Washington CEMA Litigation Targets Promotional Email Subject Lines and Sale Deadlines

Since that decision, plaintiffs have filed more than 100 CEMA lawsuits against retailers. Many of them challenge promotional email subject lines such as “ENDS TONIGHT,” “FINAL HOURS,” and “LAST CHANCE,” alleging that the lines were misleading because a similar promotion continued afterward. Similar claims are now being filed under commercial email statutes in Maryland, Indiana, Florida, and California. Separately, the Federal Trade Commission (FTC) has issued guidance on countdown timers and limited-time messaging.

Background

These cases primarily involve promotional email campaigns sent to recipients in Washington, California, and Maryland. The complaints generally allege that a subject line represented that a sale would end at a stated time, and that the sender later continued the promotion or offered a different discount. Defendants have disputed these allegations, including whether subject lines of this kind are actionable statements of fact and whether a later promotion shows that an earlier one was not genuine.

Regulators have also addressed related practices. The FTC has published guidance describing “Baseless Countdown Timers” and “False Limited Time Messages” as dark patterns. The FTC’s Guides Against Deceptive Pricing, 16 C.F.R. Part 233, address limited offers and recurring sale pricing. The National Advertising Division has also reviewed limited-time deal claims.  

What Was Decided

In Brown v. Old Navy, the Washington Supreme Court concluded that CEMA applies to false or misleading information about the duration or availability of a promotion, not simply whether the nature of the email was misleading — i.e., disguising the commercial nature of the email. The court did not decide whether any particular subject line, or any particular sequence of promotions, is false or misleading. Those questions remain open and depend on the facts of each case. Rulings allowing claims to proceed past the pleading stage are not decisions on the merits.

Under the version of the statute that applies to lawsuits filed before June 11, statutory damages are $500 per email. An amendment effective June 11 reduces statutory damages to $100 per email for lawsuits filed on or after that date. It also adds a knowledge requirement: the sender must have “actual knowledge or knowledge fairly implied on the basis of objective circumstances” that the subject line is false or misleading. Treble damages remain available, and the amendment does not require proof of consumer harm.

Legal Reasoning

The central question in these cases is whether a subject line communicates a factual representation about how long an offer will last or whether it is available. Plaintiffs contend that phrases such as “ENDS TONIGHT,” “FINAL HOURS,” and “LAST CHANCE” are factual statements about when a deal expires. Defendants have argued that such language should be read in context, including the body of the email and the overall campaign.

Plaintiffs typically rely on what happened after the stated deadline. They point to an extension of the same offer, a larger discount offered soon afterward, or repeated extensions over time. These allegations raise fact questions that defendants may contest. Examples include whether the later offer was the same promotion, whether the decision to continue it was made after the deadline passed, and, for lawsuits subject to the amended statute, what the sender knew when the email was sent.

Why This Matters

Because statutory damages are calculated per email and may be trebled, claimed exposure in these class actions can be significant. That is true even at the amended $100-per-email amount. Companies that send promotional emails to Washington, California, or Maryland recipients may wish to review how time-specific subject lines are drafted and approved.

Campaign structure and full context may matter. Sequential promotions can present different facts when the offers are materially distinct. Examples include promotions on different product categories, a lower discount on a narrower product set, or a change in offer type, such as moving from a percentage discount to a gift with purchase or free shipping.

Subject lines that do not state a fixed deadline, such as “Shop our holiday deals” or “Don’t miss our current sale,” may present a different record than an express expiration claim. Stock-based language such as “Limited quantities available” is appropriate only when inventory is actually limited. Time-based urgency that matches an actual deadline, where the promotion ends as stated, is consistent with CEMA’s focus on false or misleading information.

Looking Ahead

Beyond Washington: Litigation Under Other State Statutes

Plaintiffs have also begun filing similar claims under commercial email statutes in other states, many of which saw little litigation before 2025. Commentators have noted that the June amendment to CEMA may make other states’ statutes more attractive to plaintiffs. Each statute has its own text, and courts in each state may read their statute differently from how Washington courts read CEMA.

Maryland: Plaintiffs have filed more than a dozen putative class actions under Maryland’s Commercial Electronic Mail Act, Md. Code, Com. Law § 14-3002. They argue that the Maryland statute was modeled on CEMA and should be read consistently with Brown.

Indiana: The Indiana Deceptive Commercial Electronic Mail Act, Ind. Code § 24-5-22-7, prohibits commercial emails containing “false or misleading information in the subject line” sent to recipients the sender knows or has reason to know are Indiana residents. It provides $500 in statutory damages per email plus attorneys’ fees, and it includes a defense for good-faith errors that occur despite reasonable procedures to avoid violations. On September 15, the US District Court for the Southern District of Indiana allowed part of a putative class action against Ulta Salon, Cosmetics & Fragrance, Inc. to proceed (No. 1:25-cv-02521).

In that ruling, the court dismissed the claim that the subject lines were “false,” because the email bodies disclosed the relevant conditions. It allowed the separate “misleading” theory to proceed and stated that whether the subject lines actually misled recipients was “a question for another day.” The court also rejected a CAN-SPAM preemption defense.  

Florida: In April, the first reported class action under Florida’s Electronic Mail Communications Act, Fla. Stat. §§ 668.60–668.610, was filed in the US District Court for the Middle District of Florida. The complaint challenges a subject line advertising a “Free $20 Gift Card” that was allegedly available only with the purchase of a $100 gift card. The Florida statute contains a similar prohibition on “false or misleading information in the subject line” of unsolicited commercial emails. It provides for $500 in liquidated damages per email, injunctive relief, and attorneys’ fees, with a four-year limitations period. There is no recent appellate guidance interpreting its subject line provision.

California and Other States: Since early 2026, plaintiffs have also filed class actions under California Business and Professions Code § 17529.5. Some of these claims go beyond subject lines and reach header information, display names, and email authentication practices. Kansas, North Dakota, and the District of Columbia are other jurisdictions with similar statutes that may draw filings and have reported that 33 states have commercial email or spam-specific laws.

Not all of these cases involve sale deadlines. The Indiana and Florida filings also target “free gift” and discount subject lines that allegedly omit conditions such as minimum purchases, which we have been successful dismissing with prejudice where the email body itself discloses the conditions of the free gift. Nevertheless, companies that send promotional emails nationally may face claims in several states over a single campaign, and defenses such as preemption, whole-message context, and statute-specific knowledge or good-faith provisions may play out differently in each state.

CEMA and Maryland litigation continues to develop, and many key questions have not yet been resolved on the merits. These include how courts will read subject lines in context, how they will treat sequential or materially different promotions, how the amended knowledge requirement will apply, and to what extent CAN-SPAM preempts no-injury claims.