Email marketing is an undeniably popular and effective way for retailers to reach their customers. Emails drive massive amounts of website traffic. But as shown by a recent decision from the Washington Supreme Court construing the state’s Commercial Electronic Mail Act, email marketing is also driving a cottage industry of consumer class actions over allegedly “misleading” email subject lines – and the issue isn’t limited to Washington.
Similar verbiage is found in comparable laws in several states, including California and Florida. Significantly, because these suits are based on state consumer statutes that often contain a “per violation” penalty, potential exposure is catastrophic.
Recent Proliferation of Deceptive Email Subject Line Lawsuits
Over the past few months, putative class action lawsuits over allegedly deceptive email subject lines have spiked. Many of these lawsuits take issue with subject lines creating a false sense of urgency because the underlying promotions actually extended beyond those deadlines.
For example, in the Washington case, plaintiffs challenged subject lines such as “Today Only!” and “Three Days Only!”, arguing the sales weren’t actually ending on the date promoted in the email. Other suits are further derivatives of “false pricing” lawsuits, seeking relief for email headings advertising a discount when in fact the reference price has not been the prevailing price within the past 90 days.
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Not surprisingly, we’ve seen a majority of these cases filed in California. Some of them are under California’s consumer protection law, but others reference Washington’s law. Suits have been filed in both state and federal courts. Because similar laws exist in multiple states, a single email blast has the potential to generate suits in multiple jurisdictions seeking nationwide relief, most likely in consumer-friendly venues such as California, Washington or Oregon.
Deceptive Email Laws
Washington’s and Florida’s laws actually have the same prohibition for emails containing “false or misleading information in the subject line” and similar $500 per email penalties. California bans email subject lines that are “likely to mislead” recipients “about a material fact regarding the contents or subject matter of the message.”
The reason for the similarities among states is that these statutes were enacted as state-specific versions of the federal CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography And Marketing Act) enacted in 2003. While much has changed in the world of ecommerce since then, many of these statutes remain on the books, providing fertile ground for creative lawyers.
Proactive Strategies for Retailers
Like most putative class actions, these lawsuits are not expected to progress to trial, but defending them nevertheless will be a costly nuisance that can distract retailers from their main business. In the case of deceptive emails, the best defense is to make sure your email subject lines are not misleading or deceptive – if a sale is not slated to end at a certain time, then your email should not say it will.
Of course, there are frequently times when a sale will be planned to end and may be extended for valid business reasons: evidence supporting this will be useful to defend or resolve the suit early on. Similarly, if a discount is advertised in the subject line, the reference price from which the discount or percentage off is calculated must generally have been the prevailing price within the past 90 days.
At this point, there is no binding appellate case law on the issue, and no specific “magic words” to use to avoid a suit. And while “false or misleading” and “likely to mislead” are not crystal-clear guidelines, marketing teams should be cautious in their email header scripts.
It is also important to keep in mind that deception in the subject line may not be cured by any fine print or disclaimers in the body of the email. Likewise, including an asterisk in the email may not be sufficient. In terms of subject lines, the best defense will be supportable and accurate messaging.
Savvy retailers can, however, incorporate class action waiver and/or arbitration provisions into their terms of service. This is most easily done with online sales, but can be accomplished in-store through the terms and conditions of a loyalty or rewards program.
Conclusion
The rising number of consumer class action lawsuits over allegedly deceptive email subject lines presents a substantial challenge for retailers, but one that can be overcome by understanding the governing laws and implementing compliant marketing strategies. Retailers that treat email subject lines as legal risk – and not just marketing copy – will be best positioned to avoid becoming the next test case. Consulting with experienced counsel regarding the above strategies can help prevent these lawsuits and minimize any impact even if such a suit is threatened.
Ellen S. Robbins is Akerman’s senior go-to trial lawyer on the West Coast, with extensive experience litigating disputes in both state and federal court on behalf of public and private companies all over the world. She focuses her practice on a wide variety of complex commercial disputes and aggressively and strategically promotes her clients’ interests through litigation, alternative dispute resolution, or business resolutions. Scott Allbright is Special Counsel, Litigation and has significant litigation experience in state and federal courts across the U.S. Within Akerman’s Litigation Practice Group, he concentrates on complex issues affecting public and private companies. His work includes breach of contract, fraud, class actions, unjust enrichment, unfair competition, deceptive pricing, and insurance coverage.
