“Ending Tomorrow: A Big Deal Made Just for You!!” Is Your Email Subject Line a Lawsuit Waiting to Happen?

By: Katarina Neumann & Elizabeth Schlissel 

That promotional email your marketing team sent this morning could cost your business millions of dollars. Last week, Costco agreed to pay $14 million to settle a single class action over email subject lines, and your company could be next. Since April 2025, more than 200 class action lawsuits have been filed against companies alleging misleading email subject lines, with statutory damages assessed on a per-email, per-recipient basis. Businesses of every size, located anywhere in the country, are being targeted. 

What Is CEMA and Why Should You Care? 

Washington’s Commercial Electronic Mail Act (CEMA), codified at RCW Chapter 19.190, prohibits “false or misleading information in the subject line” of commercial electronic mail messages. A “commercial electronic mail message” is broadly defined as any email promoting real property, goods, or services. That definition captures virtually all marketing communications your business sends. 

In April 2025, the Washington Supreme Court’s 5-4 decision in Brown v. Old Navy, LLC dramatically expanded the statute’s reach. The Court held that CEMA prohibits any false or misleading subject-line information, not merely information designed to conceal an email’s commercial nature. The plaintiffs alleged Old Navy sent emails falsely stating promotions were ending (“Today Only,” “Three Days Only”) when those promotions continued past the stated deadlines. Critically, the only “injury” required is simply receiving the email. No purchase, no reliance, and no actual harm need be shown. 

Why CAN-SPAM Compliance Is Not Enough 

Many businesses assume that complying with the federal CAN-SPAM Act provides protection. It does not. CAN-SPAM focuses on opt-out compliance and header accuracy, and it provides no private right of action. Only the FTC and state attorneys general can enforce it. 

CEMA is fundamentally different. It targets the truthfulness of subject-line claims and provides a private right of action with statutory damages, enabling plaintiffs’ attorneys to file class actions directly. Violations are per se violations of Washington’s Consumer Protection Act, opening the door to treble damages and attorneys’ fees. A promotional email can fully comply with CAN-SPAM while still violating CEMA if its subject line contains a factual claim that is inaccurate. 

The Subject Lines That Are Getting Companies Sued 

The more than 200 lawsuits filed since Brown reveal clear patterns. High-risk categories of subject-line language include: 

• Urgency claims: “Ends Tonight,” “Last Chance,” “Final Hours” 
• Scarcity claims: “Only 3 Left,” “Almost Gone,” “Selling Fast” 
• Exclusivity claims: “VIP Only,” “Members Only,” “Private Sale” 
• Discount breadth: “50% Off Everything,” “Sitewide Sale” 
• Free offers: “Free Gift Inside,” “Complimentary Upgrade” 
• Personalization: “Picked Just for You,” “Your Exclusive Offer” 

The central issue in each case is the same: the subject line allegedly made a factual claim that was not accurate when the recipient received it. 

Your Business Is Exposed Even If You’re Not Based in Washington 

CEMA applies to businesses located anywhere if they send commercial email to Washington residents. The statute reaches emails sent to any address the sender “knows, or has reason to know” is held by a Washington resident. If your CRM, billing records, shipping addresses, or loyalty program data contains Washington addresses, you likely meet that threshold, regardless of whether your headquarters is in New York, California, or anywhere else. 

Courts have upheld this extraterritorial reach. In State v. Heckel (2001), the Washington Supreme Court characterized CEMA as a “requirement of truthfulness” that enables commerce. In Shahpur v. Ulta Beauty (E.D. Wash., Feb. 2026), the court rejected both CAN-SPAM preemption and Dormant Commerce Clause challenges. If you have customers in Washington, you are subject to this law. 

The Damages Can Be Staggering 

Even after HB 2274 (effective June 11, 2026) reduced statutory damages from $500 to $100 per email, the math is staggering. Consider: 20,000 Washington recipients receiving 5 emails each produces $10 million in potential statutory damages, before CPA treble damages and attorneys’ fees are applied. Costco’s $14 million settlement shows these are not hypothetical numbers. 

HB 2274 also added a knowledge requirement, limiting liability to situations where the sender had “actual knowledge or knowledge fairly implied on the basis of objective circumstances” that the subject line was false or misleading. However, these amendments apply only to lawsuits filed on or after June 11, 2026. They do not apply retroactively to the 200+ cases already pending. 

Steps You Can Take Now 

While the specific compliance measures depend on your business, the following steps provide a starting point: 

• Substantiate every subject-line claim with documentation confirming accuracy, including promotion dates, eligible audiences, and discount mechanics. 
• Segment and flag Washington recipients for heightened review before emails are sent. 
• Implement a legal review workflow for subject lines containing urgency, scarcity, exclusivity, or discount claims. 
• Audit vendor and affiliate email practices and require contractual CEMA compliance. 
• Train marketing teams on the specific types of email subject lines that create CEMA risk. 

While these measures can reduce exposure, compliance ultimately depends on adopting policies that address company-specific email volume, customer base, and marketing practices. 

The compliance landscape is complex and evolving. Washington is not the only state where  exposure to these alleged claims is a significant risk; Maryland, Indiana, California, Florida, and Utah have analogous statutes that are beginning to target. If your company sends promotional emails, the time to evaluate your practices is now, not after you receive a complaint or a class action filing. 

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Falcon Rappaport & Berkman LLP advises businesses nationwide on email marketing and privacy compliance under federal and state law. For questions about your CEMA exposure or multi-state email marketing risk, please contact Elizabeth Schlissel at eschlissel@frblaw.com.