Lawsuit Claims Hanes Boosted Sales Using Misleading ‘Last Day’ Promotional Emails

Author:

 

 What’s going on

  • Attorneys working with the site ClassAction.org are investigating whether Hanes sent marketing emails to Washington state residents with subject lines that may falsely indicate an urgent “limited time” promotion, and then extended the promotion. (Class Action)
  • The emails in question allegedly use subject lines such as:
  • The concern: If the “limited‑time” or “today only” nature of the offer is misleading—i.e., the sale is routinely extended or the urgency is false—then subject lines might violate state anti‐spam and consumer protection laws (in Washington this is the Commercial Electronic Mail Act, or CEMA). (Class Action)
  • Under CEMA, Washington residents may seek up to $500 per violation when a commercial email includes “false or misleading information” in the subject line. (Manatt)
  • The investigation is in a “pre‑class action” stage—i.e., attorneys are gathering evidence to determine whether a full class action suit should be filed. (Class Action)

 Why this matters (legal & business risk)

  • The legal precedent: A case called Brown v. Old Navy (Washington Supreme Court) found that the state’s law prohibits any “false or misleading information” in a commercial email’s subject line, including misrepresentations of a promotion’s duration. (Manatt)
  • For brands and marketers, this means that “limited‑time offer” subject lines and “you must act now” promotions can carry legal risk if they are not truthful or if the urgency is artificial.
  • For Hanes, if the investigation leads to a lawsuit and is successful, the company could face: monetary damages, required changes to marketing practices, reputational harm, and possibly high aggregate liability (depending on volume of emails).
  • From a business ethics and consumer‐trust perspective, routinely extending “last day” offers can erode brand credibility and may trigger regulatory scrutiny.

 What we do know and what is alleged

What we know:

  • There is an investigation flagged by ClassAction.org into Hanes’s email marketing practices in Washington. (Class Action)
  • The specific concern: Urgency claims (“limited time”, “last day”, “extended”) that may not reflect the true terms of the promotion. (Class Action)
  • Legal framework: Washington’s CEMA prohibits misleading subject lines. (Manatt)

What is alleged (but not yet proven/final):

  • That Hanes sent emails to consumers making them believe a sale was expiring, when in fact the deal was extended. (That is the crux of the allegation)
  • That the practice may have generated additional or accelerated purchases—i.e., the promotional urgency was used to boost sales.
  • That consumers may be entitled to damages (up to $500 per email) under Washington law.

 Key questions / missing pieces

  • It is not yet public whether a formal class action complaint has been filed (beyond the investigation stage) against Hanes.
  • There is no publicly available data (so far) on how many emails are involved, or how many consumers might participate.
  • The details about whether the promotions were genuinely time‑limited or routinely extended are not fully confirmed publicly.
  • It’s unclear whether Hanes will contest the investigation, or what their response will be.

 Implications for marketers & businesses

  • If you’re sending promotional emails with urgency language (e.g., “Last day!”, “Today only!”, “Sale ends at midnight!”), ensure you can back up the claim: e.g., the offer truly ends at that time, or the extension is clearly disclosed.
  • Be aware of local laws: Washington’s anti‑spam law (CEMA) sets out liability for misleading subject lines. Other states may have analogous laws or regulations.
  • Track your promotional calendars: If you frequently extend offers but continue emailing “last day” claims, you may create a pattern that regulators or plaintiffs could point to as misleading.
  • Consider audit and compliance review of your email subject lines and marketing language, especially if you operate in multiple states or countries.
  • From a consumer‐relationship standpoint: recurrent “false urgency” can damage trust and increase complaints or unsubscribes.

Here are case‑studies and comments surrounding the lawsuit (and investigation) against HanesBrands, Inc. (Hanes) for allegedly using misleading “last day” or “limited time” promotional emails.

 Case Study: HanesBrands & “Last Day” Emails

Background

  • Attorneys are investigating whether Hanes’s marketing emails to Washington state residents violated the Washington Commercial Electronic Mail Act (CEMA) by sending subject lines that falsely implied urgency or a deadline (e.g., “Today only!”, “Last chance!”, “Extended one day!”) when the promotions were reportedly extended. (Class Action)
  • Specific examples of alleged subject lines include:
  • The legal theory: Under CEMA, a commercial email to a Washington resident that “contains false or misleading information in the subject line” may trigger statutory liability of up to US$500 per message regardless of whether actual harm occurred. (beneschlaw.com)
  • The claim against Hanes (ref. Law360 article) is that the “false ‘last‑day’ email ads” boosted sales by creating a sense of urgency that was not accurate. (Law360)

Why This Matters

  • Because CEMA treats each individual email as a separate violation, the potential liability can multiply very quickly if many such emails were sent. For example: one email × thousands of recipients = potentially millions in exposure. (beneschlaw.com)
  • The broader legal environment: The Brown v. Old Navy, LLC decision by the Washington Supreme Court clarified that “[a] subject line does not need to deceive consumers about the advertising purpose or commercial nature of the email; rather any false or misleading information in the subject line can trigger liability.” (beneschlaw.com)

What’s Alleged in the Hanes Case

  • Hanes allegedly used urgency subject lines (e.g., “Last chance”, “Ends today”) but then extended the promotion or sent “extended” offers, undermining the claimed deadline.
  • The investigation is pre‑class‑action stage: attorneys are collecting evidence, likely seeking emails and proof of extension patterns. (Ref: ClassAction.org alert) (Class Action)
  • If a class action is filed and succeeds, Hanes may have to pay statutory damages for each violative email and/or change its marketing practices.

 Additional Context & Comparative Commentary

  • Although this case is about Hanes, similar cases are arising — e.g., Skechers has been sued for subject lines suggesting “Ends Tonight” but extending the sale. (Klein Moynihan Turco)
  • Legal commentators advise that retailers must audit subject lines for accuracy of claims about timing, availability, discounts, etc., especially when emailing Washington residents (or residents of states with similar laws). (Bloomberg Law)

 Comments from Legal/Marketing Experts

  • From a compliance advisory:

    “The Washington Supreme Court’s decision in Brown v. Old Navy established the broadest interpretation of subject‑line truthfulness requirements in the nation… by rejecting federal precedent and embracing a comprehensive approach to subject‑line accuracy.” (beneschlaw.com)

  • On the risk for marketers:

    “Even if Old Navy’s pre‑emption defence succeeds, plaintiffs … may continue to assert claims under similar laws, potentially wreaking havoc on prevalent digital marketing practices.” (Bloomberg Law)

  • From a blog advising marketers:

    “Because of the significant financial stakes, retailers that ignore Brown’s risks do so at their own peril.” (beneschlaw.com)

 Key Take‑aways for Business & Marketers

  • Urgency claims must be real: If you say “Ends today,” you must ensure the sale genuinely ends (or clearly disclose if it’s extended).
  • Avoid “false last day” patterns: Repeatedly extending a sale after sending “last day” subject lines may create a pattern of “false urgency” and expose you to liability.
  • Subject lines matter legally: Under CEMA, it’s not just the body of the email – the subject line alone can trigger liability if misleading.
  • Large exposure: Because the statute sets fixed per‑email penalties, one flawed campaign can turn into a large class‑action exposure.
  • Audit your email campaigns: Especially if you target residents in Washington (or other states with similar laws).
  • Consider segmentation/state controls: If you discover risk in a particular state, you might exclude or treat residents differently from a compliance perspective.

 

Categories: Digital Marketing, News