CEMA Expands Liability For Text-Based Referral Marketing In Washington

Plaintiffs' attorneys are increasingly turning to Washington's CEMA to challenge text-based refer-afriend programs, drawn by its broad liability standards, statutory damages, and fee-shifting provisions.

Anew wave of class action litigation is emerging under Washington State's Consumer Electronic Mail Act (CEMA), targeting companies that utilize refer-a-friend marketing programs via text message. CEMA's expansive liability framework -- combined with statutory damages of $500 per violation and the availability of attorneys' fees -- has made it an increasingly attractive tool for plaintiffs' counsel.

CEMA vs. TCPA: A broader liability framework

The federal Telephone Consumer Protection Act (TCPA), enacted to curb unwanted telemarketing, has long governed text message marketing. Under the TCPA, marketing texts sent via an automated telephone dialing system (ATDS) require prior express written consent, while informational texts require prior express consent. TCPA