The Washington Supreme Court’s decision in Brown v. Old Navy LLC, 4 Wash.3d 580 (2025) has sparked a wave of putative class actions under Washington’s Commercial Electronic Mail Act (“CEMA”), targeting allegedly misleading email subject lines used by national retailers. In the months since, defendants have increasingly turned to constitutional and federal preemption defenses in an effort to stem this growing tide of litigation. To date, however, those arguments have gained little traction. Several district court decisions have denied defendants’ motions to dismiss on these grounds.Continue Reading District Courts Appear Skeptical of CAN‑SPAM Preemption and Constitutional Challenges to CEMA
Recent Class Actions Under State Anti-Spam Laws Target Retail Email Marketing Practices and Raise Questions about CAN-SPAM Act Preemption
A Washington State Supreme Court decision last spring that construed that state’s Commercial Electronic Mail Act (“CEMA”) to broadly prohibit any misleading information in retailers’ email subject lines has opened the floodgates to similar state spam claims. In the past six months, there have been eight putative class action complaints alleging that retailers’ misleading email subject lines violate CEMA, and more alleging similar claims under other state spam laws. Businesses face heightened exposure to liability for marketing practices that seek to convey a sense of urgency with respect to promotional timelines. This spate of litigation raises important questions about the scope and enforceability of state anti-spam laws, including whether such claims are preempted under the federal Controlling the Assault of Non–Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”). Continue Reading Recent Class Actions Under State Anti-Spam Laws Target Retail Email Marketing Practices and Raise Questions about CAN-SPAM Act Preemption