Washington’s Commercial Electronic Mail Act (CEMA) prohibits sending commercial emails to Washington residents that contain false or misleading information in the subject line. Given the availability of $500 in statutory damages per violation, consumer class actions challenging aggressive marketing emails have become common. The conduct at issue typically involves subject lines such as “Today only!” or “Ends in hours!” used to promote sales that in fact continue for days or reappear shortly after their purported expiration. Plaintiffs contend that this messaging manufactures a sense of urgency to induce consumers to make purchases they otherwise might not have.
Defendants in these cases have sought dismissal on two principal grounds. First, some argue that federal law, specifically the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, preempts CEMA. So far, district courts have rejected this argument, holding that CAN-SPAM explicitly permits
