Last week, two Washington consumers filed a proposed class action lawsuit accusing Old Navy of spamming them with emails that included false or misleading information about the duration of sales. For example, the complaint alleges that:
- Some emails advertised that products were on sale “today only” or “this week only.” The next day (or the next week), however, the plaintiffs received emails advertising the same sale.
- Some emails advertised that consumers had one “last chance” to take advantage of a discount. The next day, however, the plaintiffs received emails advertising the same discount.
- Some emails advertised a sale with a fixed deadline. The next day, however, the plaintiffs received emails stating that the sale had been “extended.”
Moreover, some of those emails include images of ticking clocks and language urging consumers to “hurry” or “open quickly.” The complaint alleges that these tactics create a false sense of urgency by suggesting that consumers had to act quickly to take advantage of a sale, when that wasn’t true.
Exhibits to the complaint include examples of 51 emails received by one plaintiff and 40 received by the other, along with explanations of why the plaintiffs think the subject lines are false and examples of other emails that allegedly contradict claims in the challenged emails.
The plaintiffs argue that Old Navy’s tactics violate Washington’s Consumer Protection Act and Commercial Electronic Mail Act (which has a limited private right of action), and they are seeking $500 in statutory damages per each email that violates the latter.
As we wait to see how this case develops, companies should ensure that they don’t misrepresent their promotional offers. Creating a sense of urgency can be an effective (and lawful) marketing technique as long as all claims are accurate. But a false sense of urgency will annoy consumers, lead to lawsuits, and generate unwanted attention from regulators.