Washington Moves to Address the CEMA Lawsuit Explosion

​Washington State lawmakers have recently introduced legislation to fundamentally reform the state's Commercial Electronic Mail Act (CEMA) in response to an unprecedented surge of class action litigation targeting routine retail email marketing practices.

The legislative push follows the Washington Supreme Court's controversial 5-4 decision in Brown v. Old Navy, LLC, which dramatically expanded CEMA's scope to prohibit any false or misleading statement in commercial email subject lines—not merely information concealing an email's commercial nature. Under the Court's interpretation, retailers face $500 in statutory damages per email (treble to $1,500 under the Consumer Protection Act) without any requirement that recipients suffered actual harm, creating what business advocates characterize as a plaintiff's attorney windfall and what consumer advocates defend as necessary deterrence against deceptive marketing.

CEMA’s Original Purpose

Washington enacted CEMA in 1998 to address a specific problem plaguing internet users in the dial-up era: commercial spam emails disguised as personal messages. When consumers paid for internet access by the minute, deceptive subject lines like "Hi" or "We need to talk" caused recipients to waste time and money downloading what turned out to be commercial solicitations. The statute's two-pronged prohibition targeted emails that either (1) misrepresented the sender's identity or transmission path, or (2) "contain[ed] false or misleading information in the subject line".

For more than two decades, CEMA functioned primarily as an anti-spam measure. Federal courts interpreting the statute's subject-line provision consistently held that it prohibited only false or misleading information about the commercial nature or origin of the email—not any inaccurate promotional claims. This narrower reading aligned CEMA with the federal CAN-SPAM Act's approach and limited liability to emails that deceived recipients about whether they were viewing an advertisement.

The Old Navy CEMA Litigation

In 2023, Washington residents Roxann Brown and Michelle Smith filed a class action lawsuit in King County Superior Court alleging that Old Navy violated CEMA by sending promotional emails with subject lines containing false urgency claims about offers that were about to expire but were in fact ongoing.

The plaintiffs argued these subject lines created artificial urgency to manipulate consumer behavior and violated CEMA's prohibition on "false or misleading information". Old Navy moved to dismiss, contending that CEMA—like CAN-SPAM—prohibited only subject lines that concealed an email's commercial nature, not promotional language that accurately previewed the email body's advertising content.

On April 17, 2025, the Washington Supreme Court ruled 5-4 in favor of the plaintiffs, holding that CEMA's plain language unambiguously prohibits any false or misleading information in commercial email subject lines. After this ruling, subjective, unverifiable claims in emails such as “Best Deals of the Year” remained permissible, but objective claims about sale duration ("Today Only") or availability ("Almost Gone") can trigger CEMA liability if proven false or misleading. Naturally, the Brown v. Old Navy ruling led to an unprecedented surge in CEMA litigation.

The CEMA Litigation Explosion

Within eight months of the Brown decision, plaintiffs filed more than 60 class action lawsuits in Washington courts targeting major retailers and consumer brands. At least 15 plaintiffs' law firms actively prosecute these cases, with some attorneys seeking admission to the Washington State Bar specifically to capitalize on CEMA claims. Plaintiff recruitment advertisements have proliferated on social media platforms, and major brands have fallen victim to the surge, including:

• Nike, Inc.: Sued in May 2025 for subject lines like "2 days only: Save up to 50%" when sales ran longer than advertised.
• Macy's: Sued in September 2025 for subject lines stating "Ends tonight!" and "Last chance!" when identical or better sales reappeared days later.
• Discount Tire: Sued in September 2025 for "LAST DAY to save" messages that were resent with identical offers within days

The Washington Retailers Association reports that CEMA cases are "extremely difficult to dismiss early, forcing costly, fact-intensive litigation even when companies believe they complied with the law." This grim reality—combined with the absence of any requirement to prove actual consumer harm—creates enormous settlement pressure on deep-pocketed defendants facing potential per-email liability multiplied across years of email campaigns and thousands of Washington recipients.

To better understand the true underpinnings of the CEMA litigation gold rush, consider a hypothetical promotional campaign involving an email sent to 100,000 Washington recipients. After factoring in CEMA’s $500 per email statutory damages, together with treble damages, a four-year statute of limitations, and no requirement to prove harm, reliance, or even that recipients opened the email, the low end of potential exposure is $50 million, which can be trebled to $150 million. And this is for a single email campaign. For retailers sending weekly promotional emails over four years, the theoretical exposure can reach billions of dollars.

The Legislative Response: SB 5976 and HB 2274

Responding to retailer outcry and concerns about Washington's business climate, in January of 2026 state legislators introduced identical companion bills, Senate Bill 5976 and House Bill 2274. The proposed legislation fundamentally restructures CEMA through four key amendments that shift the statute from a strict liability anti-spam law to a traditional fraud-based consumer protection framework:

1. Materiality and Knowledge Requirements (RCW 19.190.020): This amendment replaces the term “contains false or misleading information in the subject line” with a multi-element test requiring the sender to have actual or reasonably implied knowledge that the subject line would likely mislead a reasonable recipient about a fact material to the relevant transaction, and that the subject line was in fact material to the recipient in completing the transaction.

2. Detrimental Reliance Requirement (RCW 19.190.040): Under this amendment plaintiffs must prove they personally viewed the subject line and changed their behavior to their detriment based on it—ending the current rule that merely receiving the email constitutes injury.

3. Eliminates Per Se CPA Violations (RCW 19.190.100): This amendment removes CEMA subject-line violations from automatically triggering Consumer Protection Act liability, which currently allows treble damages (up to $1,500 per email) without additional proof, restricting recovery to CEMA’s $500 statutory damages.

4. Retroactive Application: The legislation would apply to “all causes of action commenced on or after the effective date,” regardless of when the underlying emails were sent—addressing the 60+ pending lawsuits filed since the April 2025 Brown decision.

These amendments convert CEMA from a no-fault statutory damages regime into a traditional deception claim requiring proof of intent, materiality, actual reliance, and harm—making class certification significantly more difficult and eliminating the litigation economics driving the current lawsuit explosion.

Legislative Prospects

As of January 27, 2026, HB 2274 has advanced to executive session in the House Consumer Protection & Business Committee, while SB 5976 awaits its initial public hearing on January 29. The bills enjoy strong support from the business community but face opposition from trial lawyers and consumer advocates. A committee hearing drew substantial testimony from retailers describing the litigation's impact on their operations. However, consumer protection organizations are likely to mobilize opposition as the bills advance, framing them as anti-consumer giveaways to big business.

For Retailers and Email Marketers

Regardless of whether SB 5976/HB 2274 become law, the Brown decision and the litigation it spawned fundamentally alter email marketing compliance obligations for businesses communicating with Washington residents. To avoid trouble, email marketers should implement the following risk mitigation strategies:

Eliminate false urgency language: Phrases like "Today Only," "Ends Tonight," "Final Hours," and "Last Chance" carry high litigation risk unless the representation is objectively accurate and the sender can prove the sale truly ends as stated.

Avoid conditional offers without full disclosure: Subject lines advertising "Free Gift" or "Free Shipping" must either disclose conditions in the subject line itself or ensure the offer is genuinely unconditional.

Verify discount authenticity: "50% Off" and similar percentage-based claims must be based on genuine, documented regular prices rather than inflated baselines.

Document offer terms and timing: Maintain contemporaneous records demonstrating that promotional timelines stated in subject lines matched actual offer durations, to defend against allegations that "extensions" were always planned.

Implement subject-line review procedures: Establish pre-send approval processes requiring legal or compliance review of factual claims in email subject lines.

For legal compliance professionals, the immediate imperative is clear: email subject lines directed to Washington residents must be treated as legally binding factual representations subject to the same accuracy standards as advertising copy, product labeling, and written warranties. Simply put, unless and until CEMA is muzzled, casual or hyperbolic promotional language in email marketing to Washingtonians is not worth the risk.