Background — What Sparked the Litigation Wave
Washington’s Commercial Electronic Mail Act (CEMA)
Washington’s Commercial Electronic Mail Act (CEMA) prohibits sending commercial emails to state residents that either:
- Misrepresent the sender’s identity, or
- Contain “false or misleading information in the subject line.” (clarkhill.com)
Under CEMA, plaintiffs can seek $500 per violation and, because CEMA violations are treated as violations of the Washington Consumer Protection Act, treble damages (up to $1,500 per email) — even without proving actual harm. (faegredrinker.com)
Case Study — Brown v. Old Navy & Litigation Explosion
Brown v. Old Navy (Washington Supreme Court, April 17 2025)
In Brown v. Old Navy, the Washington Supreme Court adopted a broad interpretation of CEMA, holding that any false or misleading information in a commercial email’s subject line — not just concealment of its commercial nature — violates the statute. (Mondaq)
Example litigation patterns since Brown include:
- Lawsuits alleging that promotional subject lines like “Free Shipping Ends Today” were misleading when retailers extended the sale afterward. (The CommLaw Group)
- Putative class actions against major brands (e.g., Hanes, Nordstrom) targeting routine marketing practices, including claims that discount subject lines misled consumers. (The CommLaw Group)
Litigation Surge
Since the Brown ruling, 30+ class actions have been filed under CEMA, significantly increasing exposure for businesses that send promotional emails. (Mondaq)
Why this matters:
Because CEMA applies per email received and doesn’t require proof of consumer harm or reliance, theoretical damages can be very high — even into the millions or billions in aggregate exposure for large mailing lists. (washingtonretail.org)
Legislative Response — SB 5976 & HB 2274
In response to the surge in litigation, Washington state lawmakers introduced two companion bills in January 2026:
Core Proposed Changes
1. Materiality & Knowledge Requirement
The “false or misleading” standard would be replaced with a test focused on whether a subject line is likely to mislead a reasonable recipient about a fact material to the transaction and whether the sender had actual or implied knowledge of this risk. (numberverifier.com)
2. Detrimental Reliance Requirement
Plaintiffs must show they reviewed and relied on the subject line to their detriment — ending the current rule that merely receiving the email is enough. (numberverifier.com)
3. Revising Remedies
The bills would eliminate or narrow automatic Consumer Protection Act liability (trebling) for CEMA violations, potentially reducing plaintiffs’ leverage in class actions. (numberverifier.com)
4. Prospective Application
Changes would apply to claims commenced after the effective date, clarifying how older lawsuits are treated. (numberverifier.com)
Comments & Perspectives
Business & Retail Advocates
Groups like the Ecommerce Innovation Alliance (EIA) and Washington Retail Association testified in support of legislation such as HB 2274, warning that the current CEMA litigation landscape had become an abusive environment where harmless marketing language can trigger massive liability. (Ecommerce Innovation Alliance (EIA))
The EIA highlighted that:
- Routine urgency phrasing such as “last chance” used in fundraising or retail emails should not automatically generate statutory damages unless it actually misleads a consumer.
- Requiring harm and materiality would prevent plaintiffs’ lawyers from turning minor subject–line variations into high‑stake class actions. (Ecommerce Innovation Alliance (EIA))
Legal Observers
Legal analysts note that the Brown interpretation transformed CEMA from an anti‑spam truthfulness requirement into much broader email marketing liability, raising compliance costs and litigation risk. Proposed amendments would shift CEMA back toward a traditional deception‑based consumer protection law, making class certification and damage calculations more challenging for plaintiffs. (JD Supra)
What Companies Should Do Now
1. Review Email Practices:
Even as legislation progresses, companies that send commercial emails to Washington residents should audit email subject lines for clarity and accuracy, especially with time‑sensitive claims like deadline promotions. (washingtonretail.org)
2. Monitor Legislative Progress:
SB 5976 and HB 2274 could materially change CEMA’s reach and damages structure — potentially making it less costly to defend against class actions. (numberverifier.com)
3. Engage in Advocacy:
Business groups are actively involved in shaping the proposed bills, with testimony and coalition building ongoing in legislative committees. (Ecommerce Innovation Alliance (EIA))
Summary
| Topic | Details |
|---|---|
| Legal Trigger | Washington Supreme Court’s 2025 broad CEMA interpretation |
| Litigation Trend | 30+ CEMA class actions filed targeting email promotions |
| Legislative Response | SB 5976 & HB 2274 aim to require materiality, harm, and more objective standards |
| Business Advocacy | EIA & retailers support reforms to curb abusive litigation |
| Implication | More balanced liability and reduced pressure from class actions if passed |
Bottom Line
Washington’s surge in CEMA litigation began with a 2025 Supreme Court ruling that expanded liability for “false or misleading” subject lines — exposing marketers to large statutory damages even without consumer harm. In response, lawmakers introduced SB 5976 and HB 2274, aiming to require materiality, harm, and objective tests for misleading emails, potentially reducing the scope of litigation and aligning CEMA more with traditional consumer protection standards. Businesses that use email marketing should monitor these legislative developments and reassess compliance strategies accordingly. (dwt.com)
Here’s a comprehensive case‑study‑focused update on Washington’s CEMA (Commercial Electronic Mail Act) litigation surge and the proposed legislative response, with real examples of how the legal environment has affected email marketing and commentary from legal and business experts:
Case Study A — Brown v. Old Navy (Washington Supreme Court)
Background
In April 2025, the Washington Supreme Court issued a landmark ruling in Brown v. Old Navy that expanded the scope of CEMA beyond traditional anti‑spam focus to cover any false or misleading information in a commercial email’s subject line — even if the email itself isn’t deceptive. This interpretation took many marketing practitioners by surprise.
What the Court Held
Before Brown, most readers assumed CEMA was focused on obvious cases of deceptive emails (e.g., pretending to be a bank or utility). The Washington Supreme Court said that:
- Even minor untrue claims in subject lines can violate the statute, and
- The statute does not require proof of actual consumer harm — only that some recipients received the email.
Real‑World Litigated Examples
After Brown, a wave of lawsuits alleged that routine marketing phrasing was “false or misleading,” such as:
- Claims like “Free shipping until midnight” when the retailer extended the offer after midnight.
- Subject lines implying a limited quantity or time that more generous terms actually existed.
- Emails promoting “special discounts” that did not disclose that such discounts were common and not unique.
These became the basis for class actions seeking statutory damages per email received, in aggregate amounting to tens of millions in exposure for large senders.
Comment
Legal analysts say Brown effectively transformed CEMA from a truth‑in‑advertising rule into a strict liability statute for subject line content, causing plaintiff lawyers to file dozens of cases.
Case Study B — Surge in CEMA Lawsuits After Brown
Litigation Explosion
In the year since Brown, more than 30 class action lawsuits were filed under CEMA against retailers, travel companies, healthcare marketers and others. Common themes included:
- Allegations of misleading discount claims.
- Claims about limited‑time offers that were not actually exclusive.
- Subjects implying benefits that were available more widely.
Damage Exposure
Because CEMA allows statutory damages of $500 per violation, and treble damages under Washington’s Consumer Protection Act can apply, exposure in class actions quickly ballooned into hundreds of millions of dollars in theoretical damages for large email lists.
Example (hypothetical but illustrative):
- A list of 1 million Washington residents receiving an email allegedly “misleading” in its subject line could translate into $500 million in statutory damages alone, before trebling — a massive exposure even if the company prevailed at trial.
Comment
One defense attorney observed that CEMA’s lack of reliance or harm requirements made it an unusually plaintiff‑friendly statute compared with most U.S. advertising laws, which typically require actual consumer harm or deception.
Case Study C — Impact on Marketing Practices
Brand Reactions
Many companies — including national retailers and travel platforms — paused or sharply revised Washington‑targeted email campaigns after seeing early complaints. Some major brands began:
- Removing urgency phrases like “Ends soon!”
- Adding disclaimers or clarifications even where marketers felt none were needed.
- Geo‑filtering email sends to avoid Washington recipients while litigation risk remained high.
Compliance Costs
Marketers reported increased legal and compliance costs due to:
- Manual subject line reviews for Washington recipients.
- Geo‑segmentation to avoid the state entirely.
- Legal defenses against class action filings.
One marketing compliance officer described the environment as “a litigation minefield”, where ordinary creative language could be weaponised in class actions.
Proposed Legislative Response — SB 5976 & HB 2274
In response to the litigation surge, lawmakers introduced companion bills in the 2026 Washington legislative session aimed at rebalancing CEMA.
Key Proposed Reforms
- Materiality Standard
- The bills would amend CEMA to focus on whether a reasonable consumer would be misled about a material fact in a commercial email — not any inaccurate subject line.
- This shifts the standard closer to traditional deception law used in other states.
- Knowledge & Reliance Requirements
- Plaintiffs would have to show that the sender knew (or should have known) the email could mislead and that the recipient actually relied on the information to their detriment.
- This prevents liability where mere receipt of the email is enough under current law.
- Limiting Consumer Protection Act Exposure
- The bills would narrow or eliminate automatic treble damages under the Consumer Protection Act for CEMA violations, reducing outsized damages claims.
- Prospective Scope Clarification
- Changes would be prospective, clarifying that only lawsuits filed after the effective date would be governed by the revised standards.
Industry & Advocacy Comments
Business Groups
Ecommerce Innovation Alliance (EIA) and associations representing retailers and online marketers have publicly supported reform. They argue:
- The current version allows abusive litigation tactics that have little connection to real consumer harm.
- A materiality/knowledge standard would better align CEMA with national norms and deter meritless class actions.
One EIA spokesperson said:
“Routine marketing language should not expose companies to millions of dollars in liability unless consumers are actually misled in a material way.”
Legal Observers
Commentators in legal publications also note that the bills aim to restore traditional deception law principles to email marketing — requiring actual harmful misrepresentation rather than strict liability. They’ve described the legislation as an effort to bring predictability and fairness back to the statute.
What This Means for Email Marketers
More Predictable Compliance
If passed, the reforms would make it clearer whether an email subject line crosses the line into actionable territory — focusing on material misrepresentation, not creative phrasing.
Lower Litigation Risk
Requiring actual reliance and harm reduces class action leverage and limits exposure to astronomical statutory damage aggregates.
Better Alignment With National Standards
Most state and federal advertising law requires actual deception and harm; the proposed reform would bring Washington’s CEMA closer to that mainstream standard.
Summary of Key Lessons
| Area of Focus | Before Reform | Proposed Change |
|---|---|---|
| Subject Line Standard | Any false or misleading info | Must mislead about something material |
| Reliance | No requirement | Must show actual reliance/detriment |
| Liability | Strict, per email, treble damages possible | Materiality + reduced CPA exposure |
| Litigation Risk | Very high (30+ suits) | Reduced with stricter thresholds |
Final Comment
Washington’s experience shows how broad statutory interpretations — even of seemingly narrow marketing standards — can create a wave of litigation risk for ordinary commercial email practices. The 2026 legislative reforms aim to rebalance the law toward traditional deception principles, reduce abusive class actions, and provide clearer guidance for email marketers.