The latest ruling in Liss v. Skechers USA Inc., No. 3:25-CV-05861-DGE, 2026 WL 1392327 (W.D. Wash. May 19, 2026), keeps alive a proposed Washington class action challenging promotional email subject lines that allegedly used deadline-driven language to create artificial urgency around discounts. The plaintiffs alleged that Skechers sent commercial emails to Washington consumers with subject lines such as “Long Weekend Savings End Tonight,” “Today Only,” and similar “ends tonight” language, while allegedly continuing or extending the same discounts the next day or for several additional days. The complaint asserts a claim under Washington’s Commercial Electronic Mail Act (CEMA), which prohibits sending commercial emails to an address the sender knows or has reason to know is held by a Washington resident if the message’s subject line contains false or misleading information. Plaintiffs also plead a Washington Consumer Protection Act (CPA) claim, relying on the theory that a CEMA violation constitutes a per se CPA violation and can support statutory, treble-damages, injunctive, fee, and cost remedies.
Skechers moved to dismiss, arguing that the CEMA claim was preempted by the federal CAN-SPAM Act and that plaintiffs were attempting to impose liability for routine marketing practices, including extending sales beyond the originally advertised period. On May 19, 2026, a federal district court rejected the preemption argument, holding that CEMA’s subject-line provision falls within CAN-SPAM’s savings clause for state laws addressing falsity or deception in commercial email. The court further distinguished nonactionable puffery from factual representations about the duration, availability, terms, nature, or cost of a promotion, and concluded that plaintiffs’ allegations about sale-duration language fit within the kind of subject-line claim that CEMA governs. The court also held that plaintiffs did not need to plead all traditional fraud elements, such as scienter, reliance, and damages, to state a CEMA claim. Because the CEMA claim survived, the court allowed the derivative CPA claim to proceed as well.
The court’s order is a reminder that email subject lines are not just marketing copy. In Washington, they may be treated as regulated statements about the actual mechanics of an offer. Countdown language, “last chance” messaging, and automated extension campaigns should be aligned with promotion calendars, backend offer rules, and any planned extensions before deployment. For brands running high-volume email programs, the lesson is to make sure the urgency in the subject line matches the reality of the offer.
