• by Ray Schultz , Columnist, July 8, 2019

Email subject lines are once again at the center of a nasty legal dispute.

Consumer Jennifer Harbers filed suit in May, accusing retailer Eddie Bauer of using misleading subject lines, in alleged violation of the Washington Commercial Electronic Mail Act (CEMA) and the Washington Consumer Protection Act (CPA).

Eddie Bauer quickly responded with a motion to dismiss the class action suit.  

The case has been removed from The King County Superior Court to the U.S. District Court for the Western District of Washington, but Harbers is trying to get it restored to the presumably more sympathetic local court.

Harbers charges that since December 2017, she received 43 emails containing misleading  subject lines on “purported percentage-off discounts.”

Among these allegedly false lines were: 

Ho-Ho-Whoa! 50% Off Everything

Starts Today! 40% Off Everything

50% Off Everything? This Is MADNESS!

Oooh! Ahhh! Everything's 50% Off50

50% Off E-V-E-R-Y-T-H-I-N-G!

Harbers thought, “as would an ordinary and reasonable consumer,” that the “xx% Off” statements were a percentage off the price at which Eddie Bauer previously offered its products in good faith for a significant period of time,” the complaint states.

She also assumed that “all of the products offered at Eddie Bauer’s stores and on its website were being offered at a discount. “ In reality, sleeping bags, tents and non-Eddie Bauer branded products were excluded, she alleges.

Harbers contends that she and each class member are entitled to $500 per email, a figure that could add up to $25 million for each of the 43 emails.

Attorneys for Bauer counter that “Harbers has construed CEMA as a legislative declaration of nuclear war on email subject lines.”

Add it all up, and  Harbers is seeking “nearly $1.1 BILLION for herself and other persons who received commercial emails from Eddie Bauer,” they argue. “Her actual damages are $0.00. “

The motion goes on to state that Harbers “provides no information about her own shopping history at Eddie Bauer, if she has any, and does not explain how she came to receive the emails.”

In addition, Harbors does not “claim to have read the content of the emails, or to have even opened them.”

The motion concludes that the subject lines  “accurately characterize the subject matter of the emails,” and that Eddie Bauer’s do not qualify as spam under CEMA.

It is not yet clear how far this will go. In some such cases, corporate defendants will reach a negotiated settlement simply to get rid of the annoyance.

Or, Eddie Bauer could fight this to the end, realizing that any settlement could open the door to a plethora of frivolous lawsuits.

Let’s remember that Harbers' counsel, the firm of Hattis & Lukacs, Bellevue, Washington, recently filed a similar suit against the baby clothing retailer Carter’s, alleging that it violated CEMA.

According to that complaint, Maribell Aguilar, a Yakima County consumer, received an email from Carter’s with this subject line: “50-70% OFF EVERYTHING.”

Aguilar understood that to mean that “Carter’s was offering items at prices in its retail stores and on its website which were 50% to 70% lower than Carter’s own regular or prevailing prices for those items,” the complaint states.

This raises two questions:

1. Are these guys email ambulance chasers?
2. Will these arguments have legs outside of the state of Washington?

Legislators might view this as an excuse to write even more restrictive legislation. AGs may even look into it.. And rightly or wrongly, retailers may end up having to tamp down their exuberant claims of 50% on everything.