Today, the Ecommerce Innovation Alliance (EIA) joined the Washington Retail Association (WRA) and business leaders from across the state to advocate for an end of frivolous email litigation under Washington’s Commercial Electronic Mail Act (CEMA).
In a hearing before the House Consumer Protection and Business Committee, EIA President & CEO David Carter delivered crucial testimony in support of HB 2274, a bipartisan bill that EIA helped WRA craft in order to fix a quickly escalating litigation crisis impacting ecommerce businesses nationwide.
The Crisis: When “Last Chance” Means a Lawsuit
Since the Washington Supreme Court’s decision in Brown v. Old Navy in April 2025, Washington’s anti-spam statute has been weaponized. A law originally written in 1998 to protect consumers from deceptive, anonymous spammers is now being used to punish legitimate businesses for standard marketing practices.
The Court’s ruling created a strict liability standard where any technical inaccuracy in an email subject line—such as a sale being extended after a “deadline”—can trigger statutory damages of $500 per email. Crucially, plaintiffs do not need to show they opened the email, read it, or were harmed in any way.
The result has been an explosion of predatory litigation. In just six months, 75 lawsuits have been filed against retailers, driven largely by out-of-state law firms seeking massive settlements for technicalities that caused no consumer injury.
The Hearing: A Broad Coalition for Reform
At today’s hearing, the EIA joined a broad coalition, including Washington Retail Association (WRA), the Association of Washington Business (AWB), and representatives from the hospitality industry, to urge the Committee to pass HB 2274. This legislation would restore sanity to the law by introducing a “materiality” requirement and ensuring that statutory damages are reserved for consumers who are actually harmed by deception.
In his testimony, EIA’s David Carter highlighted the devastating impact this legal environment has on small businesses, sharing the hypothetical but all-too-realistic story of a “stay-at-home mom” running an online boutique.
“She operates out of her garage… sends an email with the subject line: ‘Flash Sale Ends Midnight.’ At 11 PM, realizing she still has excess inventory… she decides to extend the sale… Under the current interpretation of CEMA, that act of extending the sale renders her ‘Midnight’ subject line retroactively ‘misleading.’… She has just created a class action liability of one million dollars.”
Carter emphasized that these lawsuits are not about consumer protection, but about exploiting ambiguity.
The “Glass House” of Political Fundraising
Carter also drew a sharp contrast between the standards applied to businesses and those used in political fundraising. He asked Committee members to reflect on their own “Midnight Deadline” fundraising emails sent during election cycles—deadlines often set for momentum rather than legal necessity.
“If you think that CEMA is a fair system… then I would implore you . . . to extend it… to include political solicitation emails. If not, then I urge you to support HB 2274.”
What HB 2274 Does
The proposed amendments are simple and fair. They do not strip away protections for consumers who are misled. Instead, they:
- Require Materiality: Ensure that actionable misrepresentations are those that actually matter to a reasonable consumer.
- Require Harm for Statutory Damages: Prevent windfalls for plaintiffs who never opened or relied on the email.
Next Steps
The EIA is committed to seeing this legislation through. We cannot allow Washington to become a jurisdiction where a harmless email subject line carries a death sentence for small businesses.
We thank Chair Walen and Ranking Member McClintock for hearing our testimony, and we thank our partners at the Washington Retail Association and Meegan Brooks of Benesch Law for their leadership on this critical issue.
Join the EIA today to help strengthen and shape policies that affect all ecommerce businesses. Together, we can continue to create the future of ecommerce. Subscribe to EIA email updates to stay informed on key developments and their impact on your business.
