One year after the Washington Supreme Court decision in Brown v. Old Navy LLC, litigation under Washington’s Commercial Electronic Mail Act has grown significantly. The court interpreted the 1998 statute to prohibit any false or misleading information in a commercial email subject line, not just deception about the nature of the message. This interpretation has led to a surge in class action filings.
Since the ruling, more than 100 lawsuits have been filed in Washington, often targeting retailers but also reaching hospitality, beauty, and other consumer brands. Plaintiffs frequently challenge promotional subject lines such as limited-time offers, free gifts, or discounted pricing claims. Statutory damages of $500 per email per recipient have created substantial exposure, with some claims reaching into the millions depending on distribution size.
Defendants have argued that these claims are preempted by the federal CAN-SPAM Act, but early court decisions have largely allowed cases to proceed. Key legal questions, including materiality and consumer reliance, remain unresolved.
In response, Washington enacted HB 2274, signed March 23, 2026, which will take effect June 11, 2026. The law reduces statutory penalties to $100 per violation and adds a scienter requirement for false or misleading claims.
While litigation continues and courts have not yet resolved key issues such as federal preemption and materiality, WR and its partners continue to monitor implementation and advocate for clarity in email marketing standards across Washington.
