On October 2, a court in King County, Washington gave final approval to a $14 million settlement between Costco and a class of Washington residents who got its marketing emails. The complaint pointed to subject lines like a "last day" for member-only savings and "Hot Buys" that were supposedly available for "5 days" when the deals ran longer than that. The class covers roughly 3.5 million people. Costco didn't admit anything, but $14 million is a real number.
Most ecommerce brands read that and figure it's a big-retailer problem. It isn't. The pattern in the complaint is the same one almost every brand runs in late November: "Ends tonight" on Monday, then "We extended it!" on Tuesday morning.
If that sequence is already sitting in your BFCM calendar, here's what changed and how I'd rewrite it.
What actually changed in Washington
Washington has had a commercial email law (CEMA) since 1998. For most of that time it was read as a rule about spoofed senders and fake "from" information. Then in April 2025, in Brown v. Old Navy, the Washington Supreme Court said the ban on "false or misleading information in the subject line" means exactly that. Any false or misleading claim in the subject line counts, and the email body can't fix it.
That opened the floodgates. Per Cooley's write-up, more than 100 CEMA lawsuits were filed in the 12 months after that ruling, compared to eight in the two decades before it. Damages were $500 per email, with no need to prove anyone was harmed.
Washington then amended the law (HB 2274, signed March 23, 2026, effective June 11, 2026). Two changes matter for email teams:
- Damages dropped from $500 to $100 per email. That still adds up fast. 100,000 Washington subscribers times three "last chance" sends is $30 million in theoretical exposure.
- A subject line now has to be false based on the sender's "actual knowledge or knowledge fairly implied on the basis of objective circumstances."
People are reading that second change as a safe harbor. I read it the other way.
The knowledge rule is the part that should worry you
Here's the question the new standard asks: when you sent "Ends tonight," did you know it wasn't going to end tonight?
If you've extended your Cyber Monday sale three years running, and your BFCM calendar has a "Tuesday extension" row on it before November even starts, that's a pretty easy answer. Cooley makes the same point: the knowledge rule might help a brand that can show an extension was genuinely unplanned, and it probably won't help one whose records show extensions are routine.
So the honest version of the BFCM extension isn't to stop extending. It's to stop pretending you weren't going to.
How I'd rewrite the sequence
The fix is mostly in the subject lines. The offer, the timing and the number of sends can all stay the same.
Put the real end date in the subject line. "Ends Monday at midnight PT" is true if it ends Monday at midnight PT. "Ends tonight" sent on Sunday to someone reading it Monday morning is already murky. A day and a time zone is more useful to the customer anyway.
If the extension is planned, plan the language. Decide in October that the sale runs through Tuesday. Then the Monday send says "One more day after today" and the Tuesday send says "Last day: ends tonight at midnight PT." You still get two urgency sends. They're just both true.
Don't use "final" or "last chance" until it is. "Last chance" on Monday followed by "Final hours" on Tuesday is the exact sequence these suits are built on. Save the finality words for the send where nothing comes after it.
Watch the number claims too. The court's reading isn't limited to deadlines. "50% off everything" when it's 50% off one collection is the same kind of problem. If it's up to 50%, say up to.
Don't lean on the body copy. A line of small print saying "extended through Wednesday" doesn't save a subject line that said "Ends tonight." The ruling is about the subject line on its own.
Write down why you said it. The amended law cares about what you knew when you hit send. If the warehouse asks for an extra day on Monday afternoon and you extend, a note in the promo doc that says so (with a date) is worth having. If the extension was on the calendar since September, no note is going to help.
What I wouldn't do
The tempting workaround is sending Washington subscribers different subject lines. I wouldn't.
For one, the law follows the recipient, not your location, and you won't always know where every subscriber lives. More importantly, a subject line that's misleading in Washington is misleading in Ohio too. It just isn't expensive there yet. And honest deadlines are better email marketing anyway. If your list has learned that "ends tonight" means "ends Wednesday," the urgency was already gone and you've been paying for it in unsubscribes.
The same law also covers commercial texts sent without consent, so make sure every number you're texting opted in. And the deadline language in your texts should follow the same rules as your subject lines.
The quick audit
Before your BFCM sends get scheduled, pull up every subject line and preview text in the sequence and ask three questions:
- Is the deadline or discount in this line true at the moment it lands, for every person who gets it?
- Is there any later send in the calendar that contradicts it?
- If someone asked why we wrote it, could we point to a document from before the send?
If any answer is no, rewrite the line. It usually takes ten minutes per campaign.
I'm not a lawyer, and if you've got a lot of Washington customers it's worth running your Q4 calendar past one. But you don't need a lawyer to see the basic issue. If you already know the sale is getting extended, don't write "ends tonight."
