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Tuesday, July 23, 2019

A Washington lawsuit over email subject lines straps 'booster rockets' to consumer protection claim, Eddie Bauer says

Federal Court

By Carrie Bradon | Jul 8, 2019

SEATTLE (Legal Newsline) – Eddie Bauer is seeking a dismissal of a lawsuit over allegations the outdoor clothing and accessories retailer sent emails that used false or misleading information in the subject lines when advertising sales.

Jennifer Harbers for herself, as a private attorney general and/or on behalf of all others similarly situated, filed a complaint against Eddie Bauer LLC and Does 1-20 in the King County Superior Court on June 21 citing the Washington Commercial Electronic Mail Act (CEMA) and the Washington Consumer Protection Act (CPA). Eddie Bauer LLC filed the motion to dismiss the plaintiff’s amended complaint in the U.S. District Court for the Western District of Washington on June 28 after it removed the case there.

"Eddie Bauer’s subject lines, which inform customers about promotional pricing, accurately characterize the subject matter of the emails," the company stated in its motion to dismiss. 

"Nothing in CEMA’s legislative history suggests that the state legislature perceived advertising messages in email subject lines as a special peril, or deserving of treatment far harsher than false advertisements conveyed by other means, and for which a CPA plaintiff must prove an injury to business or property and actual damage. Instead, the legislature intended to provide consumers with protection against spam email whose contents cannot be divined from misleading subject lines. 

"Eddie Bauer respectfully requests that this court reject plaintiff’s attempt to strap booster-rockets onto a simple but defective false advertising claim by linking it to a liquidated claim under CEMA."

Eddie Bauer also argued in its motion that its emails were not spam but advertisements that Harbers could have deleted or requested not to receive. It also alleges she incurred zero dollars in actual damages.

Harbers alleged in her two-count complaint that she has received 43 emails from Eddie Bauer since Nov. 24, 2017, that advertised sales in their subject lines. These emails allegedly listed a percentage off "everything" or of a purchase. 

The plaintiff alleges the "percentage off" statements were false because Eddie Bauer calculated the percentage off from a fictitious list price. The plaintiff alleges the percentage off "everything" was misleading because some products, like sleeping bags, were not offered at a sale price.

The plaintiff is seeking statutory damages of $500 per email per recipient, interest and attorneys' fees. She is represented by Daniel M. Hattis and Che Corrington of Chattis and Lukacs in Bellevue, Washington.

Eddie Bauer is represented by attorneys with Seed IP Law Group in Seattle and Steptoe & Johnson LLP in San Francisco.

U.S. District Court for the Western District of Washington case number 2:19-CV-00968

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U.S. District Court for the Western District of Washington

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