Washington State’s CEMA Amendment: A Speedbump, Not a Roadblock

Summary

Washington State has seen an explosion of lawsuits under its Commercial Electronic Mail Act (CEMA, Ch. 19.190 RCW), stemming from the Washington Supreme Court’s ruling last year in Brown v. Old Navy expanding the scope of “false or misleading” email content.

As discussed by many commentators, the decision extended CEMA’s reach beyond traditional commercial advertising to include misleading email subject lines. Because statutory damages were previously set at $500 per message without the need to show actual damages, companies communicating electronically with Washington residents have faced new, sprawling exposure and must reevaluate compliance programs.

CEMA has been a changing landscape with a recent statutory amendment going into effect to lower the statutory penalty and amend the knowledge requirement. Additionally, recent court decisions have provided further guidance on common defenses companies have been employing in CEMA class actions.

Recent Statutory Amendments

The surge in CEMA lawsuits did not go unnoticed. The Washington legislature took action this year passing HB 2274 in March 2026, which went into effect on June 11, 2026. Unfortunately, the amendment does nothing to help companies already facing CEMA litigation. The amendment applies solely to those lawsuits filed on or after June 11, 2026. For lawsuits filed before June 11, 2026, the law does not apply.

The law was designed as a quick fix to address the flood of litigation over routine, non-deceptive emails that contained subject lines commonly used in marketing. Testimony in support of the bill highlighted these concerns, noting that CEMA does not require proof of any consumer harm and that the $500 statutory damages penalize companies for technical violations of the statute.

HB 2274 addressed these issues in two ways:

1. Statutory Damages: Reducing the statutory penalty to $100 per violation
2. Knowledge: Removing the strict liability standard by requiring knowledge that the subject line was false or misleading

Specifically, HB 2274 amended RCW 19.190.020 to explicitly require a defendant had “actual knowledge or knowledge fairly implied on the basis of objective circumstances” that the subject line of the email contains false or misleading information. ESHB 2274, Sec. 1. This language is narrower than originally proposed to the legislature. The original bill would have also required proving that the subject line was likely “to mislead a recipient, acting reasonably under the circumstances, about a fact material to the relevant transaction …” HB 2274, Sec. 1. But even the narrowed version substantially helps companies facing CEMA lawsuits.

The amendment reduces the incentive for plaintiffs by lowering the statutory damages available and requiring some element of knowledge for false or misleading subject lines. By requiring plaintiffs to plead and prove that a defendant had actual knowledge, or knowledge fairly implied from objective circumstances, that a subject line was false or misleading, the amendment creates a substantial new evidentiary hurdle for plaintiffs, who must now plead and prove a defendant’s knowledge rather than rely on a strict liability standard. This additional element is likely to make CEMA claims for plaintiffs more challenging to litigate and win. With the effective date of June 11, 2026, plaintiffs rushed to file their class actions before then. But even a $100 statutory damages per violation remains an enticing prospect for plaintiffs. Accordingly, companies should still evaluate their marketing programs that include Washington State residents to ensure they are compliant.

Substantive Update From Recent Court Decisions

Most significantly, since our last update, federal courts in Washington are now questioning whether cases removed to federal court should be remanded for lack of Article III standing. See Liss v. Skechers USA Inc., No. 3:25-cv-05861-DGE, 2026 WL 1392327 (W.D. Wash. May 19, 2026); Nuri v. True Religion Apparel, No: 2:25-cv-00690-LK, 2026 WL 864886 (W.D. Wash. March 30, 2026); Montes v. Catalyst Brands LLC, No. 2:25-CV-0281-TOR, 2025 WL 3485827 (E.D. Wash. Dec. 4, 2025). This very issue is currently pending before the Ninth Circuit in Montes v. Penney OpCo, LLC, No. 25-8045 (9th Cir.). The outcome may shape whether many of these cases remain in federal court at all.

Courts have also begun ruling on other defenses, including whether the CAN-SPAM Act preempts CEMA and whether CEMA violates the U.S. Constitution’s dormant commerce clause. Federal courts presented with the preemption arguments have uniformly rejected them. See Agnew v. Macy’s Retail Holdings, LLC, 2026 WL 764140 (W.D. Wash. Mar. 18, 2026); Kempf v. Fullbeauty Brands Operations, LLC, 2026 WL 395677 (W.D. Wash. Feb. 12, 2026). Similarly, courts considering facial dormant commerce clause violations have rejected these defenses as well. See Repperger v. Ulta Salon, Cosmetics & Fragrance, No. 2:25-cv-00526-RLP, 2026 WL 1157157 (E.D. Wash. Apr. 28, 2026).

These recent decisions increase the risks associated with CEMA class actions in Washington. In assessing these potential defenses, defendants should keep in mind that neither issue has been decided by an appellate court and there may be unique factors that warrant consideration of each defense in a particular case.

CEMA remains an active litigation front for companies in Washington with new developments each passing month. Our Seattle-based attorneys are well positioned to advise clients on CEMA compliance, defend class actions, and help companies align marketing practices with evolving state and federal requirements.

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.