• by Ray Schultz , Columnist, Yesterday

Email marketers who use subject lines saying “Last Chance,” or “The Sale Ends Today,” must have been pleased when Washington state legislators added an amendment to the Consumer Electronic Mail Act (CEMA) earlier this year. 

The change took place in the context of a wave of consumer class action suits over urgent-sounding subject lines and other purported email offenses.  

Reacting to business concerns, the state softened CEMA so that a defendant in a misleading subject line case would have to have “actual knowledge or knowledge fairly implied on the basis of objective circumstances.” On other words, marketers could get the benefit of the doubt if they extend a sale beyond the deadline. 

Moreover, the amendment reduced the statutory damages from $500 to $100 for each email. 

But don’t take this as a free pass, the law firm of McDermott Will & Schulte warns in an article on its site. 

For one thing, marketers who persistently use such subject lines could still run into trouble. 

“That will make the facts behind a campaign more important and could allow for stronger arguments based on pleading standards,” the law firm points out. “Plaintiffs, however, are likely to argue that repeated or standardized promotional practices supply the ‘objective circumstances’ needed to imply knowledge.”

But the express knowledge requirement should make it harder for plaintiffs to rely only on the fact that a promotion was extended. 

However, even with lower damages, firms could still face a financial bite.  

“The damages reduction is important, but plaintiffs still have an incentive to plead huge aggregate damages theories,” the article states. “Certain high-volume email campaigns could still create substantial exposure at $100 per email.” 

The law firm continues, “Plaintiffs also will likely continue pairing CEMA claims with Washington Consumer Protection Act theories that seek fees, injunctive relief, and treble damages. The amendment leaves existing case law intact on elements unrelated to knowledge. In short, the amendment is meaningful, but it does not eliminate the features that made CEMA attractive to plaintiffs.”

Overall, reputable brands might be in less danger. But don’t count on it. 

“CEMA should not be viewed as a one-off email statute or a purely local Washington issue,” McDermott Will & Schulte concludes. “For many defendants, particularly retailers operating multiple brands, CEMA claims are arriving as part of a broader, coordinated wave of litigation targeting marketing communications, pricing practices, website technology, and consumer outreach. A marketing campaign can create litigation risk under a range of consumer protection, anti-spam/non-solicitation, and privacy statutes in various jurisdictions.”

It pays to take a holistic view of all your marketing practices.  

The full article can be accessed here.