Akerman Partner Ellen S. Robbins and Special Counsel Scott Allbright, both of the firm’s Litigation Practice Group, contributed to Retail Touchpoints’ Executive Viewpoint on the rise of consumer class action lawsuits challenging allegedly misleading email subject lines used by retailers.
In “New Spike in Lawsuits that Challenge Misleading Email Subject Lines,” Ellen and Scott analyze how a Washington Supreme Court decision interpreting the state’s Commercial Electronic Mail Act has helped fuel increased litigation risk for retailers nationwide. They note that similar statutory language exists in several states, including California and Florida, creating the potential for significant exposure stemming from a single email campaign.
The article outlines common allegations seen in recent lawsuits, including claims that promotional subject lines falsely convey urgency or advertise discounts that do not reflect prevailing prices. Ellen and Scott also explain why these claims can carry steep per-email statutory penalties and why disclaimers within the body of an email may not be sufficient to cure allegedly misleading subject lines.
Drawing on recent case activity, they offer practical guidance for retailers seeking to mitigate risk, emphasizing the importance of accurate, supportable email messaging and proactive compliance strategies. The authors also discuss how arbitration and class action waiver provisions, when properly implemented, may help limit exposure in this growing area of litigation.