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Marketers are facing a new kind of email litigation risk, this time focused squarely on subject lines. Plaintiffs in Washington are invoking the state's Commercial Electronic Mail Act ("CEMA"), RCW 19.190.020, which prohibits emails that "[c]ontain false or misleading information in the subject line" and carries statutory penalties of $500 to $1,500 per message. Because the federal email law, Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM"), 15 U.S.C. §§ 7701-13, doesn't provide a private right of action, CEMA has quickly become a favorite tool for plaintiffs' lawyers and an emerging template for potential copycat suits in other states, including California, which has a similar state law.
The Case That Started it All
This new wave of litigation began with Brown v. Old Navy LLC, Case No. 102,592-1 (Wash. Sup. Ct. Apr. 17, 2025). There, plaintiffs alleged that Old Navy inundated consumers with hundreds of emails falsely advertising sales as time limited (for instance, an email announcing a sale for "today only", that was then extended beyond that day). The Supreme Court of Washington agreed, finding the conduct actionable under CEMA, and held that CEMA prohibits the use of any false or misleading information in the subject line of a commercial email. While the court clarified that statements constituting "mere puffery"—including hyperbole, opinions, and subjective statements—are not prohibited under CEMA, its broad interpretation of the statute has led to a wave of new lawsuits.
Since Brown, at least 20 new putative class actions have been filed in Washington courts (many now in federal court), collectively seeking tens of millions of dollars in statutory damages.
Recent complaints span a wide range of subject-line practices, including:
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False time-limited sales. Plaintiffs allege that brands used subject lines like "Ends Tonight!" or "Today Only!" but later extended the same promotions, creating false urgency. Defendants include BYLT, Southwest Airlines, Skechers, V Shred, Vineyard Vines, Discount Tire, Macy's and more.
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Inflated discounts. Plaintiffs allege that percentage-off claims were based on inflated list prices, rendering subject-line savings misleading. Defendants include Catalyst Brands and JCPenney.
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"Free" offers that weren't free. Other suits challenge subject lines promising free products where higher-priced purchases were required, including in the case against Catalyst Brands.
Defendants Pushing Back
Numerous pending motions to dismiss illuminate Defendants arguments in response to claims that they violated CEMA.
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Dormant Commerce Clause.
Defendants in these lawsuits argue that CEMA is unconstitutional because it violates the Dormant Commerce Clause in two ways.
First, defendants argue that CEMA regulates commerce (i.e., email campaigns) beyond the state of Washington, and that a state statute that directly affects transactions occurring wholly outside that state is invalid, since states cannot regulate extra-territorial conduct just because it may affect a resident within that state.
Second, defendants argue that CEMA violates the dormant Commerce Clause by burdening interstate commerce excessively in relation to the local benefits.Essentially, they argue that CEMA is unconstitutional because it subjects nationwide retailers to Washington's specific regulatory scheme, thus creating a patchwork of inconsistent regulatory schemes for businesses that operate across the country.
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Federal Preemption.
Many defendants also assert that CEMA is preempted by CAN-SPAM. Defendants argue that Congress specifically enacted CAN-SPAM to be the "federal regulatory scheme" for this subject matter (commercial emails), and that CAN-SPAM includes an express preemption provision, stating that the law supersedes any state law regulating commercial email.
Unfortunately for defendants, CAN-SPAM's preemption provision contains an exception for state laws that forbid "falsity or deception", which some courts have interpreted to mean traditional tort theories. However, defendants in these latest CEMA argue that CAN-SPAM's exception is narrow, and does not apply to these cases, which are not based in traditional tort theories.
Until courts resolve these questions, this litigation trend underscores how a single deceptive email subject line can now carry significant exposure, and how state-level consumer protection laws like CEMA can become powerful tools for plaintiffs.
What About California?
Like Washington, California has a law that prohibits deceptive commercial emails—Business & Professions Code § 17529.5. As in Washington, we are seeing a recent flurry of lawsuits filed against retailers alleging violations of this statute in relation to retailers' email marketing. These litigations are in earlier stages than the CEMA lawsuits, but these early lawsuits signal an oncoming wave of litigation that we are monitoring closely.
What Companies Should Do Now
Given this rapidly-growing litigation trend, companies should take immediate steps to proactively assess their email programs to reduce CEMA-style risk. Steps include reviewing and updating marketing policies and monitoring any third-party vendors that conduct marketing on your behalf. A few thoughtful changes to subject line strategy, along with clear internal guidance for marketing teams, can help avoid becoming the next headline case in this fast-developing area.
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.
