Washington’s CEMA amendment is live, but email subject line litigation is not over

As of June 11, 2026, Washington state’s amendment to the Commercial Electronic Mail Act (CEMA) is in effect. The amendment adds a knowledge requirement for misleading subject line claims and lowers statutory damages, but it does not end CEMA litigation risk.

Retailers and other consumer-facing businesses should review email-marketing practices, preserve campaign evidence, and treat new CEMA claims as part of a broader wave of consumer class actions targeting promotions, pricing, website technology, and consumer outreach.

The story so far

The amendment follows the Washington Supreme Court’s April 2025 decision in Brown v. Old Navy, LLC, which held that pre-amendment CEMA reached commercial email subject lines containing allegedly false or misleading information, not only emails that concealed their commercial nature. Brown involved subject lines stating that promotional events were ending or otherwise time limited, even though the plaintiffs alleged the promotions were later continued or extended.

The decision gave plaintiffs a template for putative class actions alleging false urgency and illusory discounts. And while the court recognized that subjective opinions and puffery are not actionable, Brown helped prompt a flood of putative class actions against retailers.

What the amendment changes – and what it does not

The Washington legislature amended CEMA in two important ways. First, a misleading email subject line claim now requires a defendant to have “actual knowledge or knowledge fairly implied on the basis of objective circumstances” that the email subject line contained false or misleading information. Second, statutory damages have been reduced from $500 to $100 per email.

The express knowledge requirement should make it harder for plaintiffs to rely only on the fact that a promotion was extended. Plaintiffs must plead what the defendant actually knew, or what knowledge can fairly be implied from objective circumstances, when the subject line was used.

That will make the facts behind a campaign more important and could allow for stronger arguments based on pleading standards. Plaintiffs, however, are likely to argue that repeated or standardized promotional practices supply the “objective circumstances” needed to imply knowledge.

The damages reduction is important, but plaintiffs still have an incentive to plead huge aggregate damages theories. Certain high-volume email campaigns could still create substantial exposure at $100 per email. Plaintiffs also will likely continue pairing CEMA claims with Washington Consumer Protection Act theories that seek fees, injunctive relief, and treble damages. The amendment leaves existing case law intact on elements unrelated to knowledge. In short, the amendment is meaningful, but it does not eliminate the features that made CEMA attractive to plaintiffs.

Relevance to pending and new cases

The amendment clearly applies to causes of action commenced on or after June 11, 2026, regardless of when the cause of action arose. But it also may matter in cases filed before that effective date.

Many current CEMA cases are still in early stages. Plaintiffs’ efforts to amend pleadings, add plaintiffs, or change class periods or recovery theories could raise questions about which law applies to which claims, emails, and class members. Companies should prepare for those issues before they appear in motion-to-amend or class-certification briefing.

As of this writing, plaintiffs have filed at least one post-amendment putative CEMA class action that appears designed to plead the new knowledge elements.

CEMA as part of a larger consumer litigation trend

CEMA should not be viewed as a one-off email statute or a purely local Washington issue. For many defendants, particularly retailers operating multiple brands, CEMA claims are arriving as part of a broader, coordinated wave of litigation targeting marketing communications, pricing practices, website technology, and consumer outreach. A marketing campaign can create litigation risk under a range of consumer protection, anti-spam/non-solicitation, and privacy statutes in various jurisdictions.

That broader view should shape defense strategy. Companies facing these claims should avoid treating these matters on an isolated, case-by-case basis, and should instead view them in terms of a broader, coordinated defense strategy that accounts for how plaintiffs are building consumer protection and privacy cases across retail portfolios and jurisdictions.

If you have questions concerning this client alert or its subject matter, please contact your regular McDermott Will & Schulte lawyer or one of the authors.