A Washington State Supreme Court decision last spring that construed that state’s Commercial Electronic Mail Act (“CEMA”) to broadly prohibit any misleading information in retailers’ email subject lines has opened the floodgates to similar state spam claims. In the past six months, there have been eight putative class action complaints alleging that retailers’ misleading email subject lines violate CEMA, and more alleging similar claims under other state spam laws. Businesses face heightened exposure to liability for marketing practices that seek to convey a sense of urgency with respect to promotional timelines. This spate of litigation raises important questions about the scope and enforceability of state anti-spam laws, including whether such claims are preempted under the federal Controlling the Assault of Non–Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”).
Washington’s Commercial Electronic Mail Act
CEMA prohibits sending commercial electronic mail messages to Washington residents that contain “false or misleading information in the subject line.” RCW 19.190.020(1)(b). In April 2025, the Washington State Supreme Court clarified the scope of this provision in Brown v. Old Navy LLC, 4 Wash.3d 580 (2025). Consumers filed a putative class action lawsuit in federal district court alleging Old Navy violated CEMA by sending promotional emails with subject lines indicating that a promotion would end on a specific date, when in fact the promotion continued beyond that date. The district court certified to the state supreme court the question whether CEMA’s prohibition against “false or misleading information in the subject line” encompassed subject lines containing any false or misleading information, or whether the prohibition was limited to subject lines containing false or misleading information about the commercial nature of the email message. The Washington Supreme Court held that the statute applies to any false or misleading information in the subject line, regardless of whether it misleads consumers about the commercial nature of the message. Id. at 583. Following this decision, defendants filed a motion to dismiss arguing that plaintiffs’ claims are preempted. The issue is unlikely to be addressed by the district court because defendants subsequently filed a notice to withdraw their pending motion to dismiss and moved to compel arbitration.
Consumer Class Actions under CEMA
Following Old Navy, multiple plaintiffs have pursued similar CEMA claims based on allegedly misleading email subject lines regarding promotional offers. Last month, plaintiffs filed separate class action lawsuits against Macy’s and Discount Tire, alleging that defendants sent marketing emails containing misleading subject lines regarding the duration or urgency of promotional offers. In the complaint against Macy’s...
