MARYCLE, LLC. v. First Choice Internet, Inc.

ADKINS, J. This case requires us to consider how established law governing personal jurisdiction and the Commerce Clause applies in cyberspace. Asserting claims lor both monetary and injunctive relief, appellants MaryCLE, LLC (MaryCLE) and NEIT Solutions, LLC (NEIT) filed suit against appellees First Choice Internet, Inc. and Joseph Frevola, the president of First Choice, in the Circuit Court for Montgomery County. Appellants maintained that appellees, whom we designate as “First Choice,” 1 violated the Maryland Commercial Electronic ⁴⁸⁸ Mail Act (“MCEMA”), Md.Code (1975, 2005 RepLVol.), § 14-3001 et seq. of the Commercial Law Article (CL), by sending them 83 unsolicited false and misleading commercial emails. First Choice responded by filing a “Motion to Dismiss, or Alternatively, Motion for Summary Judgment,” alleging that (1) MCEMA violates the “dormant Commerce Clause” of the United States Constitution, (2) the circuit court lacked personal jurisdiction over First Choice and Frevola, (3) Frevola could not be sued individually, and (4) First Choice had not violated MCEMA.

After a hearing, the circuit court granted the motion to dismiss and issued a written opinion in which it ruled that (1) MCEMA violates the “dormant Commerce Clause” of the U.S. Constitution as applied in this case, (2) Maryland lacks personal jurisdiction over First Choice and Frevola, and (3) no cause of action was stated against Frevola individually. In doing so, the circuit court considered affidavits submitted by the parties. Accordingly, we treat the motion as one for summary, judgment as required by Md. Rule 2-322(c). As discussed in detail below, we shall reverse because we conclude that personal jurisdiction over First Choice is proper and that MCEMA as applied in this case does not offend the Commerce Clause.

We also determine that there were material disputed facts concerning the individual liability of Frevola that rendered the grant of summary judgment in his favor erroneous. See Md. Rule 2-501. FACTS AND LEGAL PROCEEDINGS The Parties MaryCLE, LLC (pronounced “miracle”), an acronym for “Maryland Consumer Legal Equity,” describes itself as a “consumer protection firm” that “protects consumers wronged ⁴⁸⁹ by online ... marketers[.]” 2 MaryCLE was founded by Eric Menhart, who at the time of the proceedings below, was a third-year law student at the George Washington University Law School. MaryCLE maintains a website on which it states its mission to “protect[] consumers via promotion of responsible marketing practices, mediation, and litigation.” First Choice, on the other hand, describes MaryCLE as a company that set up Internet email accounts to receive emails from Internet marketing companies ... and, when it received a substantial number of email solicitations, [] contacted] the targeted marketing company and demand[ed] a substantial payment as “settlement” of its statutory damages claims under MCEMA in return for MaryCLE’s promise not to file a lawsuit[.] Although MaryCLE is registered in Maryland and has a Maryland mailing address, which is Mr. Menhart’s home address in Adelphi, Maryland, the complaint and MaryCLE’s own website and letterhead list its principal place of business as Washington, D.C. One of the email addresses “registered to and used by MaryCLE” is [email protected]. 3 NEIT Solutions, LLC is an interactive computer service provider (“ISP”) that provides internet services, including the hosting of web space and use of email addresses, to Mary-CLE.

NEIT is a registered Maryland limited liability company that is located in Frederick, Maryland, although its computer servers are located in Colorado. First Choice is an Internet marketing company based in New York that describes its purpose as “promoting] products for various third-party customers through ‘opt-in’ email mailings and promotions!)]” Joseph Frevola, who lives in New York, is the President of First Choice. ⁴⁹⁰ Background Before the events in this case began, First Choice entered into a partnership agreement with a company called Wow Offers, LLC. 4 Wow Offers supplied First Choice with email addresses of people who had allegedly “opted-in” to Wow Offers’ services. First Choice asserts that [email protected] was registered on a website called www.idealclick.com, which in turn provided that email address to Wow Offers. First Choice engaged the services of Master Mailings, LLC, 5 to send promotional emails, including those at issue in this case, to the email addresses obtained through Wow Offers.

First Choice alleges that Master Mailings is located in Virginia. 6 . MaryCLE denies signing up for any “opt-in” services through www.idealclick.com or in any other way giving the email address [email protected] to Wow Offers or First Choice. Nevertheless, on September 18, 2008, First Choice sent an email to MaryCLE at that address. The “From” line of the email indicated that the sender was “Exceptional Deals,” with an email address of [email protected].

The “Subject” line of the email was “Interest Rates are at a 36 Year low-Act Now.” Although the email contained an “unsubscribe” link as well as a postal mailing address to which requests to be removed from the email list could be sent, MaryCLE did not avail itself of the “unsubscribe” option. Instead, it attempted to “Reply” to the email and requested to be removed from the mailing list. The reply was returned to MaryCLE as “undeliverable.” MaryCLE did not send any written communications to the postal address contained in the email. Instead, for reasons not explained in the record, MaryCLE attempted to find a street mailing address for “Exceptional Deals” through the ⁴⁹¹ United States Postal Service.

The Postal Service indicated that it had no address for “Exceptional Deals.” MaryCLE then utilized the free “WHOIS” feature on www.networksolutions.com, a website on which any member of the public can find contact information for the registrants of domain names. 7 After entering the domain “firstchoiceinter-net.com,” MaryCLE obtained Mr. Frevola’s name, as well as an email and mailing address for First Choice. MaryCLE attempted to contact First Choice using this email address, but this email was also returned as “undeliverable.” Mary-CLE did not attempt to contact First Choice by postal mail at this point. By September 30, 2003, MaryCLE had received an additional 23 emails from First Choice. MaryCLE maintains that it replied to each email with a request to be removed from the mailing list, but each time the reply was returned as “undeliverable.” MaryCLE next visited the First Choice website, www.fir-stchoiceinternet.com.

On this site, MaryCLE found a working email address and phone number. MaryCLE sent an email to the email address, [email protected], 8 and left a voice mail at the phone number to inform First Choice that it did not wish to receive further emails. This email was not returned as undeliverable, which led MaryCLE to conclude that an email had finally been received by First Choice. MaryCLE’s phone message was not returned.

Despite these efforts, MaryCLE continued to receive 59 additional emails throughout the month of October, at a rate ⁴⁹² of approximately two per day. MaryCLE maintains that all 83 of the emails it received were opened in either Maryland or Washington, D.C. Examples of subject lines from these emails include “Urgent: Claim Now or Forfeit” and “Confirmation # 87717.” MaryCLE asserts that it replied to every email, and each time its reply bounced back as “undeliverable.” At no time, however, did MaryCLE click on the “unsubscribe” link located within the emails or send any written requests via postal mail to be removed from the mailing list. MaryCLE explains that it did not do so because “ ‘unsubscribe’ links are notoriously unreliable, and have been recognized by many to be a method via which marketers collect ‘live’ e-mail addresses to be resold to other marketers.” On October 28, 2003, MaryCLE sent a second email to [email protected], and for the first time followed up with a letter sent via postal mail to Frevola. The letter was entitled “Notification of Violation of Maryland Law.” 9 On October 29, 2003, the emails to MaryCLE ceased.

On November 10, 2003, Mr. Frevola sent MaryCLE a letter in which he stated that MaryCLE’s email address had been removed from First Choice’s mailing list and that First Choice had ceased all of its mailings indefinitely. Court Proceedings On December 31, 2003, MaryCLE and NEIT filed suit against First Choice and Frevola in the Circuit Court for Montgomery County. They alleged two counts for statutory damages under the Maryland Commercial Electronic Mail Act, and one count for injunctive relief. Before filing an answer, First Choice and Frevola filed a “Motion to Dismiss or, Alternatively, Motion for Summary Judgment,” and MaryCLE filed a response.

See Md. Rule 2-322(a). A hearing was held on October 13, 2004, and on December 9, 2004, the circuit court entered an order granting the motion to dismiss. ⁴⁹³ Relying on the Maryland long arm statute, the circuit court determined that First Choice had not caused tortious injury in Maryland. Nor had it “regularly conducted] business, engaged] in persistent conduct or derive[d] revenues from Maryland.” See Md.Code (1974, 2002 Repl.Vol.2005 Cum.Supp.), § 6 — 103(b)(3)—(4) of the Courts and Judicial Proceedings Article (CJP). 10 The circuit court also declared that the exercise of personal jurisdiction over First Choice would violate its right to due process, because First Choice “did not intentionally direct their emails to the Plaintiffs in Maryland because the Defendants did not even know, and had no ability to know, where the Plaintiffs would actually open the email.” The court explained that the geographic options were limitless. The email addresses of MaryCLE are connected to a computer registered in Virginia, MaryCLE’s principal place of business is in Washington, D.C. and MaryCLE is a registered Maryland corporation.

The Defendants had no way of knowing whether MaryCLE would receive its email in Virginia, D.C., Maryland, or any other state for that matter. Thus, the Defendants did not “purposely” direct their emails to Maryland residents. In considering the constitutionality of MCEMA, the circuit court explained that, “[o]n its face, [the] language [of MCE-MA] does not discriminate against residents from other states.” It determined, however, that, “when the language is applied to the case at bar it does violate the dormant Commerce Clause because the law crosses state boundaries to reach persons who open their email in other states.” Id. (emphasis added).

The court reasoned that First Choice “had no contact with the State of Maryland because their emails were sent from New York, routed through Virginia and Colo ⁴⁹⁴ rado, and finally were received in Washington, D.C.” It explained that MCEMA violates the Commerce Clause because it regulates conduct occurring wholly outside Maryland borders. The statute does not provide that the email must be received in Maryland, instead the statute pertains to situations where an email sender in one state[] sends an email to a Maryland resident living or working in another state. Thus, the statute, as applied in this case, seeks to regulate the transmission of commercial email between persons in states outside of Maryland, even when the email never enters Maryland, as long as the recipient is a Maryland resident. (Emphasis added.) The circuit court finally ruled that Frevola had no personal liability for the alleged MCEMA violations.

It reasoned that, under Maryland law, an officer of a corporation can only be held personally liable for a tort if he “specifically directed the particular act to be done or participated or co-operated therein.” Shipley v. Perlberg, 140 Md.App. 257, 265-66 , 780 A.2d 396 , cert. denied, 367 Md. 90 , 785 A.2d 1293 (2001). The court decided, as a matter of law, that Mr. Frevola “did not specifically direct First Choice to send an email to MaryCLE or to any Maryland residents.” QUESTIONS PRESENTED MaryCLE poses three questions for our review: I. Did the circuit court err when it determined that Maryland lacks personal jurisdiction over First Choice and Frevola?

II

Did the circuit court err when it determined that, as applied in this case, the Maryland Commercial Electronic Mail Act violates the Commerce Clause of the U.S. Constitution? 11 ⁴⁹⁵ III. Did the circuit court err when it determined that Mr. Frevola could not be held personally liable for the statutory violations alleged by MaryCLE? 12 Because we conclude that jurisdiction is proper and that this application of MCEMA does not offend the Commerce Clause, we will reverse the grant of summary judgment in favor of First Choice. We also reverse the circuit court’s order granting summary judgment in favor of Frevola. DISCUSSION Standard Of Review Whether the circuit court erred in granting summary judgment in favor of First Choice and Frevola is a question of law that we review on the same record as the motion court, to determine if its decision was legally correct.

See Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , ⁴⁹⁶ 578 A.2d 1202 (1990). Summary judgment is proper where there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Md. Rule 2-501. The Maryland Commercial Electronic Mail Act The Maryland Commercial Electronic Mail Act (“MCEMA,” or “the Act”) was passed by the Maryland General Assembly in 2002, and became effective October 1 of that year. 13 See CL § 14-3001 et seq.

The Court of Appeals has recognized that this statute was passed “to curb the dissemination of false or misleading information through unsolicited, commercial email, as a deceptive business practice.” Beyond Sys., Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 16 , 878 A.2d 567 (2005). At the time of its enactment, 21 other states had enacted laws to curb the proliferation of “spam” 14 email, or “UCE” (unsolicited commercial email). 15 See id. “Spam is ⁴⁹⁷ the twenty first century version of junkmail and over the last few years has quickly become one of the most popular forms of advertising over the Internet, as well as one of the most bothersome.” Verizon Online Servs., Inc. v. Ralsky, 203 F.Supp.2d 601, 606 (E.D.Va.2002). MCEMA provides that a person may not “initiate,” “conspire to,” or “assist in” the “transmission of commercial electronic mail” either from a computer within Maryland or to an email address “that the sender knows or should have known is held by a resident of” Maryland, if the mail “[cjontains false or misleading information” about either the origin or transmission path of the email, see CL § 14 — 3002(b)(2)(ii), 16 or “in the subject line” of the email, see § 14 — 3002(b)(2)(iii). “Commercial electronic mail” is defined as “electronic mail that advertises real property, goods, or services for sale or lease.” § 14-3001(b)(3). The Act contains a presumption that the sender of UCE knows the recipient is a Maryland resident “if the information is available on request from the registrant of the Internet domain name contained in the recipient’s electronic mail address.” § 14-3002(c).

The statutory damages allowed by the Act are the greater of $500 or actual damages to the recipient of the email, and the greater of $1000 or actual damages to the ISP. See § 14-3003(1) and (3). The Act also provides for the recovery of reasonable attorneys’ fees. See § 14-3003.

I. Personal Jurisdiction A. Constitutional Framework The question of whether a Maryland court can exercise personal jurisdiction over an out-of-state defendant starts with a two-part inquiry. See Beyond Sys., 388 Md. at 14 , 878 A.2d 567 “First, we consider whether the exercise of jurisdiction ⁴⁹⁸ is authorized under Maryland’s long arm statute,” which is CJP section 6-103. Id. “Our second task is to determine whether the exercise of jurisdiction comports with due process requirements of the Fourteenth Amendment” of the Federal Constitution. Id. at 15 , 655 A.2d 1265 .

With respect to this two-part test, Maryland courts “have consistently held that the purview of the long arm statute is coextensive with the limits of personal jurisdiction set by the due process clause of the Federal Constitution.” Id. Thus, “our statutory inquiry merges with our constitutional examination.” Id. at 22, 655 A.2d 1265 . 78 A.2d 567 In order to pass constitutional muster under the Due Process Clause, the defendant must have “minimum contacts” with Maryland such that our exercise of jurisdiction “does not offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 , 66 S.Ct. 154, 158 , 90 L.Ed. 95 (1945) (citation omitted). “[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities” within Maryland. Hanson v. Denckla, 357 U.S. 235, 253 , 78 S.Ct. 1228, 1240 , 2 L.Ed.2d 1283 (1958). While the “nature” of the defendant’s contacts with Maryland are important, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416-17 , 104 S.Ct. 1868, 1872-73 , 80 L.Ed.2d 404 (1984), we must additionally consider “the relationship among the defendant, the forum, and the litigation,” Shaffer v. Heitner, 433 U.S. 186, 204 , 97 S.Ct. 2569, 2580 , 53 L.Ed.2d 683 (1977), to determine whether the defendant “should reasonably anticipate being haled into court” in Maryland.

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 , 100 S.Ct. 559, 567 , 62 L.Ed.2d 490 (1980). Generally, there are two types of jurisdiction: “specific” and “general.” 17 “If the defendant’s contacts with [Maryland also] form the basis for the suit,” then Maryland courts have specific jurisdiction. Beyond Systems, 388 Md. at 26 , 878 ⁴⁹⁹ A.2d 567. “If the defendant’s contacts ... are not the basis for the suit,” then the defendant must have “continuous and systematic” contacts with Maryland such that we may exercise general jurisdiction. Id. at 22, 878 A.2d 567 (citations omitted).

Because First Choice’s email contacts with Maryland also form the basis of this suit, our analysis will be focused on whether Maryland can exercise specific jurisdiction over First Choice. 18 The Court of Appeals has adopted the Fourth Circuit’s three-part test for determining whether specific jurisdiction exists: In determining whether specific jurisdiction exists, we consider (1) the extent to which the defendant has purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs’ claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable. Id. at 26 , 878 A.2d 567 (citing Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 397 (4th Cir. 2003)). We will discuss each prong of this test, and its application to First Choice, in the sections that follow. B. The Parties’ Contentions MaryCLE’s argument in favor of personal jurisdiction boils down to the allegation that “sending ‘hundreds of thousands’ ⁵⁰⁰ of commercial email messages would lead any rational marketer to believe that his messages would be received and read by residents in most any state in the nation.” MaryCLE analogizes First Choice’s email contacts with Maryland residents to “traditional mail, telephone calls, or even advertisements placed in a newspaper,” which it contends Maryland courts have found to be sufficient contacts to meet jurisdictional requirements.

MaryCLE further points out that, under the terms of MCEMA, the sender of a commercial email is presumed to know that the recipient of the email is a resident of Maryland if the information about the holder of the email account is available upon request from the domain name registrant. See CL § 14-3002(c). Referring to free searches available on websites such as www.networksolutions.com, Mar-yCLE explains that the domain name registry for “maryland-state-resident.com” contains a Maryland address. First Choice, on the other hand, maintains in its brief that there is no way of knowing where the owner of an email address resides or where he might open up his email.

It argues that the fact that it could have found out that “mary-land-state-resident.com” was registered in Maryland does not mean that it “knew that the emails would be received in Maryland[.]” At oral argument, First Choice conceded that it knew some emails would be opened in Maryland, but insisted that, because its emails were being distributed across the country, it was not purposefully availing itself of any particular jurisdiction. C. Jurisdiction Over First Choice Is Proper In Maryland This case amply demonstrates that “[ejach new development in communications technology brings new challenges to applying the principles of personal jurisdiction.” Verizon Online, 203 F.Supp.2d 601, 604 (E.D.Va.2002). See also McGee v. Int’l Life Ins. Co., 355 U.S. 220, 222-23 , 78 S.Ct. 199, 201 , 2 L.Ed.2d 223 (1957)(recognizing that advances in communica ⁵⁰¹ tions and technology have expanded the “permissible scope of personal jurisdiction”); Hanson, 357 U.S. at 250-51 , 78 S.Ct. at 1238 (“As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase”); World-Wide Volkswagen, 444 U.S. at 293 , 100 S.Ct. at 565 (observing that, since McGee , “historical developments” have further relaxed the limits of due process).

Maryland state appellate courts have not had many opportunities to consider the application of personal jurisdiction law to cases concerning email and the Internet. Beyond Systems involves both, but is quite unlike this case. 19 Indeed, at oral argument, each party acknowledged that, because of the factual differences, Beyond Systems did not advance its arguments here. In the absence of an analogous email case, we will apply the three-part test adopted in Beyond Systems , 20 see 338 Md. at 26 , 655 A.2d 1265 , using three cases decided by other courts to help shape our reasoning. ⁵⁰² 1. The Reasoning Of Three Other Courts In a case in which the defendant corporation sent one commercial email to the plaintiff, a Utah resident, the Court of Appeals of Utah decided that the one email was sufficient to warrant the exercise of personal jurisdiction in a cause of action for violation of Utah’s commercial email statute.

See Fenn v. MLeads Enters., Inc., 103 P.3d 156, 164 (Utah Ct. App.2004), cert. granted 109 P.3d 804 (Utah 2005). The Utah court, considering that the Utah long arm statute (like Maryland’s) extends as far as the limits of due process, found that the defendant “directed its agent [a marketing company] to solicit business, and that direction instantiates the purpose that makes the connection more than an ‘attenuated nexus.’ ” Id. at 162 (citation omitted). The court further determined that, even though the sender of the email did not know where geographically the email was opened, it was reasonable for the defendant to expect to be haled into court “wherever its email[s] were received.” Id. Finally, the court concluded that Utah had an interest in “preventing its residents from receiving noncompliant email” and that this interest, among others, outweighed the burden placed on the out-of-state defendant.

See id. at 163-64. The U.S. District Court for the Southern District of Mississippi reached a similar conclusion in a case in which the defendant sent an unsolicited email to people “all over the world, including Mississippi residents, advertising a pornographic web-site.” See Internet Doorway, Inc. v. Parks, 138 F.Supp.2d 773, 774 (S.D.Miss.2001). The defendant altered the email so that it appeared to have been delivered from an email address held by the plaintiff corporation. See id.

The corporation complained that the emails caused it to suffer damages in the form of losing goodwill in the community and expending time and resources in responding to the complaints of people who received the offensive email. Applying the Mississippi long arm statute, which is similar to Maryland’s, the court determined: ⁵⁰³ [W]hen [the defendant] allegedly transmitted the e-mail to a recipient or recipients in Mississippi, it was an attempt to solicit business for a particular web-site. Thus, [the defendant] committed a purposeful act that occurred in Mississippi, just as if she had sent via United States Mail a letter to a Mississippi resident advertising a particular product or service. Id. at 776 .

The federal court went on to explain that, in sending emails all over the world, the defendant “had to have been aware that the e-mail would be received and opened in numerous fora, including Mississippi.” Id. at 779 . Thus, it was fair for Mississippi to exercise personal jurisdiction. By sending an e-mail solicitation to the far reaches of the earth for pecuniary gain, one does so at her own peril, and cannot then claim that it is not reasonably foreseeable that she will be haled into court in a distant jurisdiction to answer for the ramifications of that solicitation. Id. at 779-80 .

The U.S. District Court for the Eastern District of Virginia has also decided that email solicitations can constitute the basis for the exercise of personal jurisdiction. See Verizon Online Servs. Inc. v. Ralsky, 203 F.Supp.2d 601, 622-23 (E.D.Va.2001). In Verizon Online, the court considered the defendants’ argument that they had not purposefully availed themselves of the laws of Virginia because they did not know, or have any way of knowing, that they were sending commercial emails to Virginia residents or through a server located in Virginia.

See id. at 612 . In a carefully reasoned opinion, the court found that the emails were “knowing and repeated commercial transmissions” that the defendants knew would be routed through Verizon’s servers in Virginia because the defendants sent their emails to Verizon-based domain names. See id. at 617-18 (citations omitted). When the defendants compared their emails to the placement of an item in the stream of commerce, which a plurality of the Supreme Court has rejected as the sole basis for the ⁵⁰⁴ exercise of jurisdiction, see Asahi Metal Indus.

Co. v. Superior Court of Cal., 480 U.S. 102, 112 , 107 S.Ct. 1026, 1082 , 94 L.Ed.2d 92 (1987), the federal court rejected the argument. In its view, “[djefendants’ conduct and connections to Virginia were of their own choosing, not someone else’s ... They cannot seek to escape answering for these actions by simply pleading ignorance as to where the servers were physically located.” Id. at 620. The court further concluded that, considering Virginia’s interests in adjudicating the claim, which was filed by a Virginia corporation under a Virginia statute governing email use, jurisdiction was constitutionally reasonable.

See id. at 621-22. We find the reasoning of these three cases instructive, and rely on them in performing our analysis under the three-part inquiry adopted by the Court of Appeals in Beyond Systems . 21 2. Claim Arising Out Of Forum Activities We begin with the second factor, as it is the simplest. “If a defendant’s contacts with the forum state are related to the operative facts of the controversy, then an action will be deemed to have arisen from those contacts.” CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1267 (6th Cir. 1996). Here, the “connection to [Maryland] is the claim ⁵⁰⁵ itself — the transmission of [email] to Maryland residents.” Verizon Online, 203 F.Supp.2d at 620 .

MaryCLE’s claims are based upon First Choice’s action in sending emails to Mary-CLE in Maryland. Thus, First Choice’s alleged contacts with Maryland are related to the “operative facts” of this case. In other words, “[b]ut for [First Choice’s] alleged transmission of this spam,” MaryCLE and NEIT “would not have suffered an injury.” Id. at 621 . This requirement for personal jurisdiction is therefore met. 3.

Purposeful Availment We next address the first factor, purposeful availment. The Supreme Court has emphasized that the “quality and nature” of the defendant’s contacts are critical to the question of purposeful availment. Hanson, 357 U.S. at 253 , 78 S.Ct. at 1240 . Looking to the quality and nature of First Choice’s contacts, we observe that First Choice admits that it sent “hundreds of thousands” of email advertisements to recipients all over the country.

First Choice contends that, although it sent emails everywhere, it did not purposefully avail itself of “the privilege of conducting business in Maryland.” We disagree. This argument resembles the one made in World-Wide Volkswagen, 444 U.S. at 295 , 100 S.Ct. at 566 , that “foreseeability” that a product would cause injury in another state was insufficient for jurisdiction. In World-Wide Volkswagen, the Supreme Court did conclude that “mere” “foreseeability” that a product (in that case, an automobile), would “find its way into the forum State” was not enough on its own to exercise jurisdiction. See id., 444 U.S. at 297 , 100 S.Ct. at 567 .

It cautioned, however, that jurisdiction could be proper when “the defendant’s conduct and connection with the forum State” rendered it foreseeable that he might be expected to answer for his actions in that State. 22 See id ⁵⁰⁶ First Choice’s emails did not merely “find [their] way” into Maryland the way a car, sold in one state by the defendant, might find its way to another because the plaintiff drove it into another state. See id. Rather, First Choice directly caused the emails to be sent to Maryland, among other states. It is thus reasonable for First Choice to expect to answer for those emails in Maryland, or any other state to which they were sent.

See Fenn, 103 P.3d at 162 ; Internet Doorway, 138 F.Supp.2d at 776 . The Court of Appeals has explained that there is a difference between a merchant who purposefully “sends a product” into another jurisdiction and one that simply receives business from another state. In Camelback Ski Corp. v. Behning, 312 Md. 330, 340-41 , 539 A.2d 1107 , cert. denied, 488 U.S. 849 , 109 ⁵⁰⁷ S.Ct. 130, 102 L.Ed.2d 103 (1988)CCamelbacIc II”), the Court elaborated: [A] significant difference exists between regularly placing goods into a stream of commerce with knowledge they will be sold in another state on the one hand, and knowingly accepting the economic benefits brought by interstate customers on the other hand. Ordinarily, one who purposefully sends a product into another jurisdiction for purposes of sale may reasonably expect to be haled into court in that State if the product proves to be defective and causes injury there.

In addition to having caused a direct injury within the forum State, that manufacturer or distributor has purposefully availed himself of the laws of the forum State that regulate and facilitate such commercial activity. The same cannot be said of the fixed-site merchant who is simply aware that a portion of his income regularly is derived from the patronage of customers coming from other states ... Although he may cause an indirect impact on the forum State by injuring one of its residents, he causes no direct injury in the State, and does not avail himself of the protection or assistance of its laws. (Emphasis added.) The Court in Camelback II concluded that jurisdiction was not proper.

See id. at 343, 539 A.2d 1107 . The defendant in Camelback II, however, was a “fixed-site” ski resort whose limited contacts with Maryland included mailing brochures to Maryland ski shops upon the request of the Maryland shops. 23 See id. at 341, 539 A.2d 1107 . In contrast, First ⁵⁰⁸ Choice reached out to other jurisdictions, including Maryland, by sending their uninvited advertisements there. 24 Additionally, unlike Camelback II and World-Wide Volkswagen, the emails themselves were the product. First Choice made its money by the very act of identifying email account holders nationwide, and transmitting emails from one state to residents of other states, including Maryland.

Without the information identifying email addresses and transmittal to those addresses, First Choice had no product. In contrast, Camelback’s product was a ski resort located in Pennsylvania, and World-Wide Volkswagen’s product was a car sold to a New York customer in New York, and driven by the customer to Oklahoma, the forum in which the plaintiff tried to sue for injuries allegedly caused by a defect in the car. We also reject First Choice’s claim that jurisdiction is not proper because, even if it knew where the recipients reside, it had no idea where the emails would be opened. This allegation has little more validity than one who contends he is not guilty of homicide when he shoots a rifle into a crowd of people without picking a specific target, and someone dies.

See Digital Equip. Corp. v. AltaVista Tech., Inc., 960 F.Supp. 456 , 469 n. 27 (D.Mass.1997)(likening the sending of advertisements via the Internet to a gunman “repeatedly firing a shotgun into a crowd across the state line, not aiming at anyone in particular, but knowing nonetheless that harm in ⁵⁰⁹ the forum state may be caused by its actions outside it”). Cf. Charles E. Moylan, Jr., Criminal Homicide Law § 3.25 (MIC-PEL 2002)(“Where a wide-ranging lethal attack is unleashed, even though its primary intended target is a single person in the killing zone or target area, there may be a murderous mens rea with respect to all persons who are also coincidentally in the line of fire.... [Tjhere is a concurrent murderous intent directed towards all who are in harm’s way”).

In Digital Equipment, a trademark infringement case, the federal court reasoned that jurisdiction was proper because, [wjhere the case involves torts that create causes of action in a forum state ... the threshold of purposeful availment is lower. The defendant allegedly causing harm in a state may understandably have sought no privileges there; instead the defendant’s purpose may be said to be the targeting of the forum state and its residents. Digital Equip., 960 F.Supp. at 469 (emphasis added). First Choice’s purpose in sending commercial emails was likewise the targeting of its email recipients, who included Maryland residents.

In sum, First Choice cannot plead lack of purposeful availment because the “nature” of the Internet does not allow it to know the geographic location of its email recipients. See Verizon Online, 203 F.Supp.2d at 620 . Rather, when considering the “nature” of First Choice’s contacts, our focus should be on the fact that the emails are communications specifically and deliberately designed to convince the recipients to engage the services of First Choice and to promote the products of its customers. Although First Choice did not deliberately select Maryland or any other state in particular as its target, it knew that the solicitation would go to Maryland residents.

Its broad solicitation of business “instantiates the purpose that makes the connection more than an ‘attenuated nexus,’ ” and thus it should be subject to jurisdiction “wherever its emails] were received.” Fenn, 103 P.3d at 162 (citations omitted). ⁵¹⁰ 4. Constitutional Reasonableness We also conclude that the exercise of jurisdiction over First Choice would be constitutionally reasonable. To determine what is reasonable, we look to several factors: the forum State’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective relief ..., the interstate judicial system’s interest in obtaining the most efficient resolution of controversies^] and the shared interest of the several States in furthering fundamental substantive social policies. World-Wide Volkswagen, 444 U.S. at 292 , 100 S.Ct. at 564 (citations omitted).

The Supreme Court has asserted that, once purposeful availment has been established, a defendant must make a “compelling case” that it is unreasonable or unfair to require it to defend a suit out of State. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 , 105 S.Ct. 2174, 2184-85 , 85 L.Ed.2d 528 (1985). First Choice contends that the burden on it to comply with MCEMA is too great because there is no way to know where the emails will be received. It disputes MaryCLE’s contention that it can discover the location of the email recipient by looking up the domain name registrant’s address on searches such as the one available on www.networksolutions.com, explaining that in cases where the domain is a common one, such as “hotmail,” it is impossible to figure out where an individual recipient of an email would be located.

We reject First Choice’s argument for two reasons. First, while it might be impossible to determine the location of an email recipient in cases of common domain names such as “hotmail,” in this case that is not true. MaryCLE has demonstrated that a search on www.networksolutions.com indicates that “maryland-state-resident.com” is, unsurprisingly, registered in Maryland. Second, we reject First Choice’s approach to analyzing the “burden” imposed on it.

The burden of complying with MCE- ⁵¹¹ MA is to disseminate truthful, non-deeeptive emails; it is not to determine the location of email recipients. See Washington v. Heded, 143 Wash.2d 824 , 24 P.3d 404 , 411, cert. denied, 534 U.S. 997 , 122 S.Ct. 467 , 151 L.Ed.2d 383 (2001)(discussed infra in Section II). First Choice remains free to send emails into Maryland so long as it does not violate the truth requirements of MCEMA. This is not a great burden to meet.

First Choice attempts to distract us from the real burden here— sending only truth — by arguing that it is impossible to determine residency or location of receipt. “This focus on the burden of non compliance” misses the point. See id. at 411; see also Ferguson v. Friendfinders, Inc., 94 Cal.App.4th 1255, 1265 , 115 Cal.Rptr.2d 258 (Cal.Ct.App.2002)(rejecting argument that burden imposed by UCE statute to determine residency is too great; concluding that real burden is to comply with statute’s substantive terms). Turning to Maryland’s interest in adjudicating this dispute, we observe that MCEMA was passed largely because the financial and social burden of UCE on Maryland consumers is great. Maryland certainly has an interest in protecting its consumers, not only from the costs associated with UCE proliferation, but also from becoming the victims of fraud and schemes initiated by false and misleading email.

Cf. Verizon Online, 203 F.Supp.2d at 621-22 (“Virginia has a strong interest in resolving this dispute because it involves a Virginia resident and Virginia law. Indeed, Virginia recently enacted [a computer crime statute] to specifically address the conduct Defendants are accused of committing”); Heckel, 24 P.3d at 411 (state has a legitimate interest in creating a penalty for sending false and misleading spam to its residents). Additionally, as the State of Maryland and the United States Internet Service Provider Association (“US ISPA”) point out in the amici briefs filed in this case, the financial costs of spam and UCE are great. 25 To this effect, a recent ⁵¹² University of Maryland study concluded that deleting unwanted email costs nearly $22 billion annually in lost productivity.

See National Survey Finds 22.9 Million Hours a Week Wasted on Spam, (http://www.rhsmith.umd.edu/ntrs/Xlast visited Jan. 16, 2006). Congress has similarly concluded that “spam would cost corporations over $113 billion by 2007.” S.Rep. No. 108-102 (2003), http://www.thomas.loc.gOv/cgi-bin/cpquery/T? & report=srl02 & dbnamel08/ (last visited Jan. 16, 2006). The costs associated with spam or UCE can largely be explained by the time and effort that must be expended to delete it.

Each unwanted email that a recipient attempts to respond to “instantly becomes three separate e-mail messages (and additional computer log entries)!/]” Heckel, 24 P.3d at 410 n. 8. This is because: (1) the ISP server that is the victim of the fraudulent return address or domain name sends an error message back to the Internet user and their ISP announcing that the return path was invalid, (2) a message is sent to the server administrator requesting an investigation of the return address for potential problems, and (3) a message is sent to the server log in case the ISP wishes to track down the problem later. Id. With mass mailings such as those sent by First Choice, “these messages snowball to clog ISP resources, and ISPs have little choice but to purchase additional equipment at a significant cost.” Id.

The cost is then passed onto consumer subscribers of Internet services. See also Heckel, 24 P.3d at 409-11 (detailing the costs associated with spam); Ferguson, 94 Cal.App.4th at 1267-68 , 115 Cal.Rptr.2d 258 (same); 15 U.S.C. §§ 7701 (a)(Congressional findings for the CAN-SPAM Act on the costs associated with spam). With respect to MaryCLE’s interest in obtaining relief, we similarly conclude that Maryland is the appropriate forum. MaryCLE has a financial interest in recovering for the injury it allegedly suffered and has also asserted a claim for injunctive relief.

Maryland is the state in which Mary- ⁵¹³ CLE suffered that injury. 26 The Supreme Court has reasoned that jurisdiction is proper in the state in which “the brunt of the injury would be felt[.]” 27 Calder v. Jones, 465 U.S. 783, 789-90 , 104 S.Ct. 1482, 1487 , 79 L.Ed.2d 804 (1984). First Choice is aware that by sending potentially false and misleading emails, any injuries caused by those emails would be felt in the state in which they were received, rather than the state from which they were sent. See Verizon Online, 203 F.Supp.2d at 617-18, 621-22 . Regarding the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, we conclude that because this claim is based on a Maryland state statute, the most efficient locus for the suit is Maryland itself.

As we explained above, the Maryland legislature created a private cause of action to further the state’s financial and social goals in reducing the number of deceptive emails sent here. The interstate judicial system has an interest in Maryland adjudicating this claim because it seeks to enforce a Maryland prohibitory statute. Maryland courts can do so most efficiently because they are familiar with the Maryland statute. We also consider that there is no showing in the record that this is a case in which the defendant will be required to bring numerous witnesses from another state.

See Burger King, 471 U.S. at 483 , 105 S.Ct. at 2188 . This is simply not a case in which defending the suit in Maryland is “ ‘so gravely difficult and inconvenient’ that [First Choice] unfairly is at a ‘severe disadvantage’ in comparison” to MaryCLE, or a disadvantage ⁵¹⁴ of “constitutional magnitude.” Id., 471 U.S. at 476, 484 , 105 S.Ct. at 2185, 2188 . Finally, we look at the shared interest of the several states in furthering fundamental substantive social policies. In doing this aspect of the analysis, we consider whether there might be a potential conflict between two states’ social policies that would impact the exercise of jurisdiction.

See Burger King, 471 U.S. at 477 , 105 S.Ct. at 2185 . We observe that New York has no commercial email or spam statute; thus, there is no potential conflict with respect to the two states’ “social policies.” See David E. Sorkin, Spam Laws, http://www.spamlaws.com/state/ny/shtml (information verified through Mar. 20, 2005)(last visited Jan. 16, 2006). If we were to accept First Choice’s argument that jurisdiction is not proper in Maryland because it is impossible to determine the residency of an email recipient, that would be equivalent to saying that First Choice could only be sued in New York. While certainly New York courts are capable of adjudicating a suit based entirely on a Maryland statute, limiting jurisdiction to New York does not promote Mary-land’s social policies or efficiency, particularly when the alleged harm occurs in Maryland.

Applying similar reasoning, the federal court in Verizon Online commented that jurisdiction is proper in the state in which the harm is suffered, especially considering that many states have enacted anti-spam laws: [Permitting Defendants to escape personal jurisdiction simply because they claim they were unaware that Verizon’s email servers were located in Virginia would be fundamentally unfair. Setting such a precedent would allow spammers to transmit UBE [28] with impunity and only face suit if the injured party had the resources to pursue the litigation where the tortfeasor resides rather than where the injury occurred.... [Ajllowing the spammer to evade personal ⁵¹⁵ jurisdiction in the forum where their conduct causes the greatest harm would frustrate [anti-spam] laws. Verizon Online, 203 F.Supp.2d at 622 . Because we determine that all three parts of the jurisdictional test are met, we conclude that personal jurisdiction over First Choice is proper.

Our next step is to examine First Choice’s challenge to MCEMA under the Commerce Clause of the Federal Constitution.

II

The Commerce Clause A. Constitutional Framework The Commerce Clause, U.S. Const., art. I, § 8, cl. 3, empowers Congress “to regulate Commerce with foreign Nations, and among the several States.” “The Clause is both an affirmative grant of legislative power to Congress and an implied limitation on the power of state and local governments to enact laws affecting foreign or interstate commerce.” Bd. of Trs. of the Employees’ Ret. Sys. of Baltimore City v. Mayor and City Council of Baltimore, 317 Md. 72, 131 , 562 A.2d 720 (1989),