• by Ray Schultz , Columnist, Yesterday

Email marketers may be on the verge of being saved from a major hassle and liability. 

The Ninth Circuit Court of Appeals is about to weigh in on one of the innumerable class action suits filed in the State of Washington against email senders for allegedly fake deadlines.  

Shawna Montes sued Penney OpCo, owner of the Penney retail chain, claiming violations of the state’s Commercial Electronic Mail Act (CEMA) in 2025. The case was thrown out by a federal judge later that year because the consumer lacked standing to sue in federal court, although she could still sue in state court. Montes has appealed, but it is being challenged by Penney on two grounds, according to the legal site JD Supra, which calls this “a quickly evolving area of law.”

First, Montes “failed to allege that she saw or relied upon any of the e-mails, or was injured due to such reliance, her claims cannot satisfy the elements of traditional misrepresentation tort and are preempted by CAN-SPAM,” JD Supra writes. 

That’s the point. The plaintiffs in many of these cases may not have even received these emails and none could have been swindled in any way. So you have to ask: What’s the damage?

Indeed, U.S. District Judge Thomas O. Rice wrote in his ruling, “Plaintiff requests an injunction to prevent Defendants from sending additional misleading or false information in their email subject lines. If receipt of an email is not a concrete injury, then this request for remedy is not a solution. An injunction will not remedy any harm because there is not an alleged concrete harm to remedy.”. 

The other argument is that Montes “failed to state a plausible claim for relief.” No class has been properly certified, the judge observed.  

A decision upholding the CAN-SPAM preemption alone could wipe out many of the pending lawsuits and slow down filing of future ones, JD Supra notes.

There certainly have been several suits filed, one of the most recent ones being against Club Med. Then there are those against Skechers, the giant sneaker firm, and Pods, a moving and storage firm. Costco settled the case against it for $14 million. 

What does JD Supra say you should do? It states that “companies engaged in email marketing should monitor litigation in this space and review their marketing campaigns, email opt-in/consent mechanisms and language, and website Terms of Service and consider including or updating arbitration clauses and class action waivers. If they are facing a live case, they should also evaluate trying to stay their case while the Ninth Circuit considers these issues.”

Let’s hope that the Ninth Circuit throws this case right out.