Skechers U.S.A., Inc. (“Skechers”) was recently sued in Washington for alleged violation of its state email marketing law. As part of its defense in the email litigation proceeding, Skechers removed the case from state court to the United States District Court for the Western District of Washington, where it will seek to have the Commercial Electronic Mail Act (“CEMA”) violation claims dismissed.
What Are the Allegations Against Skechers in the Email Litigation?
Readers of our blog that have followed our email marketing compliance posts know that, broadly speaking, CEMA prohibits, among other things, the sending of commercial email that “[c]ontains false or misleading information in the subject line.” In what appears to be a relatively novel theory of potential liability under the statute, Skechers is alleged to have violated CEMA by including in its email subject lines false time scarcity claims, or language that otherwise allegedly creates a false sense of temporal urgency. Examples of offending subject lines identified in the email litigation are “Long Weekend savings End Tonight,” in an email offering a deal “up to 30% off,” which was purportedly followed the next day by a subsequent email with the subject line “Surprise! Long Weekend Savings Extended for Today,” which accompanied an email offering the same 30% off deal. Similarly, “Hurry, 25% off Ends Today!,” which was followed by an email the following day with the subject line “Surprise! One More Day to Save with 25% off.” Skechers is alleged to have systematically used similar email subject lines to create temporal urgency concerning the offered discounts, only to later extend the advertised sales. It is likely, however, that Sketchers believed that these subject lines constitute customary and acceptable promotional language.
Nevertheless, because of these and similar email subject lines, Skechers now finds itself defending a statewide class action email litigation in which a sizeable number of emails sent to Washington citizens by it, or by third parties on its behalf, in the previous four years, could carry with it significant statutory penalties.
What Are the Implications of Skechers’ Email Litigation for Your Business?
CEMA’s $500 penalty for sending commercial email messages to State recipients that violate the statute establishes substantial stakes for non-compliance. The false temporal urgency claims asserted against Skechers also create a new area of risk for businesses engaged in email marketing. This is almost certainly true regardless of whether the email litigation against Skechers is successful or not, as it is another factor which businesses must now consider as part of their ongoing compliance practices.
The attorneys at Klein Moynihan Turco (“KMT”) have substantial experience guiding clients through the complex web of rules and regulations governing email marketing. In addition, over the years, the KMT litigation team has defended countless businesses that have been faced with email litigation.
If your company is engaged in email marketing, or is facing the prospect of email litigation, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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