Washington state has seen a surge of class action lawsuits under its Commercial Electronic Mail Act (CEMA), ch. 19.190 RCW, following the Washington Supreme Court's decision in Brown v. Old Navy. That decision significantly expanded the scope of what may constitute a "false or misleading" commercial email, opening the door to a wave of litigation challenging routine marketing emails based on subject lines alone.

In an attempt to stem this rising tide of litigation, the Washington Legislature amended CEMA in March 2026. The amendments, which took effect on June 11, 2026, substantially narrow the incentives for CEMA litigation by reducing statutory damages from $500 to $100 per violation and eliminating the prior strict liability framework. As amended, plaintiffs must now establish that a sender knowingly used a false or misleading subject line. Together, these changes make CEMA claims less attractive by reducing potential recoveries while requiring proof of a culpable mental state.

At the same time, Washington's federal courts have increasingly scrutinized whether CEMA plaintiffs can satisfy Article III standing. To establish standing, "a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.”  TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). Applying these principles, a federal Washington court held in Montes v. Catalyst Brands LLC that a plaintiff asserting CEMA claims lacked Article III standing because she failed to allege a concrete injury. Montes v. Catalyst Brands LLC, 2025 WL 3485827, *2-3 (E.D. Wash. Dec. 4, 2025).

Montes is currently on appeal at the Ninth Circuit and will provide important guidance on this issue. In the interim, Washington federal courts have been staying CEMA cases with increasing frequency. See, e.g., Shahpur v. Ulta Salon, Case No. 2:25-cv-00284 (E.D. Wash.); Repperger v. Ulta Salon, Case No. 25-cv-00526-RLP (E.D. Wash.), Maxwell v. Ulta Salon, Case No. 26-cv-0084-RLP (E.D. Wash.). In fact, we are seeing federal Washington judges issue orders to show cause directing the parties to explain why CEMA actions should not be stayed pending the Ninth Circuit’s forthcoming decision Montes. See, e.g., Meadows v. Lands’ End, Inc., Case No. 3:25-cv-05841-BHS and Ma v. Nike, Case No. 2:25-cv-01235.  

Faced with legislative reform and mounting procedural hurdles in Washington, plaintiffs' firms are adapting their filing strategies. As we discussed in our prior blog post, they are increasingly turning to other jurisdictions with consumer protection statutes that regulate commercial email practices, including California, Florida, Indiana, and Maryland. 

Thus, email subject lines remain an active litigation front despite Washington's recent reforms. Businesses should continue reviewing their marketing practices for compliance with evolving state and federal requirements while monitoring developments in the Ninth Circuit and beyond. Our advertising and class action defense team is closely following these trends and is well positioned to advise clients on compliance and to defend email marketing class actions.