Washington Amends CEMA: Plaintiffs Rush to File Actions Before June 11, 2026 Effective Date

A recent amendment to Washington’s Commercial Electronic Mail Act (CEMA), scheduled to take effect on June 11, 2026, has prompted a surge of class action filings.

The amendment revises the statutory standard for actionable violations and reduces statutory damages, spurring plaintiffs to file under the current, more plaintiff-friendly framework before the change becomes law.

CEMA regulates the sending of commercial electronic mail to Washington residents by prohibiting “false or misleading information” in subject lines. The statute does not define “false or misleading information,” nor does it require recipients to show reliance or actual damages resulting from the alleged “false or misleading information” in the subject line. CEMA also does not presently require that a commercial email sender have knowledge that the email subject line contains false or misleading information. As currently written, CEMA permits private civil actions in which successful plaintiffs may recover the greater of $500 per violation or actual damages.

A violation of CEMA is also a per se violation of Washington’s Consumer Protection Act (CPA), which broadly prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Under the CPA, a prevailing plaintiff may recover actual damages, attorneys’ fees and costs, and potentially treble damages up to a cap of $25,000.

Because CEMA does not define “false or misleading information,” courts have been tasked with interpreting its scope. In April 2025, in Brown v. Old Navy, LLC, the Supreme Court of Washington, answering a certified question from the United States District Court for the Western District of Washington, held that CEMA “prohibits the use of any false or misleading information in the subject line of a commercial email” and that “representations of fact—like the duration or availability of a promotion, its terms and nature, the cost of goods and other facts” on which Washington residents depend “in making their consumer decisions” are subject to CEMA’s subject-line standards. In doing so, the Court rejected earlier federal decisions that had limited CEMA’s prohibition to subject lines containing false or misleading information and extended the prohibition to reach false or misleading information in the body of the email itself.

Brown’s broad interpretation of the “false or misleading” requirement, combined with CEMA’s generous statutory damages provision of five hundred dollars per violation, has resulted in more than 100 actions being filed in the past year alleging CEMA violations, many of which are class actions.

Class action plaintiffs argue that CEMA’s statutory damages per violation equates to an award of statutory damages per each qualifying email received from a company for each member of the class action. By way of illustration, under the current statutory damages provision, a class action consisting of one thousand Washington residents where each class member received ten emails that violate CEMA could result in a cumulative award of $5,000,0000.

In an attempt to curtail the significant increase in class action CEMA cases in the wake of the Brown decision, the Washington legislature passed HB 2274. HB 2274 amends CEMA to include a knowledge requirement that the sender of the commercial email used “a subject line, which, based on the person’s actual knowledge or knowledge fairly implied on the basis of objective circumstances, contains false or misleading information in the subject line.” Additionally, to make CEMA’s statutory penalties less attractive to class actions, HB 2274 reduces CEMA’s statutory damages to one hundred dollars per violation. The amendment applies only to actions filed on or after June 11, 2026, regardless of when the cause of action arose. 

With the amendment’s June 11, 2026 effective date approaching, plaintiffs are accelerating filings to take advantage of the current statute’s less burdensome standard and potentially lucrative remedies. However, putting aside the amendment’s new knowledge requirement, the reduction in statutory damages still has the potential to result in large damage awards that can have a significant impact on retailers and other commercial entities found to have violated CEMA.

Using the same illustration discussed above, once statutory damages are reduced to one hundred dollars, the same class action consisting of one thousand Washington residents could result in a cumulative award of $1,000,0000. While the significant difference between the two statutory damages schemes is not inconsequential, the potential remains for a class action award to easily reach or exceed seven-figures, even under the amended statute.

Companies sending commercial emails should take note of CEMA’s current requirements and upcoming amendments to ensure their commercial emails are currently compliant with both versions, and starting on June 11, 2026, companies should focus their compliance efforts on the amended version. Additionally, companies that send solicited commercial emails to residents in states other than Washington should take note of similar statutes in other states, such as in Georgia, Maryland, South Dakota, Kansas, Utah, Wyoming, and Washington, D.C., as plaintiffs appear poised to file class actions under those state statutes, too.[1]

Epstein Becker & Green, P.C. can assist retailers and companies with litigation and compliance issues regarding CEMA, as well as assist with adopting compliance practices that align with other similar statutes enacted throughout the states.

Endnotes

[1] The laws in these jurisdictions apply only to solicited emails. Other jurisdictions, such as Indiana and North Dakota, have similar statutes that apply to unsolicited emails.