Please read below the following information provided by the Washington Retail Association to better understand the impact this could have on your business, and how to prevent risk of being included in increased lawsuits:
What happened:
Brown v. Old Navy began as a proposed class action filed in 2023 in the Western District of Washington. The plaintiffs alleged that Old Navy’s promotional email subject lines using phrases like “Today Only,” “Last Day,” and “Final Hours” violated Washington’s Commercial Electronic Mail Act (CEMA) by being “misleading.”
The case went to the Washington Supreme Court because the federal court certified two key questions:
- Does CEMA prohibit subject lines that are not actually false, but could be considered misleading or ambiguous?
- Does a violation of CEMA automatically constitute a violation of Washington’s Consumer Protection Act?
The Washington Supreme Court, on a 5/4 vote, answered yes to both questions, and in doing so, dramatically expanded the scope of potential liability. The Court held that routine marketing language even if common and not deceptive in the traditional sense could trigger statutory damages if later characterized as misleading.
This ruling is what opened the door to a surge of lawsuits now being filed in Washington, and why this issue requires immediate attention.
Immediate impact:
- Washington has seen a surge of new lawsuits against national brands across apparel, beauty, home goods, travel, and more.
- The same plaintiffs’ firms are filing copy-and-paste class actions, often targeting normal email promotions.
- California and Maryland have similar statutes, and plaintiffs have already begun pursuing cases there as well.
Industries Already Affected and Those Likely to Be Targeted Next
Since the Brown v. Old Navy ruling, lawsuits have already been filed against companies across apparel and fashion, beauty and personal care, home goods and general retail, travel and hospitality, restaurants, consumer electronics, subscription services, and various e-commerce brands. These cases all challenge routine promotional email subject lines such as “Today Only,” “Last Chance,” “Ends Tonight,” and “Up to X% Off.” Even airlines are being targeted, despite
Because the ruling focuses solely on whether a subject line could be considered “misleading,” a wide range of businesses are now exposed.
- Industries most likely to be targeted next include:
- Beauty, skincare, wellness, and aesthetic services
- Airlines, hotels, travel platforms, and loyalty programs
- Subscription boxes, DTC brands, and meal-kit companies
- Pet supply and pet-subscription businesses
- Consumer electronics and large e-commerce marketplaces
Why this matters:
If not addressed, this will become a nationwide class-action model targeting everyday marketing practices across virtually every consumer-facing industry. The exposure is out of proportion to the conduct, and there is currently no safe harbor for good-faith promotional emails.
What we need to do:
I am assembling a business coalition to pursue a targeted and narrow legislative fix. I welcome the opportunity to brief you and discuss how your organization/businesses you represent may want to engage. The volume and speed of new filings make this a critical moment for industry to get involved before the problem spreads further.
Additional Info & Next Steps:
The following documents provide greater detail about the CEMA ruling.
CEMA POWERPOINT
CEMA ONE PAGE OVERVIEW
A Zoom meeting will take place on Tuesday, January 6th at 1-2pm PST regarding coalition efforts for Washington Retail Association
To participate in this meeting, and more information please contact:
Crystal Leatherman
Director of Policy & Government Affairs
Office: 360-200-6453 Email: cleatherman@washingtonretail.org
