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Tag Archives: CPM

Lewis & Lin Obtains Dismissal of Unfair Trade Practices Claim Against Email Marketing Firm

In a broad decision, a state court in Florida has dismissed with prejudice all claims asserted against Lewis & Lin’s client, a leading digital marketing technology company. The case involved the licensure of a proprietary computerized database comprised of names, postal addresses, telephone numbers and associated email addresses of individuals who had agreed to receive marketing communications.  Plaintiff alleged that our client unilaterally raised the fees it charged to send out every 1000 emails (the cost per mille, or “CPM” rate).

Plaintiff had asserted claims against our client for violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), a so-called “Mini-FTC Act.”  Plaintiff sought unspecified damages as well as declaratory and injunctive relief.

Lewis & Lin filed a Motion to Dismiss the Complaint, arguing that the case belonged in binding arbitration pursuant to the licensing agreement, which contained a mandatory arbitration clause—even though that agreement was never signed by the parties.  The court agreed with Lewis & Lin’s position, ruling that under Florida precedent, arbitration clauses can be enforced even when they are part of an unsigned agreement if the parties performed under the terms of the contract.

The court also rejected defendant’s argument that FDUPTA claims are not subject to arbitration clauses due to the statute’s policy of protecting Florida consumers.  The court ruled that nothing prohibited FDUPTA claims from being decided in an arbitration, and that, in any event, under the terms of the unsigned licensing agreement, it was New York law, not Florida law, that governed.

The court’s dismissal of the case with prejudice effectively means that our client has saved thousands of dollars worth of legal fees to litigate a case in a distant court, and extinguished a potentially expensive claim.  David Lin argued the case for the firm.