Retailers warned as a new wave of email marketing lawsuits emerges

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What’s Going On — The New Wave of Email Marketing Lawsuits

  1. Washington State “CEMA” Ruling (Brown v. Old Navy)
    • On April 17, 2025, the Washington Supreme Court ruled in Brown v. Old Navy that the state’s Commercial Electronic Mail Act (CEMA) imposes a $500 penalty for each commercial email sent to Washington residents if the subject line contains false or misleading information. (beneschlaw.com)
    • Crucially, the court said that even if the email body is accurate or contains disclaimers, the subject line alone can trigger liability. (Bloomberg Law)
    • Because penalties are per email, exposure for large email blasts can be massive. (Mondaq)
  2. Class Actions Against Major Retailers
    • Lawsuits have already been filed against major retailers:
      • Macy’s: Plaintiffs allege it used misleading subject lines like “Ends Tonight!” even when the promotion extended. (Top Class Actions)
      • Discount Tire: Similar claims — “LAST DAY” offers that recur, allegedly creating false urgency. (Top Class Actions)
    • Legal experts warn this is just the beginning — more class actions are being filed in Washington and other states. (beneschlaw.com)
  3. California Anti-Spam Claims
    • In California, a new wave of class actions is being brought under the state’s Anti-Spam Law (Business & Professions Code § 17529.5). (Crowell & Moring – Home)
    • These suits allege:
    • The strict liability nature of these claims means a retailer might be held responsible even if they didn’t directly send the email, especially if they benefit from it. (MediaPost)
  4. Tracking Pixel Lawsuit Dismissed — But Risk Remains
    • A class action against PacSun (a retailer) for using email “tracking pixels” was recently dismissed by a U.S. federal court. (JD Supra)
    • The court held that under the Arizona TUCSRA (Telephone, Utility, and Communication Service Records Act), PacSun was not a “communication service provider,” and the data collected via pixels didn’t count as protected “communication service records.” (Mondaq)
    • That’s good news for marketers — but not all courts agree, and it doesn’t erase other risks (like deceptive subject lines).

Why Retailers Are Particularly Vulnerable Right Now

  • High Volume + Frequent Emails: Retailers send lots of promotional emails (sales, flash deals), which means they’re more exposed per-customer.
  • Urgency-Based Marketing: Many retailers use “limited-time,” “today only,” or “last chance” subject lines — this is exactly what plaintiffs are challenging under CEMA.
  • Multi-State Risk: With these laws, it’s not just federal regulation — states like Washington and California have their own anti-spam statutes, increasing legal complexity.
  • Vendor Risk: Even if the retailer uses a third-party email vendor, they may still be held responsible (especially in strict liability regimes like CA).
  • Reputational Damage: Beyond money, these lawsuits can damage trust with customers — especially if customers feel misled.

Strategic Implications & What Retailers Should Do

  1. Review & Revise Email Practices
    • Audit past and planned email campaigns, especially subject lines. Ensure they’re not misleading, overstating urgency, or misrepresenting deals.
    • Avoid language like “last day” or “expires tonight” unless it’s absolutely accurate and verifiable.
  2. Strengthen Compliance Programs
    • Implement or update anti-spam policies. Document consent (opt-ins) and maintain reliable opt-out mechanisms.
    • Monitor third-party vendors carefully: ensure they follow your compliance requirements, and require them to carry anti-spam liability clauses.
  3. Maintain Detailed Records
    • Track how you obtain email addresses, how users opt in/out, and how subject lines are determined and approved.
    • Keep logs of campaign sends, including version of subject lines, recipients, and timestamps — useful if legal risk arises.
  4. Legal Assessment
    • Consult counsel to assess exposure, especially if you have subscribers in high-risk jurisdictions (e.g., Washington, California).
    • Consider reformulating campaigns for riskier states: is it worthwhile to run a national blast with a “claim” subject line, or should it be tweaked regionally?
  5. Training & Governance
    • Train your marketing team on the legal risks of email marketing — especially subject-line liability.
    • Build a review process where legal or compliance signs off on potentially risky campaigns.
  6. Monitor Litigation Trends
    • Keep an eye on how cases like Brown v. Old Navy and the California anti-spam suits develop — early defense or settlement might be cheaper than letting exposure mount.
    • Follow regulatory and court updates, because these laws and their interpretation are still evolving.

Bottom Line

  • Yes — there is a real and growing risk for retailers using email marketing. The Washington CEMA ruling is a major red flag, and class actions in California are adding fuel.
  • The legal landscape is shifting: it’s not just about sending too many emails — how you phrase your subject lines matters a lot.
  • Retailers should act now: revise email marketing practices, boost compliance, and consult legal counsel — because the financial stakes (and reputational risk) could be very high.
  • Good question. Here are some case studies + commentary on the emerging wave of email‑marketing lawsuits targeting retailers now — and why it’s a big risk.

    Case Studies: Retailers Facing the New Email-Litigation Wave

    1. Old Navy / Gap — Washington “False Urgency” Claims
      • In Brown v. Old Navy, the Washington Supreme Court ruled that under the Commercial Electronic Mail Act (CEMA), it’s illegal to send commercial emails to Washington residents that contain false or misleading information in the subject line, even if the email body is accurate. (Justia Law)
      • Plaintiffs allege Old Navy used subject lines like “Today Only” or “3 Days Only” to create urgency, but then repeatedly extended the sale. (Justia Law)
      • The court clarified that even “minor” misstatements about timing violate CEMA; and retailers can face $500 per email / per recipient, regardless of whether the consumer was actually harmed. (beneschlaw.com)
      • According to legal analysis, there are now over 20 putative class actions in Washington building on this ruling. (beneschlaw.com)
    2. Nike — Washington CEMA Lawsuit
      • A class‑action complaint has been filed against Nike, Inc. in Washington state, alleging it sent misleading promotional emails in violation of CEMA. (ClassAction.org)
      • This is part of the broader trend: following the Old Navy decision, multiple major retailers are being sued for similar subject-line tactics. (beneschlaw.com)
    3. Vineyard Vines — False Sale Subject Lines
      • A suit has been filed against Vineyard Vines, claiming it advertises “limited-time” or “30% off + free shipping” in subject lines that misrepresent the deal. (Top Class Actions)
      • The complaint alleges that Vineyard Vines’ “free shipping” requires a high minimum purchase (e.g., $150), which isn’t clearly disclosed in the subject line — making the subject line misleading under CEMA. (Top Class Actions)
    4. California Anti‑Spam Lawsuits
      • In California, plaintiffs are also filing a wave of class actions under the state’s Anti‑Spam Law (Business & Professions Code § 17529.5). (MediaPost)
      • Key allegations include: sending emails without valid opt-in or opt-out functionality, misleading or falsified header information (sender name, domain), and subject lines designed to deceive. (Crowell & Moring – Home)
      • Some complaints seek $1,000 per email per recipient, which could result in very large class damages. (MediaPost)

    Commentary & Strategic Implications

    1. Massive Liability Risk
      • The Old Navy case changed the stakes dramatically. Because CEMA allows statutory damages of $500 per violation without requiring proof of actual harm, retailers could be exposed to multi‑billion (or even “trillions”) in theoretical liability if they don’t adjust their email practices. (Mondaq)
      • High email volume, combined with recurring marketing, multiplies risk: even a “small” misleading subject line, if repeated, can rack up huge exposure.
    2. Strict Interpretation of Subject Lines
      • The Washington Supreme Court rejected Old Navy’s defense that obvious promotional language (“today only”) is “just marketing puffery.” The court said any false or misleading statement, even about timing, violates CEMA. (Clark Hill)
      • Retailers must carefully audit subject lines — not just for clarity, but for truthfulness about deal duration, discount validity, and terms.
    3. Emerging Multi-State Legal Pressure
      • These lawsuits aren’t limited to Washington. Retailers doing business nationally must now think about state-specific anti-spam laws (like in California). (Crowell & Moring – Home)
      • Even third-party email vendors and affiliates may create exposure for brands: in California, plaintiffs allege liability even when the company didn’t send the email directly. (MediaPost)
    4. Defensive Strategies for Retailers
      • Audit email campaigns: Review past subject lines, especially around “limited-time”, “sale ends today”, and “final hours”.
      • Revise marketing processes: Introduce legal compliance checks for subject lines.
      • Document consent & opt-in: Make sure every recipient has a valid opt-in, and maintain clear, working opt-out links.
      • Train marketing teams: Marketers may need legal / compliance training on how to phrase urgency or promotional claims safely.
      • Monitor litigation: Companies should keep an eye on how these class actions develop — and possibly settle or adjust before exposure gets out of control.
    5. Reputational Risk
      • Beyond financial risk, these lawsuits could damage customer trust. If customers feel they were misled by “fake limited-time deals,” it could hurt brand credibility.
      • Retailers will need to communicate transparently about their email practices, possibly even change how they market “urgent” deals to regain or maintain trust.

    Bottom Line

    • There is a real and growing legal risk for retailers engaging in aggressive or misleading email marketing.
    • The Washington Supreme Court’s CEMA ruling in Brown v. Old Navy is a turning point — and lawsuits already target more retailers (Nike, Vineyard Vines, etc.).
    • Retailers need to act now: audit emails, tighten compliance, and rethink how they communicate urgency or “limited time” offers.

     

 

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