Washington CEMA Claims — New Risks in the Email Marketing Space
Washington has recently seen an influx of class actions premised on alleged violations of the state’s Commercial Electronic Mail Act (CEMA). The ubiquity of email marketing campaigns has dragged the statute out of obscurity and propelled it to popularity with the plaintiffs’ bar. Companies, including retailers, engaged in email marketing should keep a close eye on developments in this space given the surge in cases.
What Is CEMA?
Washington’s Commercial Electronic Mail Act is a state law that regulates “commercial electronic mail messages” and “commercial electronic text messages.” Among other things, the statute prohibits emails with subject lines that have "false or misleading information" (subject to additional requirements).1
Why the Surge?
A variety of issues have propelled CEMA into the limelight, including amendments that went into effect in June. Those amendments, among other things, reduced damages that plaintiffs in this space argue they are entitled to - a position that defendants have rejected.2 The amendments also resulted in class action filings just before the deadline. Many of those cases, which have now been on dockets for a few months, are beginning to result in decisions (some conflicting) addressing a variety of issues, including standing, preemption, and pleading standards.
What Do the Cases Look Like?
Typical fact patterns in these cases center on claims that emails misrepresented promotions and sales, including their duration. A claim may, for example, allege:
- “The plaintiff received an email two weeks before Thanksgiving about a Black Friday sale ending at midnight.”
- “The day after Black Friday, the plaintiff received another email saying the Black Friday sale had been extended.”
The Penney OpCo Appeal and Why It Matters
Given the uptick in these cases, this has become a quickly evolving area of law. Claims have made their way up to the Ninth Circuit, which will soon chime in, in an appeal called Montes v. Penney OpCo, LLC et al.3 There, the defendant moved to dismiss on a variety of grounds and the US District Court for the Eastern District of Washington agreed the case should be dismissed, but without prejudice on the basis of a lack of Article III standing to remain in federal court.4 In other words, though the case would no longer proceed in federal court, the plaintiff could potentially proceed in state court.
The parties responded with cross-appeals, and the Ninth Circuit is now poised to answer two questions raised by the defendant: (1) whether plaintiffs with these claims have Article III standing and (2) whether these claims are preempted by the federal CAN-SPAM Act.5
As the defendant argues on appeal as to CAN-SPAM Act preemption:
- [B]ecause Montes failed to allege that she saw or relied upon any of the e-mails, or was injured due to such reliance, her claims cannot satisfy the elements of traditional misrepresentation tort and are preempted by CAN-SPAM.
. . .
This Court can, and should, affirm the District Court’s dismissal of Montes’s claims. But it should do so under Rule 12(b)(6) and hold that Montes . . . failed to state a plausible claim for relief . . . .6
If the Ninth Circuit agrees with the defendant’s position on CAN-SPAM Act preemption, the forthcoming decision will have substantial ramifications. Chief among those, the decision could end many pending lawsuits and curtail future lawsuits.
What Should Companies Be Doing Now?
With the above in mind, and with the assistance of counsel, companies engaged in email marketing should monitor litigation in this space and review their marketing campaigns, email opt-in/consent mechanisms and language, and website Terms of Service and consider including or updating arbitration clauses and class action waivers. If they are facing a live case, they should also evaluate trying to stay their case while the Ninth Circuit considers these issues.
ENDNOTES
1. RCW 19.190.020(1)(b).
2. See RCW 19.190.020 & 19.190.040.
3. Nos. 25-8045 & 26-241 (9th Cir.).
4. Montes v. Catalyst Brands LLC, No. 25-cv-0281, 2025 U.S. Dist. LEXIS 250731, at *10 (E.D. Wash. Dec. 4, 2025).
5. 15 U.S.C. § 7701 et seq.
6. Defendants-Appellants/Cross-Appellees’ Opening Brief, Dkt. No. 35.1 in Montes v. Penney OpCo, LLC et al., Nos. 25-8045 & 26-241 (9th Cir.) at 23–25.
Authors
Esteban Morales
Member
