                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 17 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JAMES SAMUEL GORDON, JR.,                        No. 11-35877

              Plaintiff - Appellee,              D.C. No. 2:08-cv-05074-LRS

  v.
                                                 MEMORANDUM*
COMMONWEALTH MARKETING
GROUP INC., a Pennsylvania corporation,

              Defendant-third-party-
plaintiff - Appellee,

  v.

IMG ASSOCIATES, LLC, a Georgia
limited liability company and IMPULSE
MARKETING GROUP, INC., a Georgia
corporation,

              Third-party-defendant -
Appellants.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Lonny R. Suko, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                           Submitted October 12, 2012**
                               Seattle, Washington

Before: TASHIMA, M. SMITH, and CHRISTEN, Circuit Judges.

      Third-party Defendants-Appellants IMG Associates and Impulse Marketing

Group, Inc. (collectively, IMG), appeal the district court’s summary judgment in

favor of Defendant-Third-party Plaintiff, Commonwealth Marketing Group, Inc.

(Commonwealth) under the parties’ Marketing Service Agreement (Agreement),

which is governed by Georgia law. As the facts and procedural history are familiar

to the parties, we do not recite them here except as necessary to explain our

disposition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review de novo a grant of summary judgment. Universal Health Servs.,

Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). Under Georgia law, the

duty to defend is broader than the duty to indemnify. Shafe v. Am. States Ins. Co.,

653 S.E.2d 870, 873 (Ga. Ct. App. 2007). The duty to defend arises upon the

allegation of statutory violations; the merit of those claims is irrelevant. Penn-

America Ins. Co. v. Disabled Am. Veterans Inc., 481 S.E.2d 850, 852 (Ga. Ct. App.

1997), aff’d 490 S.E.2d 372 (Ga. 1997). The district court granted summary

judgment in favor of Commonwealth because it found that IMG breached its

contractual duty to defend Commonwealth against the claims brought by James

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Samuel Gordon, Jr. (Gordon) under the CAN-SPAM Act. We agree. Clause 14(a)

of the Agreement provides expressly that IMG “shall indemnify, defend, . . . and

hold CMG and its officers, directors, shareholders, agents, affiliates and assigns . . .

harmless at all times . . . from and against and in respect of, any liability, claim,

deficiency, loss, damage, penalty or injury . . . arising from . . . any breach by IMG

. . . of the CAN-SPAM Act of 2003 . . .” IMG’s duty to defend thus arose

unambiguously when Gordon asserted the CAN-SPAM Act claims against

Commonwealth. Penn-America, 490 S.E.2d at 376. IMG urges us to read the

Agreement as triggering the duty to defend only in the case of actual breach. We

reject IMG’s interpretation because it would “render[] . . . meaningless” the

language in the contract providing that IMG “shall defend . . . any . . . claim.”

Landmark American Ins. Co. v. Khan, 705 S.E.2d 707, 710 (Ga Ct. App. 2011)

(quoting ALEA London Ltd. v. Woodcock, 649 S.E.2d 740 (Ga Ct. App. 2007))

Accordingly, we affirm the decision of the district court granting summary

judgment in favor of Commonwealth for the amount of $131,938.93 for the

attorneys’ fees and costs incurred in its defense against Gordon’s claims.

      AFFIRMED.
