What's Going on with CEMA?

Washington lawmakers are looking to scale back damages available to plaintiffs under the state’s anti-spam law, the Commercial Electronic Mail Act (“CEMA”)—a development that could potentially reshape the recent but ongoing wave of litigation related commercial email practices.  Specifically, legislators introduced HB 2274 (and its companion bill SB 5876) in early January, seeking to amend CEMA.  Last week, legislators in the state house and senate voted to approve the bills, which would reduce the statutory damages available to plaintiffs from $500 per violation, to $100 per violation.  Under the law, each email sent to a Washington resident constitutes a violation.

These bills come amid a surge in lawsuits following a Washington Supreme Court decision in Brown v. Old Navy, LLC, in April 2025, in which the state’s highest court ruled that CEMA prohibits the use of any false or misleading information in the subject line of a commercial email.  (We blogged about that decision and its impact on litigation under CEMA here.)  While CEMA has been in effect since 1998, litigation asserting violations of the law was rare until the court’s decision in 2025—in which the court broadly interpreted CEMA—effectively opened the floodgates.

In response to the onslaught of lawsuits filed against companies that send promotional emails, defendants have made creative arguments, including that CEMA violates the dormant Commerce Clause of the Constitution, and that it is preempted by the federal CAN-SPAM Act, which also regulates commercial emails.  However, the federal courts that have considered these arguments have largely rejected them.

What's Next?

The legislation now heads to the governor’s desk for signature.  Whether or not this amendment (which includes just a fraction of the original proposed changes to the law) can stem the tide of litigation remains to be seen.