It always makes me chuckle when a defendant argues its conduct caused harm in order to stay in federal court.
That is precisely what retailer Tommy Bahama just did through its big law counsel– and it still lost.
In Haley v. Tommy Bahama Group, 2026 WL 2797982 (W.D. Wash. Sept. 18, 2026) a plaintiff filed sued against TBG alleging it sent emails with deceptive headings suggesting false urgency in connection with the sale of its products.
TBG removed the case to federal court but the federal judge overseeing the case wanted none of it. She asked the parties to prove the case gave rise to an Article III Case or Controversy– and when neither could she kicked the case back down to state court.
Breaking this down a bit– a federal court may only hear live cases or controversies under Article III of the U.S. Constitution. The U.S. Supreme Court has determined such Cs or Cs only exist where a statutory violation caused real life “concrete” harm.
This rule has massive ramifications in TCPA suits– calls and texts rarely cause such harm no matter what the newspapers say these days– but the issue in Haley is whether misleading subject lines may case such harm.
The Washington State CEMA and CPA make it illegal to send misleading emails, but was the Plaintiff actually harmed by Tommy Bahama’s allegedly false claims?
Ironically both Plaintiff AND Tommy Bahama argued that consumers actually do suffer harm from such emails.
What?
Yep.
TBG actually argued the email gave rise to Article III standing because, if it was false, it would have caused concrete harm.
Again this seems an absurd argument for a defendant to make–and it sort of is– but it just goes to show how badly retailers want to be in federal court on these claims and not in Washington state.
In the end, however, the court disagreed with BOTH parties and found the receipt of the email had not been shown to have actually caused any harm at all. It kicked the case back to state court.
Interesting, no?
I’ll probably discuss this one a bit at the ANA Masters of Advertising Law Event in Huntington Beach this November. But in the meantime if you are an advertiser or brand with questions about Washington’s CEMA don’t forget your humble Czar is an attorney duly licensed in the state (State Bar No. 45747) so give Troutman Amin, LLP a buzz and we can discuss!
And in the meantime be sure to catch Episode 50 of Deserve to Win with Gayla Huber!!! (Ep. 51 drops later today!)
Chat soon!
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