Misleading Email — WA CEMA

Understanding the trend

What is this trend?

Washington's Commercial Electronic Mail Act (RCW 19.190.020) makes it unlawful to send a commercial email to a Washington resident with a subject line that misrepresents any material fact about the message — most often a sale or discount deadline. Each violation carries a $500 statutory damages floor that pairs with the Washington Consumer Protection Act (RCW 19.86), enabling treble damages and attorneys' fees. The recent wave of cases centers on retail marketing emails with deceptive 'limited-time' subject lines.

What caused it

Plaintiffs' firms — led by Terrell Marshall / Berger Montague, Strauss Borrelli / Cohenmalad / Stranch Jennings, Emery Reddy / Milberg Coleman, Dovel & Luner, and KJC Law Group — discovered that retail email marketing platforms (Klaviyo, Salesforce Marketing Cloud, Bluecore) routinely produce 'flash sale ends midnight!' subject lines whose underlying promotions are extended or repeated days later. Captured email archives (Archive.org, Milled, on-platform receipts) give plaintiffs a clean per-email exhibit, and CEMA's $500-per-email floor makes even small lists economically viable. Maryland's near-identical analog statute (Md. Code Comm. Law §14-3001) opened a second venue in 2025.

Practices driving the lawsuits

• Promotional emails with 'Last Hours!', 'Today Only!', 'Final Hours', 'Ends Midnight', or 'Sale ends [date]' subject lines where the same sale runs again the next day or week.
• Countdown timer subject lines and 'Up to N% off' claims that survive past the stated cutoff.
• 'Free gift' or 'free shipping' subject lines where the promotion requires a minimum purchase or other condition only disclosed inside the email body.
• Repeated re-sends of the same deceptive subject line over weeks/months, producing per-email statutory damages stacks.
• Marketing cloud automations that recycle 'limited-time' templates without verifying the underlying offer cadence.