violation of section 17529.5, subdivision (a)(2)

(misrepresented header information) or subdivision (a)(3)

(misleading subject lines), it is unnecessary to address

Guthys argument the CAN-SPAM Act preempts Plaintiffs

claims.

Guthy-Renker, 230 Cal. App. 4th at 1418.

However, Respondents misrepresent the preemption issue and case

law as they try to revive this well-settled question. 1ink Brief at 21-24.

California state and federal courts consistently rule that Section 17529.5,

which onlyprohibits falsity and deception, fits squarely within the


18/39

11


exception to preemptionunambiguously set forth by 15 U.S.C.

7707(b)(1).

1. Both California Appellate Cases Hold That Section 17529.5 is

Not Preempted

As discussed above,HypertouchandBalsamruled that the

Section 17529.5 is notpreempted, even without a showing of fraud.

Section 17529.5 does not include many elements associated

with traditional common law fraud

Like several other California consumer protection statutes

targeting deceptive advertising practices, section 17529.5

dispenses with many of the elements associated with common

law fraud, which normally requires the plaintiff to prove " '(a)

[a] misrepresentation ... ; (b) knowledge of falsity (or'scienter'); (c) intent to defraud, i.e., to induce reliance; (d)

justifiable reliance; and (e) resulting damage.' "

[W]e . . . hold that the federal statute does not preempt state

law claims arising under section 17529.5.

The CAN-SPAM Acts savings clause applies to any state

law that prohibits material falsity or material deception in a

commercial e-mail regardless of whether such laws require

the plaintiff to prove and plead each and every element of

common law fraud.

Hypertouch, 192 Cal. App. 4th. at 820, 825, 833 (emphasis added). The

Court of Appeal of the First District then ruled: We find the reasoning of

Hypertouchpersuasive on this [preemption] issue, and adopt it here.

Balsam,203 Cal. App. 4th at 1102.

2. Congress Preempted State Laws Only as to Truthful Spams

In the interest of creating a national uniform standard for

commercial email, Congress chose to exclusively occupy the field of

truthfulcommercial email. But Congress deliberately limited the scope of

federal preemption, expressly authorizing the states to define and regulate

false or deceptivespam. 15 U.S.C. 7707(b)(1).


19/39

12


3. The Exception to Preemption Cannot Depend on Common-Law

Fraud, Because Such Claims Were Never Preempted in the

First Place

The preemption clause at issue deals only withpositive enactments

(statute, regulation or rule), not common law. See Sprietsma v. Mercury

Marine, 537 U.S. 51, 63 (2002). The CAN-SPAM Act preempts certain

positive enactments and then saves a subcategory of those laws. 15 U.S.C.

7707(b)(1). Thus, there is no need to save common-law fraud claims,

because they were never preempted in the first place.

4. Congress Use of Falsity and Fraud So Close Together

Indicates that Congress Meant Two Different Things

Congress used the words falsity or deception in the exception topreemption provision applicable to state laws regulating email, 15 U.S.C.

7707(b)(1), but used the word fraud immediately afterwards in

Section 7707(b)(2)(B) to address laws not specific to email. Different

terms, so close together, clearly indicate that Congress did not intend that

state anti-spam laws survive federal preemption only when a plaintiff

alleges common-law fraud (i.e., reliance and actual damages). IfCongress

had intended (b)(1) to meanfraud, then (b)(1) would be superfluous,

because it would be subsumed by (b)(2)(B).

5. The Disjunctive Or Demonstrates that the Exception to

Preemption Cannot Depend Only on Fraud

Senate Report No. 108-102 at *21 (1st Sess. 2003), accompanying

the CAN-SPAM Act, repeatedly referred to preemption except for fraud or

deception. The repeated use of orconfirms that: 1) deceptivecannot mean

fraudulent, for if it did, then the phrase fraudulent or deceptive itselfwould be redundant, and 2) Congress did not intend that the exception to

preemption depends onlyupon a finding of fraud. Therefore, state statutes

prohibiting deceptive spams like Section 17529.5 are not preempted.


20/39

13


6. In Business & Professions Code 17500 Actions, Fraud

Means the Likelihood of Deception

Even ifCongress meantfraudinstead offalsity, Congress cannot

write laws for the states. It is well established under California law that in

the context of Business & Professions Code 17500 actions, fraud does

not mean the traditional common law tort of fraud (including reliance), but

rather the likelihood of deception. Allegations of actual deception,

reasonable reliance, and damage are unnecessary. Day v. AT&T Corp.,63

Cal. App. 4th 325, 332 (1st Dist. 1998). And,

The evils of deceptive advertising cannot be reached

effectively if legislation to that end is interpreted to require

proof of actual reliance upon a false statement knowinglymade, as in a common law action in deceit.

Ford Dealers Assoc. v. Dept. of Motor Vehicles, 32 Cal. 3d 347, 359

(1982).

7. Congress was Aware of State Anti-Spam Laws Prohibiting

False Spams When it Enacted the CAN-SPAM Act, and

Intentionally Chose Not to Use Fraud in the Exception to

Preemption Provision

Hoang v. Reunion.com Inc. noted that Congress was aware that

many states prohibited false and deceptive spams withoutrequiring reliance

or actual damages, and still chose to preempt state anti-spam laws except

forfalsity, not fraud. No. C-08-3518 MMC, 2010 U.S. Dist. LEXIS 34466

at *17-19 (N.D. Cal. Mar. 31, 2010) (emphasis added). Thus, if Congress

really wanted to preempt state laws except forfraud, it could and would

have simply used only the word fraud in the exception to preemption

provision. However, Congress did not do so.


21/39

14


8. Preemption is Disfavored, Especially as to Areas Traditionally

Regulated by States

As the U.S. Supreme Court held, [W]hen the text of a pre-emption

clause is susceptible of more than one plausible reading, courts ordinarily

accept the reading that disfavors pre-emption. Altria Group Inc. v.

Good, 555 U.S. 70, 77 (2008) (citation omitted). And, Where the field

which Congress is said to have pre-empted includes areas that have been

traditionally occupied by the States, congressional intent to supersede state

laws must be clear and manifest. Jevne v. Superior Court, 35 Cal. 4th

935, 949 (2005). Advertising is traditionally an area of state regulation,

and [c]onsumer protection laws such as the [UCL], false advertising law,

and CLRA, are within the states' historic police powers and therefore are

subject to the presumption against preemption. Farm Raised Salmon

Cases, 42 Cal. 4th 1077, 1088 (2008). Therefore, there is a presumption

againstpreemption of laws prohibiting deceptive acts laws such as

Section 17529.5.

9. Omega World Travel v. Mummagraphics Does Not Stand for

the Proposition of Categorical Preemption Except for Fraud

Even if the Fourth Circuits ruling in Omega World Travel Inc. v.

Mummagraphics, 469 F.3d 348 (4th Cir. 2006) were binding on this Court,

which it is not, Omega does notstate that the CAN-SPAM Act

categorically preempts all state anti-spam laws except for common-law

fraud. Omega considered only the claims of a particular plaintiff suing

under Oklahoma law, and found that his claims were preempted because

they were based on immaterial falsity and technical error. Id. at 353-55,

359. In fact, Omegas facts and holdingare so narrow that a district court

in Maryland part of the Fourth Circuit did not follow Omegawhen it

held that the CAN-SPAM Act did notpreempt Marylands anti-spam law.


22/39

15


Beyond Systems v. Keynetics Inc., No. PJM 04-686 (D. Md. Mar. 26, 2007)

(order denying defendants motion for other relief under FRCP 7 and

second renewed motion to dismiss for lack of personal jurisdiction). Thus,

Omegacannot and does not have general applicability.10. Gordon v. Virtumundo Does Not Support the Assertion that the

CAN-SPAM Act Preempts State Laws Except for Fraud

Spammers also like to claim that Gordon v. Virtumundo Inc., 575

F.3d 1040 (9th Cir. 2009) holds that spam claims under state laws are

preempted except for those arising from traditional tort theories such as

fraud. But they are wrong. In fact, Gordon states that Congress carved

out from preemption state laws that proscribe falsity or deception in

commercial e-mail communications and that Congress did not intend that

states retain unfettered freedom to create liability for immaterial

inaccuracies or omissions. 575 F.3d at 1061-62 (emphasis added).

Critically,Asis Internet Services v. SubscriberBase Inc.pointed out

that the Ninth Circuit ruled that Jim Gordons claims were preempted not

because he did not allege reliance and damages, but rather because

Washingtons anti-spam law was overbroad and purport[ed] to regulate avast array of non-deceptive acts and practices. No. 09-3503 SC, 2010

U.S. Dist. LEXIS 33645 at *31-32 (N.D. Cal. Apr. 1, 2010). Thus, Gordon

ruled only that Washingtonsanti-spam law was preempted because it was

overly broad, prohibiting even truthful spam, such that it did not fit into

the exception to preemption set forth at 15 U.S.C. 7707(b)(1). But

Californiasanti-spam law has a stand alone subsection, Section 17529.5,

that is expressly limitedto falsified, misrepresented, forged, and misleading

spam. Therefore, Section 17529.5 the exact terms of which were known

to Congress when it passed the CAN-SPAM Act fits squarely within the

exception to preemption.


23/39

16


11. The District Courts in California Have Consistently Ruled that

the Exception to Preemption is Based on Falsity, not Fraud

To the extent that rulings from the federal district courts in

California are persuasive authority, any argument that Section 17529.5

claims are preempted except for common-law fraud fails in light of the fact

that the district courts consistently rule, based on the construction of the

CAN-SPAM Act (fraud appears in 15 U.S.C. 7707(b)(2)(B) but not

(b)(1)) and Senate Report No. 108-102 (using the disjunctive fraud or

deception), that the exception to preemption does not require plaintiffs to

plead reliance and damages.

Prior to the Ninth Circuits ruling in Gordon,Asis Internet Services

v. ConsumerBargainGiveaways LLC, 622 F. Supp. 2d 935, 941-42 (N.D.

Cal. 2009) andAsis Internet Services v. VistaPrint USA, 617 F. Supp. 2d

989, 993 both ruled that the CAN-SPAM Act does not preempt Section

17529.5.

Hoang v. Reunion.com initially (prior to Gordon) dismissed

plaintiffs complaint on preemption grounds because they did not allege

common-law fraud (i.e., reliance and actual damages). No. C-08-3518MMC, 2008 U.S. Dist. LEXIS 103659 (N.D. Cal. Dec. 23, 2008). But after

and in direct response toGordon, the court reversed itselfon Hoangs

motion for reconsideration, expressly ruling that the exception to

preemption does not depend on common-law fraud/reliance. 2010 U.S.

Dist. LEXIS 34466 at *5, 15-21.

Following Gordon,Asis Internet Services v. SubscriberBase Inc.,

No. 09-3503 SC, 2009 U.S. Dist. LEXIS 112852 at *9 (N.D. Cal. Dec. 4,

2009) and 2010 U.S. Dist. LEXIS 33645 at *34-35;Asis Internet Services

v. Member Source Media, No. C-08-1321 EMC, 2010 U.S. Dist. LEXIS

47865 at *9-11 (N.D. Cal. Apr. 20, 2010); Wagner v. Spire Vision et al, No.


24/39

17


3:13-cv-04952-WHA, 2014 U.S. Dist. LEXIS 26902 at *3, 8, 11 (N.D. Cal.

Mar. 3, 2014); and Smith v. Anastasia International Inc.,No. 3:14-cv-1685-

H-MDD (S.D. Cal. Sep. 15, 2014) all similarly ruled that the exception to

preemption is based onfalsityand not fraud; no showing of reliance oractual damages is necessary to avoid preemption.

InDavison Design & Development Inc. v. Riley, the court also

initially dismissed the spam recipients counter-claims. No. 4:11-cv-02970

(PJH), 2012 U.S. Dist. LEXIS 131087 (N.D. Cal. Sept. 13, 2012).

However, just likeHoang, the court subsequently reversed itself, ruling that

Gordondoes not limit the exception to preemption to fraud claims. Order

re Motion for Summary Judgment (Nov. 8, 2013).

V. CONCLUSION

Although Respondents made incorrect statements to the trial court

below and to this Court, those incorrect statements do not change the fact

that in the end, DeWitt failed to make his case. With all of the millions of

undisputedly false and deceptive spams out there, DeWitt inexplicably

chose to sue over emails that, even according to his own allegations, simply

do not violate Section 17529.5. Whatever this Court may rule, a case like

thisshould not set legal precedent.

LAW OFFICES OF DANIEL BALSAM

Dated: Jan. 26, 2015 /s/ Daniel L. Balsam

Daniel L. Balsam

Attorneys for Amicus Curiae Jay Fink


25/39

18


CERTIFICATE OF WORD COUNT

(California Rules of Court, Rule 8.204(c)(1)

The text of this brief consists of 4,747 words, excluding tables, this

certificate, the following Declaration, and the following Request for

Judicial Notice, as counted by the Microsoft Word 2003 word processing

program used to generate the brief.

LAW OFFICES OF DANIEL BALSAM

Dated: Jan. 26, 2015 /s/ Daniel L. Balsam

Daniel L. Balsam

Attorneys for Amicus Curiae Jay Fink


26/39

19


DECLARATION OF DANIEL L. BALSAM

I, Daniel Balsam, declare as follows:

1. I am an attorney duly licensed to practice law before this Court. I do

not represent any Parties in this Action. I represent Jay Fink and

dozens of other clients who have an interest in the outcome of this

litigation. I make this Declaration based upon personal knowledge.

If called upon to do so, I could and would testify to the truth of the

facts stated in this Declaration.

2. My reputation as a consumer advocate and suing unlawful spammers

is well-documented. I have being suing spammers under CaliforniaBusiness & Professions Code 17529.5 (and its predecessor,

Section 17538.4) since 2002. My transition from a marketing career

(New York advertising agencies, MBA from The Anderson School

at UCLA, and marketing roles at brick and mortar and Internet

companies) to suing spammers has been documented by CNN,

MSNBC, The Today Show, CBS/San Francisco Consumer Watch,

Fox News, Time Magazine, California Lawyer,Trial Lawyer,

dozens of other print and online articles via Associated Press, and

dozens of radio interviews. Newsweeksays Im awesome. See

www.DanHatesSpam.com. I worked with (former) Senator Kevin

Murrays office and contributed several points to Senate Bill 186

(2003), which became Business & Professions Code 17529. I have

won more than 50 small claims actions against spammers in courts

across the state, beginning long before I graduated from law school

(U.C. Hastings) in 2008. On behalf of my clients, I have settled

hundreds of disputes over allegedly unlawful spams, and I have

represented spam recipients in dozens of lawsuits in California


27/39

20


superior courts and federal courts across the state, including a class

action entitled Kirby v. Spark Networks USA LLC, No. BC493892

(Super. Ct. Cal. Cty. of Los Angeles filed Oct. 16, 2012), which

recently settled. I was co-counsel (until trial) and plaintiff inBalsamv. Trancos Inc., 203 Cal. App. 4th 1083, 1100 (1st Dist. 2012),

petition for review denied, 2012 Cal. LEXIS 4979 (Cal. May 23,

2012),petition for certiori denied, 2012 U.S. LEXIS 8423 (U.S. Oct.

29, 2012),petition for rehearing denied, 2013 U.S. LEXIS 243 (U.S.

Jan. 7, 2013), which was the third California appellate ruling related

to spam, and the first to apply the statute to determine whether

certain From Names were compliant. In short: I know this space as

well as anyone, and far better than most. My interest, drawing on

my own experience in advertising, is in prohibiting false and

deceptive spam. It is worth noting that advocating for consumers

does not mean that I am against email marketing. To the contrary, I

believe that truthful email marketing is a powerful tool. Moreover,

the work I do suing unlawful spammers actually reduces unfair

competition and benefits legitimate advertisers who do not promote

their services through deceptive spams.

3. InBalsam v. Trancos Inc., the trial court awarded, and the court of

appeal affirmed, liquidated damages for seven of the eight spams at

issue with generic text in the From Name field (Paid Survey,

Your Business, Christian Dating, Your Promotion, Bank

Wire Transfer Available, Dating Generic, and Join Elite), but

not for the spam with eHarmony in the From Name.

4. I queried the Whois database and found that the domain name

footlocker.com was created on March 9, 1995. Footlocker.com was


28/39

21


publicly registered to (and readily traceable to) Foot Locker Retail

Inc. on both May 21, 2013 and May 25, 2013. Exhibit A is a true

and correct of historical Whois queries usingDomainTools.com.

5.

InBalsam v. Trancos Inc., the trial court ruled that generic text inthe From Name field such as Your Business and Christian

Dating violated the statute, and awarded liquidated damages, even

though most of the spams identified the advertiser in the body.

Exhibit B is a true and correct copy of one exemplar Trancos spam.

6. There are currently multiple requests to depublishRosolowski v.

Guthy-Renker LLCpending before the California Supreme Court

because Guthy held that alternatives to a senders official name in

the From Name field are permissible as long as the sender is readily

ascertainable in the body, and because the court confused advertisers

and senders, among other issues. I submitted one of the requests.

I declare under penalty of perjury under the laws of the State of California

that the foregoing is true and correct and this Declaration was signed on

January 26, 2015 in Alameda, California.

/s/ Daniel L. Balsam

Daniel L. Balsam


29/39

Exhibit A

Historical Whois Queries for Footlocker.comas of

May 21, 2013 and May 25, 2013


30/39

Home > Whois History > Footlocker.com

Whois History for Footlocker.com

How does this work?

Lookup Domain Ownership History

footlocker.com

LOOKUP

Create a Domain Monitor to monitor future changes to footlocker.com .

Monitor Footlocker.com

ONE-CLICK MONITORING

Enter a term to filter on

collapse all

5 total

Unique Records

private

1,538 historical records found

2015

2015-01-22 more|screenshot




Page 1 of 3Footlocker.com - Whois History - DomainTools

1/25/2015https://www.domaintools.com/research/whois-history/search/?q=e.footlocker.com


31/39

82 total2014









2014-11-08 more

|

screenshot




scroll for more records

Whois Record for 2013-05-21

Previous (2013-05-20) Next (2013-05-25)

Domain:

footlocker.com

Record Date: 2013-05-21

Registrar: MARKMONITOR INC.

Server: whois.markmonitor.com

Created: 1995-03-09

Updated: 2012-12-11

Expires: 2014-03-10

Reverse Whois:

[email protected] [email protected]




32/39

Registrant:

Corporate Counsel

Foot Locker Retail, Inc.

112 West 34th St.

New York NY 10120

US

[email protected] +1.2127203907 Fax: +1.2127204116

Domain Name: footlocker.com

Registrar Name: Markmonitor.com

Registrar Whois: whois.markmonitor.com

Registrar Homepage: http://www.markmonitor.com

Administrative Contact:

Domain Admin

Eastbay, Inc.

111 South 1st Ave

Wausau WI 54401

US

[email protected] +1.7152619642 Fax:

Technical Contact, Zone Contact:

Director of Operations

Eastbay, Inc.

111 South 1st Ave.

Wausau WI 54401

US


Created on..............: 19950308.

Expires on..............: 20140309.

Record last updated on..: 20130428.

Domain servers in listed order:

ns113.akam.net

ns566.akam.net

ns464.akam.net

ns766.akam.net

+

Sitemap Blog Terms of Service Privacy Policy Contact Us Domain News 2015 DomainTools




33/39

Home > Whois History > Footlocker.com

Whois History for Footlocker.com

How does this work?

Lookup Domain Ownership History

footlocker.com

LOOKUP

Create a Domain Monitor to monitor future changes to footlocker.com .

Monitor Footlocker.com

ONE-CLICK MONITORING

Enter a term to filter on

collapse all

5 total

Unique Records

private

1,538 historical records found

2015








34/39

82 total2014









2014-11-08 more

|

screenshot




scroll for more records

Whois Record for 2013-05-25

Previous (2013-05-21) Next (2013-05-26)

Domain:

footlocker.com

Record Date: 2013-05-25

Registrar: MARKMONITOR INC.

Server: whois.markmonitor.com

Created: 1995-03-09

Updated: 2012-12-11

Expires: 2014-03-10

Reverse Whois:

[email protected] [email protected]




35/39

Registrant:

Corporate Counsel

Foot Locker Retail, Inc.

112 West 34th St.

New York NY 10120

US


Domain Name: footlocker.com

Registrar Name: Markmonitor.com

Registrar Whois: whois.markmonitor.com

Registrar Homepage: http://www.markmonitor.com

Administrative Contact:

Domain Admin

Eastbay, Inc.

111 South 1st Ave

Wausau WI 54401

US

[email protected] +1.7152619642 Fax:

Technical Contact, Zone Contact:

Director of Operations

Eastbay, Inc.

111 South 1st Ave.

Wausau WI 54401

US


Created on..............: 19950308.

Expires on..............: 20140309.

Record last updated on..: 20130428.

Domain servers in listed order:

ns113.akam.net

ns766.akam.net

ns464.akam.net

ns566.akam.net

+

Sitemap Blog Terms of Service Privacy Policy Contact Us Domain News 2015 DomainTools




36/39

Exhibit B

Exemplar Trancos Spam


37/39

Print- Close Window

From ChristianDating Fri Jul 27 07:51:57 2007

X-Apparently-To: [email protected] via 68.142.207.105; Fri, 27 Jul 2007 06:47:00 -0700

X-YahooFilteredBulk: 75.140.65.210

X-Originating-IP: [75.140.65.210]

Return-Path:

Authentication-Results: mta254.mail.mud.yahoo.com from=moussetogether.com; domainkeys=pass (ok)

Received:from 75.140.65.210 (HELO fnycrmx.moussetogether.com) (75.140.65.210) by mta254.mail.mud.yahoo.com withSMTP; Fri, 27 Jul 2007 06:47:00 -0700

Comment: DomainKeys? See http://antispam.yahoo.com/domainkeys

DomainKey-Signature:a=rsa-sha1; q=dns; c=simple; s=s512; d=moussetogether.com;b=vY03t4XOXuy0OIY1qJB5Dr27l2CgPHQuxBhGNu5KuwakPjbh+EIen0O3CwFSTpP14G4nslZAKa0U13KfVHDpzw==;

Received:from fnycrmx.moussetogether.com [75.140.65.210] by moussetogether.com [75.140.65.210]; Fri, 27 Jul 200706:51:57 PST

MIME-Version: 1.0

From: "ChristianDating"

To: [email protected]

Subject: Date single Christians

Content-Type: multipart/alternative; boundary="-=653e0c490395cd715e25d3ef4e4a40b5";

Date: Fri, 27 Jul 2007 06:51:57 PST

Message-ID:

X-Mailer: 3.2.14-57 [May 31 2007, 16:32:10]

Content-Length: 2654

On 2007-07-11, you submited [email protected] to receive email offers. We recorded your IP address 64.184.86.246 at thetime of opt in.

This is an advertisement.

Can't View Image?

Page 1 of 2Yahoo! Mail - [email protected]

7/27/2007http://us.f320.mail.yahoo.com/ym/ShowLetter?box=%40B%40Bulk&MsgId=2947_0_161...


38/39

Unsubscribe: To stop receiving email messages from or on behalf of ChristianCafe.com write to: 600 Alden Road, Suite 210,Markham, ON L3R 0E7

Click Here to Unsubscribe

We hope you enjoyed receiving this email, but if you no longer wish to receive our emails please click here.

USAProductsOnline.com11870 Santa Monica Blvd. Suite #106-529Los Angeles, C.A. 90025

Page 2 of 2Yahoo! Mail - [email protected]

7/27/2007http://us.f320.mail.yahoo.com/ym/ShowLetter?box=%40B%40Bulk&MsgId=2947_0_161...


39/39

No. A141847

Timothy DeWitt v. Foot Locker Retail Inc. and 1ink.com

PROOF OF SERVICE AND DELIVERY

I, Daniel L. Balsam, declare that:

I am at least 18 years of age and not a party to the above-entitled

action. My business address is: The Law Offices of Daniel Balsam, 2601C

Blanding Avenue #271, Alameda, CA 94501.

I served the following documents on January 26, 2015:

Application to File Amicus Curiae Brief of Jay Fink

[Proposed] Amicus Curiae Brief of Jay Fink Request for Judicial Notice in Support of Amicus Curiae

Brief of Jay Fink

I served the documents on Appellant Timothy A. DeWitt,

Respondent Foot Locker Retail Inc., and Respondent 1ink.com via

TrueFiling.

I served a text-searchable PDF copy of the documents on the

California Supreme Court by uploading the brief to the Supreme Courts

website (http://www.courts.ca.gov/24590.htm).

I deposited a copy of the documents in a sealed envelope with the

U.S. Postal Service, with the postage fully prepaid, addressed to:

Hon. Ernest Goldsmith, 400 McAllister Street, Dept. 302, San

Francisco, CA 94102

Appellate Coordinator Office of the Attorney General, 455

Golden Gate Avenue, Suite 11000, San Francisco, CA 94102

District Attorney of San Francisco County, 732 Brannan

Street, San Francisco, CA 94103

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct. Executed this 26th day of

January, 2015 at Alameda, California.

/s/ Daniel L. Balsam

Daniel L Balsam

Documents

Balsam Amicus in Dewitt Footlocker