Trouble in Paradise: Subject Line Class Action Hits Florida

In the year since the Washington Supreme Court opened the floodgates to subject line litigation, nearly 100 lawsuits have been filed in Washington State seeking rich statutory penalties for routine marketing subject lines, based on the theory that by allegedly misrepresenting the duration or availability of a promotion, the subject line ran afoul of the Washington Commercial Electronic Mail Act’s (CEMA) prohibition on subject lines containing “false or misleading” information. Maryland quickly emerged as the second highest-risk state, with 10 similar suits filed in the same time frame. California was next, followed by two outlier lawsuits in Indiana.

Now, the Plaintiffs’ bar has found its next target: Florida.

Overview of Florida’s Electronic Mail Communications Act

Florida’s Electronic Mail Communications Act (FEMCA), codified at Florida Statutes §§ 668.60–668.610, contains prohibitions materially similar to Washington’s CEMA, including a nearly identical ban on “false or misleading information in the subject line” of unsolicited commercial emails. The statute was enacted to “promote the integrity of electronic commerce and … protect the public and legitimate businesses from deceptive … commercial electronic mail,” and courts are instructed to construe it “liberally in order to protect the public.”

The similarities between CEMA and FEMCA make sense, as both statutes are part of a broader wave of state anti-spam legislation that developed during the late 1990s and early 2000s, with states adopting similar approaches to address deceptive email marketing practices. This same wave of legislation ultimately led Congress to enact the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003. While CAN-SPAM preempts state law in practically every way, its preemption provision has a carve-out for state laws that “prohibit[] falsity or deception in any portion of a commercial electronic mail message or information attached thereto.” Plaintiffs have claimed this exception covers lawsuits for misleading subject lines, and recent federal court decisions have rejected preemption arguments for claims based on false urgency or misstatements about promotional offers.

Like CEMA, FEMCA contains a four-year statute of limitations and provides for $500-per-email liquidated damages, injunctive relief, and attorneys’ fees. Thus, FEMCA potentially provides for the same catastrophic damages that plaintiffs are seeking in Washington: a single email, sent to 1,000 consumers, for example, allegedly results in $500,000 in liability. Unlike CEMA, FEMCA also includes criminal penalties for egregious violations, escalating from a first-degree misdemeanor to a third-degree felony for high-volume senders or those generating significant revenues from violations.

Importantly, there is no recent appellate guidance in Florida interpreting FEMCA’s subject line prohibition, which means courts will be writing on a relatively blank slate. This lack of precedent may lead to early motion practice focused on what qualifies as “false or misleading” under the statute.

The Canary in the Coal Mine

FEMCA has lain relatively dormant on Florida’s books for 22 years, with very little litigation. This week, however, a new FEMCA class action was filed in the U.S. District Court for the Middle District of Florida, seeking to represent a class of “at least thousands” of Florida residents who received emails regarding a gift card offer. The plaintiff alleges that the defendant sent marketing emails with subject lines offering a “Free $20 Gift Card”—but the “free” offer was only available to consumers who first purchased a $100 gift card.

The complaint characterizes this marketing tactic as a form of “clickbait” and invokes the psychological “foot-in-the-door technique” that marketers use to “guide customers from small, easy actions to high-value behaviors.” According to the plaintiff, because the $20 gift card was contingent on a $100 purchase, the subject line’s characterization of the offer as “free” was false and misleading in violation of FEMCA.

This is a clear sign of more to come, as most of the law firms that bring subject line cases have invested heavily, often filing dozens of similar actions under the same law.

Implications for Retailers and E-Commerce Companies

The emergence of FEMCA litigation should prompt retailers and e-commerce companies to review their email marketing practices, particularly subject lines that:

• Advertise “free” products or gifts that require a purchase or minimum spend
• Create urgency around sales or promotions that may continue thereafter
• Reference limited availability that is not genuinely limited
• Overstate discounts or savings compared to regular prices

With 33 states having commercial email or spam-specific laws on the books—and plaintiffs’ counsel actively searching for new jurisdictions—companies would be well-advised to evaluate their compliance with state laws beyond Washington, including FEMCA.

Ballard Spahr’s Retail and E-Commerce Team is the industry leader in spam email litigation and retail pricing and regulation. If you have questions about FEMCA, CEMA, or our group’s experience, please contact us.

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