Evergreen Pastures: CEMA Claims Gain Momentum One Year After Brown

For years, California has been the undisputed favorite forum of the plaintiffs’ bar. No longer. This month marks the one-year anniversary of the Washington Supreme Court’s decision in Brown v. Old Navy, LLC, 567 P.3d 38 (Wash. 2025), and the Evergreen State has quickly become the new destination of choice.

The Commercial Electronic Mail Act

The statute at issue, the Commercial Electronic Mail Act (CEMA), RCW 19.190.020(1)(b)—an anti-spam statute enacted in 1998—prohibits any email that “[c]ontains false or misleading information in the subject line.” In Brown, the Supreme Court held that “to violate subsection (1)(b), an email subject line does not need to deceive consumers about the subject or purpose of the email—it merely needs to contain false or misleading information.”

That decision has opened the floodgates to a wave of litigation, with plaintiffs pursuing statutory penalties of $500 per email, per recipient—often adding up to more than a billion dollars per case. CEMA’s penalties are staggering: $500 per violation, per recipient. A single email sent to 5,000 Washington recipients could mean $2.5 million in damages. One email a month for the four-year limitations period could mean $120 million in exposure. A CEMA violation is also a per se violation of Washington’s Consumer Protection Act, and plaintiffs argue penalties can be trebled.

The Litigation Gold Rush in Washington

Over 100 CEMA lawsuits have been filed since Brown—mostly by California and other out-of-state lawyers attracted to the prospect of steep statutory penalties. 23 firms have already filed CEMA suits: seven from Washington, seven from California, and 11 from elsewhere.

While most suits have targeted retailers, hotels, restaurants, and travel companies, cosmetic brands have also been named. Many cases target “limited time” promotions that were extended, “free” gifts requiring threshold purchases, or any mention of a “sale”—applying the theory that perpetual discounts make any promotional subject line false. Multiple cases have been filed in conjunction with suits in California and Oregon alleging false or deceptive reference prices.

The breadth of CEMA has come under scrutiny in recent months. At a hearing before the House Consumer Protection & Business Committee, a legislator asked an opponent of CEMA reform to identify any subject line that would not risk a lawsuit. Her response: she couldn’t think of one. That capacious interpretation of the 28-year-old statute is very new. Indeed, the Attorney General’s Office had previously published guidance explaining that a subject line does not violate CEMA if it “clearly represents what is being sent.” After Brown, that guidance was deleted.

And while CEMA only applies to emails sent to consumers that the company has “reason to know” reside in Washington, many complaints lack such detail. Thus, sending marketing emails to anonymous recipients on an email list can pose a risk as long as some of those recipients might reside in Washington. Thus, even for out-of-state defendants that do minimal business in Washington, CEMA presents a significant liability risk.

In many ways, this new wave of cases mirrors the rise of litigation that was seen under the California Invasion of Privacy Act (CIPA) in 2022, after the Ninth Circuit in Javier v. Assurance IQ, LLC suggested that online tracking technology might be actionable under CIPA. Now, just three years later, thousands of CIPA lawsuits have been filed. But while CIPA cases often settle for modest sums, multiple plaintiffs’ firms in the CEMA context are looking for millions.  Remarkably, not a single CEMA plaintiff claims to have actually read any challenged email—much less made a purchase based on any purported deception in the subject line.

Recent Litigation Developments

Most CEMA defendants have moved to dismiss on grounds that CEMA claims are preempted by the federal CAN-SPAM Act, 15 U.S.C. §§ 7701 et seq., which Congress enacted in 2003 to create uniform national standards for the regulation of commercial email. So far, these motions have not succeeded—district courts have held that CEMA claims for “false or misleading” subject lines fall outside CAN-SPAM’s preemption. However, defendants in at least two cases have sought interlocutory appellate review.

Before companies begin preparing for the collapse of e-commerce as we know it, trial and appellate courts will need to resolve multiple doctrinal questions—any of which may provide grounds for dismissal. For instance: What does “materiality” mean when no plaintiff claims to have read the email? Is an email deceptive if the subject line accurately reflects its content? Can pre-header disclosures cure a misleading subject line? Can asterisks linking to disclosures prevent deception? These are just a sample of the fundamental questions that will need to be addressed by trial and appellate courts. Suffice it to say, winning these cases will not be as automatic or easy as many plaintiffs’ firms apparently believe.

CEMA Reform: A Prompt Legislative Response in 2026

Statutory reform usually requires years of litigation. For example, BIPA was passed in 2008 and wasn’t amended until 2024 after an explosion of lawsuits had concluded. In California, CIPA reform is still out of reach—notwithstanding years of effort pursuing a modest amendment. But with CEMA, Washington’s legislature moved quickly: the legislature impressively proposed HB 2274 after mere months of litigation, with Governor Ferguson signing the bill into law on March 23, 2026. Effective June 11, 2026, the amendment reduces the statutory penalty from $500 to $100 and adds a more explicit scienter requirement. The discussion of further amendment is planned for the next legislative session, after the current wave of lawsuits has percolated throughout the court system.

Trends Outside Washington

CEMA is now just one piece of a broader patchwork. Plaintiffs have leveraged Brown to pursue claims under analogous anti-spam statutes in California, Maryland, Indiana, and Florida. Other states with similar laws—including Kansas, North Dakota, and Washington D.C.—may be next. Many of these statutes, like CEMA, have generated minimal litigation since enactment, but that appears poised to change.

Conclusion

One year after Brown, what began as a narrow, certified question has transformed into a nationwide litigation phenomenon. The plaintiffs’ bar shows no signs of slowing down. With statutory damages creating massive exposure and dormant state laws being dusted off, the financial incentives are clear. Companies sending promotional emails should expect this area to remain active for the foreseeable future.

Reprinted with permission from the The Recorder April 21, 2026 © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.