As our readers know, Washington’s Commercial Electronic Mail Act (“CEMA”) has become a fertile battleground for lawsuits involving CEMA email claims. Below, we discuss a complaint alleging CEMA email claims against a leather goods company and what you should do in the event that you become the target of a CEMA email lawsuit.
CEMA Email Allegations Discussed
In Post v. Dooney & Bourke, Inc. (“D&B”), Plaintiff, on behalf of herself and a putative class, alleged that D&B violated CEMA by sending false and misleading email marketing messages to Washington State residents. Specifically, Plaintiff asserted that D&B knowingly sent email to Washington-based consumers containing, among other things, subject lines that: (1) created a false sense of urgency for consumers to act on certain promotions; and (2) misrepresented the timing and availability of these promotional offers. By way of example, the Complaint alleged that D&B sent consumers the following email advertising one of its sales: “Time is Running Out . . . Early Access Ends Tonight!” According to the Complaint, the following day, D&B sent the same consumers an email message informing them that early access to the sale was extended an additional day. As alleged in the Complaint, this email communication violated CEMA because it created a false sense of urgency for consumers to participate in D&B’s promotional sale before an artificial deadline which D&B then extended the following day. In addition to this email, the Complaint identified ten other allegedly CEMA-violative email messages sent to consumers. As a result, Plaintiff now seeks to represent a class of all Washington State residents holding an email address to which D&B sent or caused to be sent the email identified in the Complaint.
What Should You Do If Threatened With CEMA Email Violation Claims?
Our readers may recall a recent piece in which we discussed, among other things, CEMA and its imposition of strict liability for any inaccuracy in commercial email sent to Washington State consumers. The D&B lawsuit is further evidence of the perils companies face when delivering email marketing to Washington-based consumers. The mere receipt of email containing false or misleading subject lines triggers statutory penalties of $500 per message under CEMA. As illustrated by the case discussed above, CEMA email lawsuits typically are brought on a class action basis, which can be extremely costly for companies to defend, especially if they are found liable for statutory violations.
CEMA presents yet another complicating factor to consider as part of your marketing communications and compliance practices.
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