Spertus vs. Kozmo.com

Update (April 17): I won!
Update (April 18): Slashdotted
Update (April 22): Press release issued
Update (May 4): Media coverage

Background

In November, I received email from Kozmo.com that stated that it was being sent to people who had NOT opted in to receive announcements. My complaint to privacy@kozmo.com (the address listed on their website) bounced. A message I sent to customer service was replied to with the statement that the message was not sent in error; they were intentionally mailing people who had not opted in. At this point, I sent a registered letter to Kozmo, asking for (1) an apology, (2) $250, and (3) assurance that this would not happen again. I said that, if I did not receive these, that I would file suit and expected to win under California law. I was not able to get the names of Kozmo officers from the website or by phone, so I addressed my letter to Christopher Shimojima, who was listed in a magazine article as being the VP for customer service. I received the return receipt but no reply. I sent a second letter, which was not replied to in a timely manner.

I filed suit in California Small Claims Court for $500 against Kozmo.com for violating our agreement and sections 17538.45 and 17538.4 of the California Business and Professions Code. I had the SF courts serve papers on Kozmo by registered mail. I paid $27.50 in filing fees. A court date was scheduled for Wednesday, April 4.

Eventually, I did get a response from Kozmo to my letters. Specifically, a message was left on voicemail denying any wrongdoing but offering me "ten Kozmo dollars". I did not return the message.

Hearing: April 4, 2001

I prepared for the hearing by printing all relevant documents in duplicate and highlighting key sections. I tried emailing privacy@kozmo.com, still listed in the privacy policy, to see if it worked and got another bounce. I made a printout of the privacy statement and the two bounces.

At the beginning of the court session, the clerk determined who was in attendance, at which point I found out that Kozmo had sent a representative. The clerk informed us that we needed to share any exhibits with the opposing side, so I gave copies of my documents to the Kozmo rep. (I had only made two sets of documents, one for me and one for the judge. I should have brought three copies.) Two other cases were heard before mine, both of which ended with the judge saying she would mail her ruling in 1-2 weeks. (The other cases involved a car towing and an injury at a Safeway grocery store, apparently due to slipping on chicken grease.)

The judge first asked me to state my side of the case, which I did, as above. I also pointed out that in addition to being the recipient of the email, the mail was routed through a machine that I own with my husband, which may make me qualify as an electronic mail service provider under California Business and Professions Code 17538.45. (The spam was sent to yap-ers@spertus.com, then forwarded to spertus@mills.edu.)

The judge than asked the Kozmo rep to tell her version of the story. She claimed that the mail was not unsolicited commercial email because:

  1. I had an existing business relationship with Kozmo. (This is a reference to paragraph a2A of 17538.45.)
  2. It was not an advertisement; it was a service announcement letting customers know that they could opt in.
Furthermore, she said:
  1. It was only a single message, not multiple messages.
  2. Section 17538.45 applies to electronic mail service providers, which would not apply in this case.
  3. Kozmo's privacy statement only promises not to share our email address, not to avoid sending us unwanted email.

When it was my turn again, I responded to the points:

  1. Confirming that, yes, I did have a business relationship with Kozmo. (It seems like good manners and good policy to express agreement when the opponent says something with which I can agree.)
  2. Arguing that the message was not just an announcement. Its second paragraph, which I showed the judge, announced new services.
  3. I said that I do not know if I qualify as an electronic mail service provider, but that my husband and I do serve several domain names on our computer and forward email for about a dozen people.
I did not respond to points 3 and 5.

During the wind-up phase, the Kozmo rep said that I had not received a timely response from Kozmo because I had sent my complaint letter to someone who was no longer at the company, having left the previous summer. I said that I had not been able to get the names of the officers from the website or by telephone but had gotten it from an article about Kozmo from that summer.

The judge asked us for any documents we wished her to consider. I gave her the above-mentioned documents, plus a few articles about successful suits against spammers. As with the other cases, she told us to expect the decision to be mailed next week or the following one. I will update this site when I receive it.

Judgment

On April 17, I received this judgment that I won my case. I was awarded $50 principal plus $27.50 in court costs. I believe this is the first case of its kind in California. I am very pleased.

Slashdotted

This case is being discussed on Slashdot.

Media Coverage


Last modified: May 4, 2001.
Ellen Spertus