A recent decision out of Washington federal court once again puts the state’s Commercial Electronic Mail Act (“CEMA”) squarely back in the spotlight as an increasingly significant source of risk for retailers. In a putative class action against Ulta Beauty, the court refused to dismiss claims that the beauty retailer used misleading promotional subject lines – putting both the statute’s growing reach and its rising relevance for consumer goods brands in the spotlight.
The Ulta case centers on allegations that the retailer sent emails with subject line, such as “ending soon” or “last chance,” suggesting that promotions were about to expire – only for those offers to be extended or repeated, creating what the plaintiffs characterize as a false sense of urgency. Allowing the claims to proceed, the court held that the allegations plausibly fall within CEMA’s prohibition on “false or misleading” subject lines.
The court did not require the plaintiffs to plead traditional fraud elements like reliance or intent, instead focusing on whether the subject line itself is false or misleading, and rejected Ulta’s broader defenses – consistent with other decisions declining to find CEMA preempted by the CAN-SPAM Act or unconstitutional under the dormant Commerce Clause at the pleading stage. Ulta has since filed a motion to certify an appeal.
A Wave of Litigation
The Ulta ruling builds on the Washington Supreme Court’s April 2025 decision in Brown v. Old Navy, which catalyzed the current wave of CEMA litigation. In that case, the court adopted an expansive interpretation of the statute, holding that it is not limited to whether an email’s subject line accurately reflects its commercial nature. It also applies to what the subject line says about promos – such as when a sale ends or how long it will be available – making clear that those statements will be treated as factual claims, not mere marketing hype, and can give rise to liability if they are false or misleading.
That interpretation has had sizable consequences: In the wake of the decision, plaintiffs’ firms have filed roughly 100 lawsuits targeting retailers across industries. Many of these complaints target companies over emails advertising that a sale is ending “today,” “tonight,” or as the “last chance,” followed by subsequent emails extending or repeating the same offer. Others go further, challenging how discounts themselves are framed – for example, alleging that advertised markdowns are misleading if the reference price is rarely used in practice.
A Statute with Teeth
CEMA’s structure helps explain its appeal to plaintiffs. Until recently, the statute allowed for statutory damages of $500 per violation without requiring proof of actual harm. An amendment signed into law by Washington Governor Bob Ferguson on Monday, as first reported by TFL, reduces that amount to $100 per violation and adds a knowledge requirement. Because a CEMA violation can also serve as a predicate for claims under Washington’s Consumer Protection Act – which permits treble damages – potential exposure can escalate quickly in the context of large-scale email campaigns.
Combined with the absence of traditional fraud requirements, that framework has made CEMA a powerful vehicle for class actions – and an attractive target for plaintiffs’ attorneys. And courts have largely rejected arguments that CEMA is preempted by CAN-SPAM or unconstitutional under the dormant Commerce Clause, while emphasizing that liability can often be avoided through accurate subject lines.
As Ballard Spahr’s Stephanie Sheridan and Meegan Brooks note, “CEMA does not explicitly require proof of actual injury,” a point the Brown court endorsed in concluding that the statutory “injury” lies in the receipt of a violative email itself. As a result, plaintiffs argue that even if they did not notice an allegedly violative subject line, the mere act of receiving it may entitle them – and a putative class – to statutory damages.
Sheridan and Brooks further warn that “CEMA’s combination of broad liability, statutory damages, and lack of an injury requirement transforms every marketing email into a potential lawsuit,” advising retailers to “immediately review their email marketing practices, with a specific eye toward time-sensitive language,” as phrases like “today only,” “last chance,” and “ends soon” present heightened risk.”
THE BIGGER PICTURE: While the recent CEMA amendment may temper some of the financial incentives driving these cases, it is unlikely to slow the broader shift in how courts are interpreting the statute. Taken together, the Old Navy and Ulta decisions reflect a more expansive view of what qualifies as misleading in the context of email marketing, particularly when it comes to representations about timing and availability.
For retail companies, that shift carries real consequences. As CEMA litigation continues, email subject lines – once a largely creative exercise – are becoming a focal point of legal risk. And as similar statutes in other states begin to draw attention, plaintiffs’ counsel are starting to view those jurisdictions as attractive forums for bringing similar “misleading” subject line claims, raising the prospect that this wave of litigation may extend well beyond Washington.
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