Express Class Action Lawsuit 2026, “Today Only” Sale Emails Allegedly Misled Washington Shoppers (Carter v. Phoenix Retail)

Express is facing a proposed class action that accuses the clothing retailer of sending Washington residents marketing emails saying sales were about to expire, then running the same discounts again the next day. Jennifer Carter sued Phoenix Retail LLC, doing business as Express. The case is Carter v. Phoenix Retail LLC, Case No. 2:26-cv-03543, in the U.S. District Court for the Western District of Washington. It began in King County Superior Court and was removed to federal court on September 21, 2026.

Carter alleges violations of Washington’s Commercial Electronic Mail Act (CEMA) and Consumer Protection Act (CPA). These are allegations in a complaint. Express has not been found liable, no class has been certified, and as of October 19, 2026 there is no settlement, claim form or claim deadline.

Important legal change: Washington amended its Commercial Electronic Mail Act (CEMA), effective June 11, 2026. The amendment reduced statutory damages for a qualifying recipient from $500 to $100, or actual damages if greater, and now requires proof that the sender had actual knowledge—or knowledge fairly implied from objective circumstances—that the email subject line was false or misleading. Older articles stating “$500 per email” may therefore be out of date. Which version of the law applies to this case depends on when the lawsuit was originally filed in state court, so the original state-court complaint should be checked before stating a damages amount as certain.

Express “Today Only” Email Lawsuit: Quick Facts

Detail	Information
Case name	Carter v. Phoenix Retail LLC d/b/a Express
Case number	2:26-cv-03543
Federal court	U.S. District Court, Western District of Washington
Original court	King County Superior Court, Washington
Removal date	September 21, 2026
Assigned judge	Judge Tana Lin, according to available docket summaries
Plaintiff	Jennifer Carter, a King County resident
Defendant	Phoenix Retail LLC, doing business as Express
Plaintiff’s counsel	Samuel J. Strauss and Raina C. Borrelli (Strauss Borrelli PLLC); Joshua R. Jacobson (Jacobson Phillips PLLC)
Main allegation	Misleading “today only,” “final hours” and sale-ending email subject lines followed by extended sales
Laws cited	Washington CEMA (RCW 19.190) and Consumer Protection Act (RCW 19.86)
Proposed class	Washington residents who received allegedly misleading Express promotional emails in the four years before filing
Damages	Statutory or actual damages; amount depends on which version of CEMA applies
Settlement	None verified
Class certification	Not granted
Claim form or deadline	None; no money is currently available to claim
Official docket	Justia and PACER (see Sources)

1. What Does the Express Lawsuit Allege?

Carter says Express sent promotional emails with subject lines that misstated how long a sale would last. According to reporting on the complaint, Express labeled promotions “today only” or in their “final hours,” then extended or reintroduced the same discounts after the advertised deadline. She argues this false urgency pushes shoppers to buy right away instead of comparing prices and draws people into engaging with marketing out of fear of missing out.

Emails named in the complaint

Date (2026)	What the complaint says Express sent	What allegedly happened next
January 25	“You’ve got ONE day! 40-70% off all sweaters,” plus two more emails that day, including one announcing “Final hours”	January 26: the same discount offered again as a “bonus day!”
February 15	“TODAY ONLY!” markdown sale	February 16: the same sale returned as a “Surprise!” bonus day
April 5	A sale advertised as “TODAY ONLY”	April 6: “40% OFF EVERYTHING EXTENDED!”
May through August	Additional limited-time promotions	The complaint reportedly lists six more cycles of the same pattern

These examples are allegations, not findings. An extension can have more than one explanation. If a retailer planned from the start to extend a supposedly one-day offer, that could support the claim that the deadline was misleading. If it made a genuinely new decision after the deadline, the knowledge element of the amended law becomes important.

How Express allegedly knew who lived in Washington

Carter says Express can identify Washington recipients through purchase records, IP address tracking and commercial data brokers.

Is this really a “spam” lawsuit?

Headlines use the word “spam,” but the claim is narrower. Carter is challenging the accuracy of subject lines about sale deadlines, not the mere receipt of unwanted email. A person can sign up for promotional emails and still receive a subject line that misstates a sale’s duration. Receiving many promotional emails does not by itself violate CEMA.

2. Washington’s Commercial Electronic Mail Act (CEMA)

CEMA is codified in Chapter 19.190 of the Revised Code of Washington. It covers certain commercial emails sent from a computer in Washington or to an address the sender knows, or has reason to know, belongs to a Washington resident.

• RCW 19.190.020(1)(b): prohibits initiating, conspiring to initiate or assisting in transmitting a covered commercial email whose subject line contains false or misleading information. Under the 2026 amendment, the sender must have actual knowledge, or knowledge fairly implied from objective circumstances, that the subject line is false or misleading.
• RCW 19.190.030: makes violations of the email provisions violations of the Consumer Protection Act, declaring them unfair or deceptive acts in trade or commerce.
• RCW 19.190.040: sets damages. For causes of action governed by the amended law, a recipient may recover $100 or actual damages, whichever is greater. An interactive computer service harmed by a violation may recover $1,000 or actual damages, whichever is greater. Before the amendment, the recipient figure was $500.

What changed in 2026?

Washington enacted Engrossed Substitute House Bill 2274 (Chapter 135, Laws of 2026). The governor signed it on March 23, 2026, and it took effect June 11, 2026. It changed two things: it added the knowledge requirement for misleading subject lines, and it reduced statutory damages from $500 to $100. The legislation states that it applies to causes of action commenced on or after June 11, 2026, regardless of when the alleged conduct occurred. That means emails sent earlier in 2026 could still be governed by the amended law if the lawsuit was commenced after the effective date. For that reason, the original state-court filing date matters more than the September 21 removal date.

Why Brown v. Old Navy still matters

In Brown v. Old Navy, LLC, 567 P.3d 38 (Wash. 2025), decided April 17, 2025, the Washington Supreme Court read CEMA to prohibit any false or misleading information in a commercial email subject line, not only misstatements about whether the email is an ad. The case involved promotions advertised as ending that were later extended. Commentary on the ruling noted that a clarification in the body of an email does not cure a misleading subject line and that the decision did not require proof of actual harm from the recipient. That ruling fueled a wave of suits over phrases such as “today only,” “last chance,” “final hours” and “sale extended.” The 2026 amendment, however, changed the knowledge and damages rules, so Brown must be read together with the new statute.

3. The Consumer Protection Act Claim

The Washington Consumer Protection Act, Chapter 19.86 RCW, prohibits unfair or deceptive acts or practices in trade or commerce (RCW 19.86.020).

• Elements. A private CPA plaintiff generally must show (1) an unfair or deceptive act or practice, (2) in trade or commerce, (3) affecting the public interest, (4) injury to business or property, and (5) causation (Hangman Ridge Training Stables, Inc. v. Safeco Title Insurance Co., 105 Wn.2d 778 (1986)). RCW 19.190.030 supplies the first three for qualifying CEMA violations, so the disputes in a case like this often center on injury and causation.
• Remedies. RCW 19.86.090 allows actual damages, costs and reasonable attorneys’ fees, and lets a court increase damages up to three times actual damages, subject to a statutory cap on enhanced awards. Trebling is discretionary, and it does not automatically turn $100 into $300 per email.
• Limitation period. CPA claims generally must be brought within four years (RCW 19.86.120), which matches the four-year proposed class period.
• Attorney General enforcement. The Washington Attorney General can also enforce the CPA (RCW 19.86.080).

4. How Much Could Washington Consumers Recover?

No amount has been awarded or approved. Carter reportedly seeks injunctive relief, damages under CEMA and the CPA (including tripled damages), and attorneys’ fees and costs for herself and the class, and she demands a jury trial.

• Under the amended statute, a qualifying recipient claim is $100 or actual damages, whichever is greater. Under the former statute, it was $500.
• Carter may argue each qualifying email is a separate violation. Express can contest the number of actionable emails, the knowledge requirement, the statute’s interpretation and any damages calculation.
• Whether enhanced damages are available depends on the CPA’s requirements and the court’s discretion.

5. Could the Federal CAN-SPAM Act Stop the Lawsuit?

Not automatically. The federal CAN-SPAM Act (15 U.S.C. § 7701 and following) regulates commercial email, but 15 U.S.C. § 7707(b)(1) preserves state laws that prohibit falsity or deception in commercial email. The Washington Attorney General treats Washington’s anti-spam law as falling within that exception. CAN-SPAM does not generally give an individual consumer a private damages action for receiving spam, which is why Carter relies on state law. The state law’s knowledge requirement, damages rules and class-action requirements still apply.

6. Federal Court, Removal and Class-Action Rules

Express filed a notice of removal on September 21, 2026, moving the case from King County Superior Court to the Western District of Washington. The docket lists diversity jurisdiction under 28 U.S.C. § 1332 and records a jury demand. Removal is governed by 28 U.S.C. §§ 1441 and 1446, which generally require a notice within 30 days after the defendant is served. Federal jurisdiction over a proposed class action can also arise under the Class Action Fairness Act, 28 U.S.C. § 1332(d). Removal is a procedural step and does not decide the merits.

In federal court, the case will be tested under several rules:

• Fed. R. Civ. P. 12(b)(6): a motion to dismiss for failure to state a claim.
• Article III standing: the plaintiff must show a concrete injury, an issue courts examine closely in statutory-damages email cases (see Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), and TransUnion LLC v. Ramirez, 594 U.S. 413 (2021)). A federal court that finds no standing may send a removed case back to state court.
• Fed. R. Civ. P. 23: a class requires numerosity, commonality, typicality and adequacy under 23(a), and for a damages class, predominance and superiority under 23(b)(3).

6. Federal FTC Principles on “Limited-Time” Claims

The FTC Act, 15 U.S.C. § 45, prohibits deceptive advertising, and the FTC’s Guides Against Deceptive Pricing (16 C.F.R. Part 233) warn against bargain and limited-time claims that are not genuine. These federal standards do not give consumers a private lawsuit here, and they do not decide this case, but they show that “sale ends today” claims have long drawn regulatory scrutiny.

7. Who Is in the Proposed Express Class?

Carter asks the court to certify a class of Washington residents who received a commercial email from Express during the four years before the complaint was filed, where the subject line allegedly misrepresented the facts of a sale, deal or promotion. No class is certified, and the court can narrow the campaigns, recipients or dates.

• Do you have to buy something? Not necessarily for the email claim, which focuses on receipt of a covered message. A CPA damages claim raises separate injury and causation questions. Receiving any Express email does not by itself make someone eligible.
• Do you have to open the email? The claim concerns the subject line. Opening or purchasing is not the same issue as whether a prohibited subject line was sent, but the amended statute and the CPA claim must be evaluated before assuming every recipient is entitled to damages.
• Does it matter that you signed up? The complaint says CEMA applies even if the consumer signed up or did not rely on the subject line.

8. What Defenses Could Express Raise?

Express has not been reported to have filed a response, so these are potential arguments, not positions it has taken.

• The subject lines were accurate when sent. The offers were scheduled to end and were later extended for a legitimate reason.
• No required knowledge. Under amended CEMA the plaintiff must address Express’s actual or fairly implied knowledge. Promotion schedules and internal communications may be key.
• Outside the statute. Disputes over whether messages were covered commercial emails or whether Express knew or had reason to know a recipient was a Washington resident.
• Standing and injury. The plaintiff must show a concrete injury for federal jurisdiction and for the CPA claim.
• Class issues. Different subject lines, promotions and recipients may mean individual questions outweigh common ones.
• Damages overstated. Disputes over the number of emails, the $100 versus $500 figure, and enhanced damages.

9. How Does Express Compare With Other Washington Email Lawsuits?

The case is part of a wider set of proposed class actions over alleged false urgency in promotional emails. Reported defendants in similar Washington cases include Skechers (sued in the Western District of Washington in September 2025), Ulta Beauty (where a federal court declined to dismiss claims over subject lines like “ending soon” and “last chance”), Keurig and H&M. Each case turns on its own emails and facts, and cases commenced after June 11, 2026 face the amended statute. Comparisons with older cases should account for the new knowledge requirement and lower statutory damages, and none of those cases decides whether Express violated the law.

10. What Happens Next?

As of October 19, no reported response from Express and no ruling on the merits or class certification had been verified. Check the docket for the latest filings.

Date	Event
January 25, 2026	First email cycle described in the complaint
June 11, 2026	Amended CEMA took effect
September 21, 2026	Case removed to federal court
October 17, 2026	Case publicly reported by Top Class Actions
TBD	Express’s response (answer or motion to dismiss)
TBD	Any ruling on class certification

Likely next steps include a response or motion to dismiss, discovery on the promotional campaigns, and a motion for class certification if the case survives. The parties could also negotiate a settlement, which would require court approval and notice to class members.

11. Can You Join the Express Lawsuit or File a Claim?

There is nothing to join or claim right now, and you do not need to do anything. If you live in Washington and received Express emails with deadline language, a sensible step is to keep copies:

• The original emails, including subject lines and the dates received
• Screenshots or notes showing when the sale was advertised to end
• Evidence that the same offer continued afterward
• Your email address and the state where you lived at the time

If a class is certified or the case settles, a court-approved notice will explain how to take part.

Frequently Asked Questions About the Express Class Action Lawsuit

Is there an Express class action lawsuit over “today only” emails?

Yes. Jennifer Carter filed a proposed class action against Phoenix Retail LLC, doing business as Express, alleging misleading sale-expiration subject lines sent to Washington residents. The case is Carter v. Phoenix Retail LLC, No. 2:26-cv-03543.

What did Express allegedly do?

The complaint alleges Express sent emails advertising sales as ending that day or within hours, then extended or reintroduced similar discounts, including a January sweater sale, a February “TODAY ONLY!” promotion and an April sale advertised as extended the next day.

Which laws does the lawsuit rely on?

Washington’s Commercial Electronic Mail Act (RCW 19.190) and Consumer Protection Act (RCW 19.86).

How much could consumers receive?

No amount has been awarded. The amended CEMA provides $100 or actual damages, whichever is greater, while the earlier version provided $500. Which applies depends on when the action was commenced.

Is there an Express settlement or claim form?

No. The case is pending, and no settlement fund, claims administrator or deadline has been verified.

Do I have to have bought something from Express?

Not necessarily for the email claim, though the eventual class definition and the proof required for each claim will determine eligibility.

Does the lawsuit prove Express’s emails were deceptive?

No. The complaint contains allegations, and the court has not ruled that any subject line violated the law.

Can Express argue that it genuinely extended a sale?

Potentially. Under the amended law, the sender’s knowledge that a subject line was false or misleading is relevant, so evidence of a genuine later extension could matter.

Does federal CAN-SPAM law override Washington’s email law?

Not automatically. CAN-SPAM preserves state laws that prohibit false or deceptive commercial email.

Who represents Jennifer Carter?

Samuel J. Strauss and Raina C. Borrelli of Strauss Borrelli PLLC and Joshua R. Jacobson of Jacobson Phillips PLLC.

Why was the case moved to federal court?

Express filed a notice of removal on September 21, 2026. Removal moves a qualifying case from state to federal court and does not decide the merits.

Editorial Note and Disclaimer

This article describes allegations in a pending proposed class action, not proven facts or a court finding of liability. It is general information, not legal advice. Statutory summaries are in plain language and may change, and the amendment’s application to this case should be confirmed from the state-court filing date. Details may change as the docket develops. Consult a licensed Washington attorney about your own situation. Corrections are welcome.

Sources

1. Justia, Carter v. Phoenix Retail LLC, No. 2:26-cv-03543 (W.D. Wash.), federal docket and removal record: https://dockets.justia.com/docket/washington/wawdce/2:2026cv03543/368911
2. Washington Revised Code § 19.190.020: https://app.leg.wa.gov/rcw/default.aspx?cite=19.190.020
3. Washington Revised Code § 19.190.030: https://apps.leg.wa.gov/RCW/default.aspx?cite=19.190.030
4. Washington ESHB 2274, Chapter 135, Laws of 2026 (effective June 11, 2026): https://lawfilesext.leg.wa.gov/Biennium/2025-26/Htm/Bills/Session%20Laws/House/2274-S.SL.htm
5. Washington Supreme Court, Brown v. Old Navy, LLC, No. 102592-1, April 17, 2025: https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=1025921MAJ
6. Washington Revised Code § 19.86.090: https://apps.leg.wa.gov/rcw/default.aspx?cite=19.86.090
7. 15 U.S.C. § 7707, CAN-SPAM preemption: https://www.law.cornell.edu/uscode/text/15/7707
8. Washington Attorney General, Federal Law and CAN-SPAM: https://www.atg.wa.gov/federal-law
9. Cornell Legal Information Institute, CAN-SPAM and Consumer Lawsuits: https://www.law.cornell.edu/wex/inbox/can-spam_and_consumer_lawsuits
10. FBT Gibbons, Washington Courts Clear The Way For Class Actions Over Misleading Email Subject Lines, April 8, 2026: https://webiis10.mondaq.com/unitedstates/class-actions/1770536/washington-courts-clear-the-way-for-class-actions-over-misleading-email-subject-lines
11. Akerman LLP, Misleading email subject lines can lead to substantial liability: https://lens.akerman.com/post/102lrp3/misleading-email-subject-lines-can-lead-to-substantial-liability
12. The Fashion Law, Washington’s Email Law is Turning Retail Marketing Into a Legal Minefield, March 27, 2026: https://www.thefashionlaw.com/washingtons-email-law-is-turning-retail-marketing-into-a-legal-minefield/
13. Washington Retail, Retailers on alert: WA Supreme Court expands email marketing liability: https://washingtonretail.org/?p=93765
14. emailexpert, Skechers hit with class action over allegedly misleading marketing emails: https://emailexpert.com/skechers-hit-with-class-action-over-allegedly-misleading-marketing-emails/
15. Open Class Actions, Keurig “Fake Urgency” Email Class Action Lawsuit (2026): https://openclassactions.com/lawsuits/keurig-false-urgency-marketing-emails-class-action-lawsuit.php
16. RCW 19.86.020, 19.86.080, 19.86.120; 28 U.S.C. §§ 1332, 1441, 1446; 15 U.S.C. § 45; 16 C.F.R. Part 233; Fed. R. Civ. P. 12 and 23.
17. Hangman Ridge Training Stables, Inc. v. Safeco Title Insurance Co., 105 Wn.2d 778 (1986); Spokeo, Inc. v. Robins, 578 U.S. 330 (2016); TransUnion LLC v. Ramirez, 594 U.S. 413 (2021).