On 18 September, US District Judge Barbara J. Rothstein remanded three class actions brought under Washington’s Commercial Electronic Mail Act to King County Superior Court. The defendants are PacSun, Tommy Bahama and Bebe Stores.
Each case alleges marketing emails with subject lines that created a false sense of urgency about the length or availability of promotions. Each was filed in state court and moved to federal court by the retailer. Rothstein raised the question of jurisdiction herself. The State of Washington has intervened as a plaintiff in the Tommy Bahama and Bebe cases.
The ruling turns on Article III of the US Constitution. A federal court can hear a case only if the plaintiff has suffered a concrete injury. Washington’s Supreme Court held in Brown v. Old Navy that receiving an email that breaks CEMA is itself the injury under state law. Rothstein found that falls short of the federal test. She called misleading subject lines about promotion deadlines a “technical or procedural violation”.
That left the retailers in an awkward spot. To stay in federal court they had to argue their own emails did real damage. PacSun compared receiving its marketing to nuisance and lost productivity, with “intrusion, distraction, and cost”. The judge was unpersuaded. Nuisance requires unsolicited contact, and the PacSun plaintiffs had not claimed they never gave PacSun their email addresses. In the other two cases, the plaintiffs joined the retailers in arguing for federal standing. It made no difference.
All three retailers asked for a stay until the Ninth Circuit decides Montes v. Penney Opco, an appeal of an Eastern District ruling that a CEMA plaintiff lacked standing. Rothstein refused in each case. Federal guidance on standing, she wrote, will not affect a case heard in state court.
The remands take effect on 5 October. They join a run of similar orders in the Western District of Washington, including cases against Papa John’s and True Religion.
None of the orders decides whether the subject lines broke CEMA. That question now goes to a state court where, following Brown, the injury is receiving the email.
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