Washington State has taken its first significant legislative step in nearly three decades to modernize the Commercial Electronic Mail Act (“CEMA”), enacting targeted reforms designed to curb the wave of opportunistic class action lawsuits that has engulfed retailers and consumer brands since a landmark Washington Supreme Court ruling in April 2025.
On March 23, 2026, Governor Bob Ferguson signed House Bill 2274 into law — the first major statutory amendment to CEMA since its original enactment in 1998. The new law takes effect on June 11, 2026. While the amendment reduces some of the most acute litigation pressure on businesses, it does not resolve the underlying structural tensions in the law, so the fight over CEMA scope is far from over.
What Is CEMA?
CEMA (RCW 19.190.010 et seq.) was enacted in 1998 during the dial-up internet era and prohibits commercial electronic mail messages to Washington State residents containing subject lines that either misrepresent the identity of the sender or contain “false or misleading information.”
Intended to protect Washingtonians from deceptive, anonymous spammers, CEMA’s enforcement teeth are formidable. Each violating email is a separate $500 statutory damages claim, with no requirement to prove actual harm. A CEMA violation is also a per se violation of Washington’s Consumer Protection Act (CPA), which adds treble damages — transforming $500 into $1,500 for each email, for each recipient. With large retail campaigns reaching hundreds of thousands of subscribers, theoretical exposure can reach astronomical proportions.
For most of its existence, CEMA generated minimal litigation. That changed dramatically in 2025.
Brown v. Old Navy, LLC
The litigation that set off the current crisis began with a CEMA class action lawsuit filed in the Western District of Washington against retailer Old Navy for sending promotional emails with subject lines that allegedly conveyed a false sense of urgency. The plaintiffs alleged that Old Navy routinely sent emails indicating sales were ending on a specific date, only to extend those promotions beyond the stated deadline.
The case raised a threshold question that the federal district court certified to the Washington Supreme Court: Does CEMA’s prohibition on “false or misleading information in the subject line” reach any false or misleading subject-line content, or only content that deceives recipients about whether the email is a commercial solicitation? Old Navy argued for the narrower reading; plaintiffs pushed the plain-text, broader interpretation.
On April 17, 2025, the Washington Supreme Court narrowly decided Brown v. Old Navy, LLC for the plaintiffs, ruling that CEMA’s language is unambiguous: the statute prohibits commercial emails containing any false or misleading subject-line information, regardless of whether it relates to the email’s commercial nature.
The four-justice dissent warned that the majority had dramatically extended a statute originally aimed at anonymous spammers, not legitimate retailers, and would impose liability wildly disproportionate to any real consumer harm. The dissent was correct; the decision opened the floodgates to a litigation tsunami.
Why Brown Opened the CEMA Floodgates
Because CEMA imposes strict liability — plaintiffs need not show they opened, read, or relied on an email, or suffered any actual harm — Brown created a litigation structure ideally suited to mass class action filings. A sale promoted as ending “tonight” that runs through the weekend, a “limited time” offer that is perpetually renewed, a “final hours” countdown that resets, even an innocent typo: all potentially actionable.
The financial math was alarming. A campaign sent to 100,000 Washington subscribers, at $500 per email, yields $50 million in statutory damages before trebling. Within months of the decision, dozens of putative class actions flooded into Washington courts. By the time the 2026 legislative session convened, over 60 such suits were pending in the Western District of Washington alone against household-name brands
The Post-Brown CEMA Litigation Landscape
Post-Brown complaints generally allege one or more of the following:
- False urgency: Sales advertised as expiring on a date that was then extended
- Inflated discounts: Discounts off purported “original” prices that were allegedly sham retail prices
- Fake scarcity: Subject lines suggesting limited product availability that was not genuinely constrained
In many cases, plaintiffs do not claim they ever saw or read the email, let alone relied on it or suffered harm. Because CEMA supplies a per se CPA violation, plaintiffs attempt to bypass pleading reliance entirely.
The Legislative Response: HB 2274
Facing what business groups called an “escalating litigation crisis,” lawmakers introduced HB 2274, which was passed by the Washington Senate on March 6, 2026, and signed into law by Governor Ferguson on March 23, 2026. HB 2274 makes two core substantive changes:
- Reduced statutory damages: Per-violation damages drop from $500 to $100 per email (or actual damages, whichever is greater); the $1,000 per-violation figure for interactive computer services is unchanged.
- Knowledge standard: A “knew or reasonably should have known” knowledge requirement has replaced the previous strict-liability regime, providing a good-faith defense for senders who use standard promotional language without awareness it would be deemed misleading.
Not Enough to Stem the Tide
HB 2274 does not apply retroactively, meaning the 60-plus pending class actions currently pending in the Western District of Washington will proceed under the old $500/strict-liability framework.
The amendment also does not: (1) Eliminate subject-line litigation; (2) Require proof of actual harm, reliance, or materiality; (3) Remove CEMA violations as per se CPA violations; or (4) Address CEMA’s private right of action. This means CEMA will remain an attractive source of revenue for class action firms, although less lucrative than before.
However, the 2026 legislative session was a short 60-days, limiting what could be achieved. More comprehensive reform is expected to be pursued in the longer 105-day 2027 session.
Implications and What Comes Next
The CEMA episode mirrors a recurring pattern, paralleling the TCPA in robocalling and text messaging, and wiretap lawsuits triggered by online session replay software: statutes from an earlier era applied to modern commerce in ways far exceeding original legislative intent, producing a compliance and litigation crisis that only legislative correction can cure.
For businesses marketing to Washington residents, compliance adjustments remain essential regardless of the amendment: subject lines should be reviewed for accuracy in sale-duration claims, discount representations, and urgency-based framing; advertised “original” prices should be verified; and sale periods should be honored as stated.
