Law Conference of Champions Ticket Prices as I Type: $349.00 (and rising)
Washington’s Commercial Electronic Mail Act (CEMA) is one of the nation’s most dangerous telemarketing statutes– particularly because it applies to text messages even as the TCPA’s stranglehold on SMS begins to release.
But CEMA is dangerous for email is well.
A rash of new California CAN-SPAM complaints have been hammering small businesses but the Washington CEMA is even more dangerous– and federal courts want none of the surge in new filings.
We reported recently on Tommy Bahama trying to get into federal court by arguing the emails it sent consumers DID cause harm (bizarre right?)
Well last week baby merchant Caden Lane tried the same argument, trying to convince a federal court that the false or misleading subject line on emails it allegedly sent DID cause real life harm to consumers. The Court tossed the case anyway.
In Gautam v. Caden Lane 2026 WL 3093673 (W.D. Wa. Oct. 16, 2026) the Plaintiffs alleged Caden Lane “spammed them with emails containing subject lines that created a false sense of urgency regarding the duration or availability of promotional offers.”
That’s a little vague but you see what the court is getting at here– just because an email creates a false sense of urgency are you actually harmed?
Caden Lane said “yes” but the Court was simply not having it. The Complaint failed to allege that Plaintiff was actually harmed in any way as a result of the email and also did not allege the emails were unsolicited. In this context the Court found no concrete harm was established:
This Court concludes that the violation of the statutory provision at issue here marketing emails transmitted with misleading subject lines about the duration of promotional offers—is a technical or procedural violation that by itself does not manifest concrete injury beyond statutory damages.
Key to keep in mind– even though the conduct did not cause any real life harm the court implied statutory damages could still be awarded– just not in federal court.
So defendant (and its #biglaw counsel) lost more or less entirely. They’re stuck in state court, admitted fake urgency is a kind of harm, and are stuck with a ruling that they may owe statutory damages no matter what.
Bad bad bad.
But good good good– last week’s episode of Deserve to Win Ep. 53 with Chris Michelson of EnrollHere and MedicareCompliance .com! Make sure you’re approaching this year’s AEP with all engines firing. Catch Ep. 53 right now on YouTube, spotify, Apple and wherever else you get your podcasts!
Chat soon.
Quick update: Harbor Freight tools also hired #biglaw and also just lost this argument. See Bonetto v. Harbor Freight Tools, 2026 WL 3093292 (W.D. Wash. Oct. 16, 2026).
Second quick update: Walmart also just lost this argument (I didn’t look up their counsel.) See Chenderlin v. Walmart, Inc. 2026 WL 3093280 (W.D. Wash. Oct. 16, 2026).