By Stephanie A. Sheridan, Meegan Brooks, and Kennedy Dicksonn
November 13, 2025
In the six months since the Washington Supreme Court issued Brown v. Old Navy, the state’s Commercial Electronic Mail Act (“CEMA”), RCW § 19.190.020(1)(b), has quickly emerged as what may be the largest threat to online retail in years.
More than thirty CEMA class-action lawsuits have been filed in Washington since Brown. Most of these suits are driven by a growing list of out-of-state lawyers, some of whom are even seeking admission to the State Bar to invest further in these cases. These new class actions attack a broad range of promotional email practices, including: emails that promote “limited time” deals that are later extended, offer “free gifts” that are contingent on undisclosed purchase requirements, or even trick customers into thinking they will get a better deal on their purchase through commonplace “%-off” language. This litigation trend extends beyond Washington: plaintiffs’ attorneys in Maryland and California are already mobilizing under parallel laws, as at least sixteen other states have similar laws.
Legislative Background
Washington enacted CEMA in 1998, during the infancy of commercial internet use. At that time, consumers often paid per-minute connection fees, and each unwanted or misleading email imposed tangible costs in time and money. The legislature’s purpose was to reduce these burdens by prohibiting deceptive or disguised commercial communications.
Under RCW § 19.190.020(1), it is unlawful to send a commercial email to a Washington resident that either: (1) conceals or falsifies the sender’s identity, or (2) contains false or misleading information in the subject line. For retailers who send emails—or even those that assist with their transmission—from a computer located in Washington, every single email sent nationwide is a potential violation.
CEMA violations automatically constitute per se violations of the Washington Consumer Protection Act (“WCPA”). Beyond the actual damages that WCPA authorizes, CEMA violations trigger statutory penalties of $500 per violation. Plaintiffs argue that each individual email constitutes a separate violation, meaning a single consumer who receives one unlawful message per week for just one year could claim $26,000 in statutory penalties. Scaled across a retailer’s subscriber base and the four-year limitations period, the potential exposure can easily reach trillions of dollars.
Critically, unlike the WCPA, CEMA does not explicitly require proof of actual injury. The Brown majority endorsed this interpretation, declaring that the statutory “injury” lies in the receipt of a violative email itself. Thus, Plaintiffs contend that even if they did not notice an allegedly violative subject line, the mere act of receiving it entitles them (and the putative class) to statutory damages.
The Brown v. Old Navy Decision
In Brown v. Old Navy, the plaintiffs challenged a series of promotional emails that conveyed a sense of urgency—e.g., suggesting that a sale would “end today” or “expire soon”—even though the retailer intended to extend the promotion beyond the advertised end date. Old Navy argued that such language was not the type of deception the Washington Legislature intended to address with CEMA. Specifically, it contended that CEMA targets subject lines that conceal an email’s commercial nature; therefore, emails that were clearly an ad containing subject lines that accurately previewed the body of the email did not violate the statute.
On April 17, 2025, a 5–4 majority of the Washington Supreme Court rejected Old Navy’s reading of the statute and held that CEMA’s plain text is unambiguous and prohibits any false or misleading statement in a subject line, regardless of whether the misrepresentation obscures the email’s commercial nature. The majority reasoned that it could not consider the intent of the statute—which Old Navy argued supported its narrower reading—given that the statute’s plain language was clear on its face. The majority explained that requiring truthfulness and precision in subject lines advances the legislature’s anti-spam objective because the header and subject line are the first—and often only—information consumers view when deciding whether to open or delete an email.
The Court did, however, identify certain limits to CEMA: subjective promotional language or “mere puffery” does not give rise to liability. For example, a subject line that reads “Best Sale of the Year!” would be nonactionable hyperbole. In contrast, one that reads “30% Off—Today Only!” could violate CEMA if the retailer intended to extend the offer beyond the stated day.
Four justices dissented, cautioning that the majority’s textualist approach disregarded CEMA’s historical context. They argued that the statute was not intended to supplant false-advertising law, but instead, merely combat emails that disguise their commercial nature. By expanding CEMA’s scope to cover ordinary promotional phrasing, the dissent warned that the Court transformed a narrow anti-spam measure into a sweeping truth-in-advertising regime.
The Litigation Wave
In the months since Brown, more than thirty lawsuits have been filed under CEMA, with at least fifteen plaintiffs’ firms actively engaged and others publicly recruiting claimants via social media. Most complaints mirror Brown’s factual allegations, challenging “limited-time” or “percent-off” promotions. Others stretch the allegations further, alleging that perpetual discounts or “buy one, get one free” offers are inherently deceptive because the retailer almost always lists the underlying items at a discount.
Several retailers have already filed motions to dismiss, though decisions are not expected until next spring or summer. Retailers are raising the following defenses to CEMA suits:
Federal Preemption Under the CAN-SPAM Act: By far the most common argument thus far has been that this new wave of claims is preempted under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act), which broadly preempts state laws that “expressly regulate the use of electronic mail to send commercial messages,” except where those laws prohibit “falsity or deception” (15 U.S.C. § 7707(b)(1)). Defendants argue that CEMA, as interpreted in Brown, extends beyond this narrow exception by penalizing any technically misleading statement, even absent deceit or reliance by the plaintiff. The Ninth Circuit’s decision in Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2009), can be read to support this position: Virtumundo held that the CAN-SPAM exception applies only to claims grounded in “traditionally tortious or wrongful conduct.” Because the Virtumundo plaintiff alleged no such conduct, the Ninth Circuit deemed the claim preempted.
Dormant Commerce Clause: A handful of retailers have also argued that CEMA impermissibly regulates interstate commerce. Because email marketing campaigns operate nationally, a single state’s attempt to impose liability based on its residents’ receipt of messages could unduly burden out-of-state businesses, violating the Dormant Commerce Clause.
Arbitration and Terms of Service: Additionally, several defendants have moved to compel arbitration, arguing that consumers who made online purchases agreed to terms of service mandating arbitration of all disputes—including statutory email claims. If successful, these motions could shift claims from class litigation to individualized proceedings (though with the risk of mass arbitration).
Next Steps
CEMA’s combination of broad liability, statutory damages, and lack of an injury requirement transforms every marketing email into a potential lawsuit. Retailers should immediately review their email marketing practices, with a specific eye toward time-sensitive language. Phrases implying urgency, such as “today only,” “last chance,” and “ends soon,” are exceptionally high risk. Additionally, retailers should consider updating their arbitration provisions and user-agreement disclosures.
