In April, the Washington Supreme Court issued a significant decision in a class action lawsuit accusing Old Navy of sending emails that included false or misleading information about the duration of sales. The Court determined that including such information in the emails’ subject lines violated the state’s Commercial Electronic Mail Act (or “CEMA”).
Last week, plaintiffs filed a similar lawsuit against Sketchers, arguing that many of the company’s email campaigns violate CEMA. The plaintiffs allege that Skechers created a “false sense of urgency” by using email subject lines claiming that sales were about to end when the company would routinely extend the sales.
For example, on May 26, Sketchers sent an email announcing that a Memorial Day sale would end “tonight” and offering an additional discount through the end of the day. The next day, though, the company extended the sale and discount. The complaint includes various other examples of emails announcing that a sale would end followed by a similar extension.
The plaintiffs seek $1,500 in damages for each email that violates CEMA. According to the complaint, Sketchers sends an average of at least 388 emails per year. It’s not clear how many of those emails include allegedly deceptive subject lines. Because the class is likely to include thousands of consumers, though, the alleged damages could add up quickly.
Companies should be careful to ensure that the subject lines of their emails are not misleading in any regard, particularly when communicating with residents of Washington. The risks are likely highest in cases like this one when companies announce that sales will last for a limited time and then later extend them.
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