Jessica A. Sheridan

Law360 (November 13, 2025, 5:56 PM EST) -- Stephanie Sheridan Meegan Brooks Kennedy Dickson More than six months have passed since the Washington state Supreme Court held in Brown v. Old Navy that the Washington Commercial Electronic Mail Act[1] "prohibits the use of any false or misleading information in the subject line of a commercial e-mail."[2] Since then, more than 18 plaintiffs firms have filed more than 30 new lawsuits in Washington[3] and nine in Maryland under a CEMA analog,[4] with dozens of similar demand letters in California and even some mass arbitrations nationwide. With $500 per violation available under both CEMA and its Maryland analog — which the plaintiffs argue means per email and per recipient — retailers cannot afford to ignore this litigation. Currently Pending Litigation Not surprisingly, most of the new lawsuits follow the fact pattern of Brown, which involved subject lines discussing time-limited promotions — e.g., "today only" — that were subsequently extended beyond the specified time limit. The plaintiffs contend that these subject lines are deceptive because they create a false sense of urgency when, in reality, the retailer had always intended to extend the promotion beyond the advertised end date. The following are a few recent CEMA cases pending in Washington state and federal court, and the allegedly deceptive time-limited promotion subject lines they identify. Samson v. Scholastic, filed Sept. 30 in the King County Superior Court: "Surprise! Your 25% OFF is Back for TWO DAYS ONLY!" and "Less than 24 Hours: Up to 40% Off!" Rice v. Hilton Grand Vacations, filed Sept. 30 in Washington's King County Superior Court: "ALMOST GONE: Your Chance To Get Away From $109" and "GONE TOMORROW: This 100,000 Hilton Honors Points Offer." Liss v. Skechers USA, filed Sept. 22 in the U.S. District Court for the Western District of Washington: "Surprise! Long Weekend Savings Extended for Today!" and "SALE EXTENDED: Deals on slip-ins, boots + more!" Liss v. Lenovo, filed Sept. 19 in the Western District of Washington, and Crowley v. Best Buy Co., filed Aug. 26 in Washington's King County Superior Court: "It ain't over yet! The sale goes through Sunday. There's still time to save up to 62%" and "Final hours to save this Labor Day!" Some have gone a step further, like in Perdomo v. Fullbeauty Brands Operations, filed Sept. 19 in the Western District of Washington, arguing that any subject line discussing a percent-off sale or "buy one, get one free" promotion is deceptive because the retailers perpetually offer the item at a discount.[5] In effect, these suits are strict liability variations of the hundreds of fake sales claims that have been plaguing the retail industry for years. But unlike traditional false advertising laws — which require reliance and injury and only provide for actual damages — the plaintiffs are seeking $500 per email for emails that nobody may have ever seen. Instead, the plaintiffs claim that to state a claim under CEMA, it is enough to prove only that they received a commercial email that contained any false or misleading information in the subject line.[6] As the Brown majority put it, "the injury is receiving the email that violates CEMA."[7] In Maryland, lawsuits under its CEMA analog have largely targeted email subject lines that allegedly promise a free gift.[8] For example, in Carter v. Vineyard Vines LLC, filed Sept. 25, in the U.S. District Court for the District of Maryland, the plaintiff identified emails with subject lines — like "In Stores Tomorrow: FREE GIFT For Mom!" or "Cyber Monday: Up to 60% Off SITEWIDE +Free Gift!" — where the body of the emails require the plaintiffs to make additional purchases or take additional steps to obtain the gift.[9] The plaintiffs allege that these subject lines were misleading because the gift is only available to customers who make certain qualifying purchases, and are therefore not actually free. Statutory Background By way of background, Washington enacted CEMA in 1998 to prohibit anyone from sending commercial emails to Washington residents that either disguise the sender or contain false or misleading information in the subject line.[10] A violation of CEMA is a per se violation of the Washington Consumer Protection Act, and beyond the actual damages that the WCPA authorizes, CEMA violations trigger statutory penalties of $500 per violation. The plaintiffs claim that this means per email and per consumer. That means that someone who receives one violative email a week for a year could be entitled to $26,000. Multiply that by, say, 100,000 Washington email recipients, and a company could be facing $2.6 trillion in penalties. On April 17, the Washington Supreme Court in Brown v. Old Navy issued a split decision holding that CEMA prohibits sending any commercial email to Washington residents where the subject line contains any false or misleading information. The 5-4 majority held that "[t]he plain language of [CEMA] is not ambiguous," such that legislative history should not be considered in the legislature's intent.[11] Instead, the court held, the statute's plain language prohibits any false or misleading statements — not just misrepresentations about the content of the email. Thus, a commercial email could violate the subject line provision "even when the false or misleading information in the subject line does not deceive the recipient about the advertising purpose or commercial nature of the email."[12] Defendant Retailers Fight Back In the Washington cases, which have generally been filed in state court and then removed to federal court, several defendants — including in the now-remanded Brown case — have already filed motions to dismiss. Most of these motions have argued that CEMA is preempted by the Controlling the Assault of Non-Solicited Pornography and Marketing Act, or CAN-SPAM Act, which broadly preempts most state laws that regulate e-mail: This chapter supersedes any statute ... of a State ... that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute ... prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.[13][14] The question for the courts, then, will be whether CEMA's subject line provision falls into the carveout concerning laws prohibiting falsity or deception. In the 2009 case of Gordon v. Virtumundo Inc., the U.S. Court of Appeals for the Ninth Circuit, interpreting a different section of CEMA, interpreted CAN-SPAM's preemption exception as narrow, limited and reserved for claims involving "traditionally tortious or wrongful conduct." Because the CEMA claims in Virtumundo had "no basis in traditional tort theories," the Ninth Circuit found that the claim was preempted.[15] These defendants have argued that under Virtumundo, a plaintiff cannot bring claims under CEMA for subject lines that they never viewed or relied on, or much less were injured by. Another threshold issue that could affect a plaintiff's ability to bring a subject-line claim is whether a plaintiff agreed to a retailer's terms of service, which may dictate specific dispute resolution procedures. For example, in Perkins v. Rugs.com, which was filed in January and is currently pending before the Ninth Circuit, the defendant retailer moved to compel arbitration, arguing that in making online purchases, the plaintiff agreed to the retailers' terms of service, which included an arbitration provision.[16] Finally, some retailers have argued that CEMA is preempted by the dormant commerce clause because it regulates commerce in a manner that is disruptive to economic activities outside the state of Washington.[17] Conclusion The ripple effects of Brown v. Old Navy extend far beyond Washington's borders. While the decision ostensibly interprets one state's statute, it has opened the door to nationwide copycat litigation. Indeed, 18 states have similar laws restricting false and misleading subject lines.[18] With plaintiffs firms already leveraging Brown to launch parallel suits in Maryland and testing similar theories in other jurisdictions, the threat of mass liability is no longer hypothetical — it is imminent. Until courts clarify the scope of CAN-SPAM preemption, the definition of "misleading" and the extent of statutory damages, retailers are operating in a landscape of profound uncertainty. Every marketing email — no matter how routine — now carries potential exposure measured not in thousands, but in millions or even billions of dollars. Retailers should act swiftly to mitigate this risk. That means auditing all commercial email practices, considering legal implications before extending time-limited promotions, and ensuring marketing teams understand that accuracy in subject lines is not merely a best practice — it is a legal imperative. Businesses that proactively adapt their compliance strategies will be best positioned to withstand this new wave of litigation and to shape how courts ultimately interpret the reach of CEMA and its analogs. In short, while Brown may have begun as a narrow dispute over "today only" sales, its consequences could redefine the boundaries of digital marketing liability nationwide. The time to RE:act is now. Stephanie A. Sheridan is a partner and chair of the retail and e-commerce practice group at Benesch Friedlander Coplan & Aronoff LLP. Meegan Brooks is a partner at Benesch. Kennedy Dickson is an associate at the firm. The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] RCW § 19.190.020(1)(b). [2] Certification from those United States District Court for the Western District of Washington in Brown v. Old Navy, LLC , 567 P.3d 38 (Wash. 2025) ("Brown"). The certified question before the Washington Supreme Court was: "Does RCW 19.190.020(1)(b) prohibit the transmission of a commercial email with a subject line containing any false or misleading information, or is the prohibition limited to subject lines containing false or misleading information about the commercial nature of the email message?" See Brown v. Old Navy, LLC, No. 2:23-cv-00781, 2023 WL 12071921, *1 (W.D. Wash. Nov. 29, 2023). [3] See, e.g., Jerde v. BYLT, LLC, No. 25-2-19436-1, King County Superior Court (July 2, 2025), removed Jerde v. BYLT, LLC, No. 2:25-cv-1496 (W.D. Wash. Aug. 8, 2025); Hendrix v. Lenovo, Inc., No. 25-2-22005, King County Superior Court (July 29, 2025); Greer v. Portland Leather, LLC, No. 25-2-21694-2, King County Superior Court (July 25, 2025); Hutton v. Papa John's, No. 25-2-07959-31, Snohomish County Superior Court (Sept. 3, 2025). [4] See, e.g., Carter v. Vineyard Vines, LLC, Case No. C-03-CV-25-003960, Baltimore County Circuit Court, removed Carter v. Vineyard Vines, LLC, No. 1:25-cv-03178 (D. Md.  Sept. 24, 2025); Plotts v. L'Occitane, Inc., Case No. C24CV25008284, Baltimore County Circuit Court; Hernandez v. L Oreal USA S/D, Inc., Case No. C08CV25000940, Charles County Circuit Court; Crooks v. COTY DTC Holdings LLC, Case No. C24CV25008407, Baltimore City Circuit Court; and Chapman v. Omahasteaks.com LLC, Case No. C10CV25000870, Frederick County Circuit Court. [5] See, e.g., Perdomo v. Fullbeauty Brands Operations, LLC, 3:25-cv-5844 (W.D. Wash. 2025). [6] See Kempf v. Fullbeauty Brands Operations, LLC, 2:25-cv-01141 (W.D. Wash. 2025); Liss v. Skechers USA, No. 3:25-cv-05861 (W.D. Wash. 2025). [7] Old Navy, 567 P.3d ¶22. [8] C.L. §§ 14 — 3001 to 14 — 3003 ("MCEMA"). [9] Carter v. Vineyard Vines, LLC, Case No.:C-03-CV-25-003960 Baltimore County Circuit Court, removed Carter v. Vineyard Vines, LLC No. 1:25-cv-03178 (D. Md. 2025). [10] RCW § 19.190.020(1). [11] Old Navy, 567 P.3d at ¶ 25. [12] Id. at ¶15. [13] 15 U.S.C. § 7707(b)(1) (emphasis added). [14] See, e.g., Harrington v. Vineyard Vines (W.D. Wash. 2:25-cv-01115); Brown v. Old Navy, LLC (W.D. Wash. 2:23-cv-00781); Jerde v. BYLT, LLC (W.D. Wash. 2:25-cv-01496). [15] Id. at 1064. [16] See, e.g., Perkins v. Rugs.com (9th Cir. 25-4155). [17] See, e.g., Perkins v. Global Custom Commerce, Inc. (W.D. Wash. 2:25-cv-01750); Kempf v. Fullbeauty Brands Operations, LLC (W.D. Wash. No. 2:25-cv-01141); see also Emilie Ruscoe, Wash. Spam Email Law is Unconstitutional, Retailers Say, Law360 (Oct. 7, 2025), https://www.law360.com/articles/2396549/wash-spam-email-law-is-unconstitutional-retailers-say. [18] See, e.g., Cal. Bus. & Prof. §17529.5 (California); F.S.A. §668.603 (Florida); Ind. Code §24-5-22-7 (Indiana). 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