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We recently reported on the surge of lawsuits attacking routine promotional email taglines as supposedly "false or misleading subject lines" under Washington State's Commercial Electronic Mail Act (CEMA). As these cases continue to proliferate, courts are grappling with threshold issues – including CAN‑SPAM Act preemption, the sufficiency of pleadings, and what constitutes cognizable injury/standing to proceed in federal court. At the same time, we have wondered whether the legislature might step in to address the growing volume of claims.
One striking feature of the current wave of litigation is what is not being alleged. In many cases, plaintiffs do not claim they ever saw the email at issue – let alone that they read it, relied on it or suffered any detriment because of it. Yet because CEMA provides statutory damages and supplies elements to establish a per se violation of Washington's Consumer Protection Act (CPA), plaintiffs attempt to bypass pleading or proving reliance or any specific injury.
That dynamic may soon change. Two companion bills – SB 5796 and HB 2274 – have now been introduced in the Washington Legislature. Together, they propose a meaningful shift, adding a materiality requirement and eliminating components to establish an automatic CPA violation.
Under the proposed amendments, a plaintiff could recover only if they received, reviewed and detrimentally relied on the email – not merely if the email landed in their inbox. That is because instead of the current standard, which hinges on alleging "false or misleading information in the subject line," the bills would require showing that the email contained a subject line that:
"based on the person's actual knowledge, or knowledge fairly implied from objective circumstances, would be likely to mislead a recipient—acting reasonably under the circumstances—about a fact material to the relevant transaction, and . . . was in fact material to the recipient in completing the transaction."
In other words, the inquiry becomes both objective (would a reasonable recipient be misled about something material?) and subjective (was it material to this recipient's decision in completing the transaction?).
The bills would also remove the provision making a CEMA violation a per se CPA violation.
Notably, lawsuits filed on or after the effective date would be subject to these new standards, regardless of when the underlying conduct occurred.
We'll continue to monitor these bills closely and report on further developments as they unfold.
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