Protorae Law
Mike Holm | LeClairRyan | UBP Team

Unfair Business Practices



This blog focuses on unfair business and trade practices such as business conspiracy, breach of fiduciary duty, misappropriation of trade secrets and other proprietary information, fraud, tortious interference with contracts and other unfair business practices that are not neatly defined. Since we are located in Tysons Corner, Virginia, many of the cases discussed will come from Virginia, Maryland and the District of Columbia courts. We hope the reader finds this blog instructive.




  • James (Jim) B. Kinsel
    Jim Kinsel is a trial attorney who focuses on business litigation and unfair business practice claims, including business conspiracies, trade secret misappropriation, fiduciary duty breaches and other business torts.



  • W. Michael (Mike) Holm
    Mike Holm is a senior trial lawyer who has represented numerous business entities in bet-the-company and other unfair business practices cases.




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Thursday, October 30, 2008

Virginia Supreme Court Overturns Virginia's Anti-Spamming Law

In a rare move, the Supreme Court of Virginia withdrew its prior opinion in Jaynes v. Commonwealth, issued on February 29, 2008, and effectively reversed itself in a new opinion issued on September 12, 2008. The new opinion can be found at http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf. In its new opinion, the Court found that Virginia’s anti-spamming law, Virginia Code section 18.2-152.3:1, was unconstitutional.

The Court's original 4-3 majority opinion, discussed in our prior blog entry, affirmed the criminal conviction of Jeremy Jaynes, who sent over 50,000 unsolicited email to AOL subscribers. Jaynes was found guilty in a jury trial and sentenced to nine years of imprisonment for violating Virginia Code section 18.2-152.3:1. See our prior blog post: http://unfairbusinesspractices.blogspot.com/2008/03/spammer-to-slammer-unfair-business-of.html. The withdrawn opinion can be found at this link: here.

The Court issued its new opinion after granting a petition for rehearing pursuant to Rule 5:39 of the Rules of Supreme Court of Virginia. That Rule provides that: "No petition for rehearing shall be allowed unless one of the justices who decided the case adversely to the applicant is of opinion that there is good cause for such rehearing."

The Court's new opinion declared that section 18.2-152.3:1 was unconstitutionally overbroad because it violated the U.S. Constitution's First Amendment protections. Section 18.2-152.3:1 provides that "Any person who: 1. Uses a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers . . . is guilty . . . ."

The Court first explained the constitutional test: a successful First Amendment overbreath challenge "suffices to invalidate all enforcement of that law upon showing that the law punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly legitimate sweep." Op. at 10 (internal quotes omitted).

The Court expressed its concern that the statute chilled the protected right of anonymous speech:

[B]ecause e-mail transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name. Therefore, . . . registered IP addresses and domain names discoverable through searchable data bases and registration documents necessarily result in a surrender of the speaker’s anonymity. The right to engage in anonymous speech, particularly anonymous political or religious speech, is an aspect of the freedom of speech protected by the First Amendment. By prohibiting false routing information in the dissemination of e-mails, Code [sec.] 18.2-152.3:1 infringes on that protected right.


Id. at 22 (internal quotations omitted). The Court also found that the statute was not narrowly drawn to further a compelling state interest. Id. at 23.

The Justices seemed to suggest that the Virginia legislature could redraft the statute to avoid constitutional infirmity: Sec. 18.2-152.3:1 "is not limited to instances of commercial or fraudulent transmission of e-mail, nor is it restricted to transmission of illegal or otherwise unprotected speech such as pornography or defamation speech. Therefore, . . . 18.2-152.3:1 is not narrowly tailored to protect the compelling interests advanced by the Commonwealth." Id. at 24.

Further, the statute "would prohibit all bulk e-mail containing anonymous political, religious, or other expressive speech. For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute." Id. at 26.

The Court's concern about suppressing free speech tracked those expressed by the dissenting Justices to the Court's original opinion. In her dissenting opinion, Justice Elizabeth Lacy wrote that the "current use of the Internet as the marketplace for expressing political ideas, views and positions emphasizes the need for insuring that use of this medium not be chilled by the threat of criminal prosecution. Those persons wishing to use this medium should have the same ability to express their views anonymously as did Thomas Paine during the founding of our country." Jaynes v. Commonwealth, 275 Va. 341, 367-68 (2008).

The new opinion also addressed the Commonwealth of Virginia's argument that 18.2-152.3:1 was in the "form of trespass and thus not entitled to First Amendment protection," noting that section "does not prohibit the unauthorized use of privately owned e-mail servers." Op. at 19. In this context, the Court drew a distinction between civil cases between private parties where "the courts have held that the unauthorized use of the Internet service providers' property constituted common law trespass and that a First Amendment claim could not be raised against the owner of private property." Id. at 20. Thus, this decision is not an open invitation to spammers or other types of businesses to engage in unfair business practices by wrongfully using another company's servers or other computer equipment.

Monday, October 27, 2008

Same Blog but New Look

Mike Holm and I are pleased to join the law firm Williams Mullen. We have given the blog a new look to provide the reader with links to our new profiles and Williams Mullen's website resources. While the look is different, our focus on unfair business practices remains the same. Mike and I look forward to continuing this blog and we will add new content shortly. Thank you for your readership.