Manatt, Phelps & Phillips, LLP

Email subject lines have been the subject of several lawsuits in the past several years under state spam laws. Most recently, the Washington Commercial Electronic Mail Act (CEMA) has been used as the basis of two class action lawsuits involving email subject lines that promoted discount offers from retailers Carter’s Inc. and Eddie Bauer LLC. In both lawsuits, plaintiffs claimed the “percentage off” language in the subject lines of the retailers’ emails is misleading, in violation of CEMA and/or the Washington Consumer Protection Act (CPA).

In the more recent case, against Eddie Bauer, a Washington consumer allegedly received 43 emails since November 2017 from the retailer containing subject lines offering discounts, such as:

Ho-Ho-Whoa! 50% Off Everything
Starts Today! 40% Off Everything
50% Off Everything? This is MADNESS!

The plaintiff is seeking statutory damages of $500 per email per recipient, estimated to be over $1 billion in damages, plus interest and attorneys’ fees.

After moving the case from a more plaintiff-friendly state court to the U.S. District Court for the Western District of Washington, Eddie Bauer moved to dismiss the lawsuit arguing that the “subject lines, which inform customers about promotional pricing, accurately characterize the subject matter of the emails.” In its motion, the company accused the plaintiff of attempting to “strap booster-rockets onto a defective false advertising claim by linking it to a liquidated claim under CEMA.”

Notable in Eddie Bauer’s dismissal motion is the company’s contention that email subject lines should be reviewed under the CPA’s standard for false advertisements that requires the plaintiff to “prove an injury to business or property and actual damage.” Because the plaintiff could have deleted or opted out of receiving future emails, the company alleged that the plaintiff incurred no actual damages.

On the other hand, CEMA does not require proof of injury and allows plaintiffs to recover statutory damages.

Why it matters: Marketers routinely use “percentage off” or similar discount offer email subject lines. If the court rejects Eddie Bauer’s argument that advertising messages in email subject lines should be subject to standard UDAP standards and not state spam laws that include a broad prohibition of false and misleading information in the subject line, then marketers will need to reevaluate their current email marketing practices and potentially take a more conservative approach in using subject lines, at least in Washington.

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