The Washington Supreme Court’s decision in Brown v. Old Navy LLC, 4 Wash.3d 580 (2025) has sparked a wave of putative class actions under Washington’s Commercial Electronic Mail Act (“CEMA”), targeting allegedly misleading email subject lines used by national retailers. In the months since, defendants have increasingly turned to constitutional and federal preemption defenses in an effort to stem this growing tide of litigation. To date, however, those arguments have gained little traction. Several district court decisions have denied defendants’ motions to dismiss on these grounds.
District Courts Reject CAN‑SPAM Preemption Arguments
Retailers have argued that the federal CAN‑SPAM Act preempts CEMA’s subject line provision prohibiting “false or misleading information in the subject line.” Defendants have relied on the Ninth Circuit’s decision in Gordon v. Virtumondo, Inc., where the court held that plaintiff’s CEMA claims were preempted because the fanciful domain names for which plaintiffs sought to impose liability did not fall within CAN-SPAM’s express savings clause for state laws prohibiting “falsity or deception” in “any portion of a commercial electronic mail message or information attached thereto.” 15 U.S.C. § 7707(b)(1).
Recent district court decisions, however, have largely rejected this argument as applied to CEMA claims challenging false or misleading subject lines. See Shahpur et al. v. Ulta Salon, Cosmetics & Fragrance, Inc., 2026 WL 571122 (E.D. Wash. Feb. 27, 2026); Kempf v. Fullbeauty Brands Operations, LLC, 2026 WL 395677 (W.D. Wash. Feb. 12, 2026); Ma v. Nike, Inc., 2026 WL 100731 (W.D. Wash. Jan. 14, 2026); Harrington v. Vineyard Vines, LLC, 2025 WL 3677479 (W.D. Wash. Dec. 18, 2025).
These decisions have distinguished Virtumondo’s preemption holding on two grounds. Several courts have noted Virtumondo addressed whether CAN-SPAM preempted a different subsection of CEMA—one prohibiting the use of a third party’s domain name without permission—rather than the statute’s subject line provision. Others have observed that Virtumondo arose in a different factual context, involving claims premised on technical aspects of email header information. By contrast, the current wave of cases challenges the promotional representations conveyed to consumers in subject lines.
Dormant Commerce Clause Challenges Fare No Better
Defendants have also argued that applying CEMA to nationwide email marketing campaigns violates the dormant Commerce Clause by differentiating between in-state and out-of-state interests, regulating conduct occurring outside of Washington, and imposing an undue burden on interstate commerce. Lower federal courts have consistently rejected these arguments, too, relying on the Washington Supreme Court’s decision in State v. Heckel, 143 Wash. 2d 824 (2001), which upheld CEMA’s application to misleading subject lines and the use of a third party domain name without permission against a dormant Commerce Clause challenge. Courts further have held that increased compliance costs—such as tailoring subject lines or filtering recipient lists by state—are insufficient to establish a “significant” or “substantial” burden on interstate commerce.
Business Implications
Taken together, these rulings suggest that constitutional and preemption defenses are unlikely to be successful in dismissing actions pleading CEMA claims based on deceptive email subject line allegations. With courts permitting these cases to proceed past the pleading stage, retailers and other businesses that engage in email marketing to Washington residents or those in jurisdictions with similar anti-spam laws face continued exposure. As litigation continues to evolve, businesses should carefully review email subject line practices—particularly promotional language that conveys urgency, scarcity, or time‑limited offers—and assess whether those representations are accurate.