AT&T Deceptive Email Advertising Suit Heads to State Court in Washington

On Wednesday, Judge Tana Lin ruled on a dispute between an AT&T customer and AT&T Inc. and subsidiaries AT&T Mobility LLC and DirecTV LLC. The decision addressed threshold jurisdictional issues, ultimately dismissing the plaintiff’s Washington Consumer Protection Act (CPA) claim and sending her remaining state Commercial Electronic Mail Act (CEMA) claim back to Snohomish County Superior Court.

The complaint centered on an email the plaintiff received in July 2018 from AT&T with a subject line stating that it contained important information about her personal cell phone account. Instead, the email was a television subscription services solicitation from corporate sibling DirecTV.

According to the plaintiff, who seeks to represent a class of all Washington residents who also received the email, the deceptive conduct violates consumers’ protected rights.

The defendants responded by removing the complaint to federal court based on diversity jurisdiction under the Class Action Fairness Act and the class-wide statutory damages available under CEMA through the CPA. 

They then moved to dismiss last July, arguing that the plaintiff lacked Article III standing to seek prospective injunctive relief because she could not establish imminent injury. The defendants explained, without admitting fault, that the email the plaintiff received was “part of a limited email marketing campaign that ended in 2018, and they have not since sent, nor do they intend to initiate, any similar email marketing campaigns in the future.”

The AT&T customer “essentially concede[d]” lack of standing to seek injunctive relief “based on the state of federal case law on imminent injury,” the opinion said. However, the plaintiff requested that the court remand the stand-alone CEMA rather than dismissing it.

In this week’s opinion, Judge Lin agreed with both propositions. Over the defendants’ argument that partial remand would be inappropriate, the court cited recent Ninth Circuit precedent finding remand in such cases “particularly advisable” because though the CEMA claim is not justiciable in federal court, the claim is justiciable in the state forum.

The plaintiff is represented by Hattis & Lukacs and the defendants by WalterKipling PLLC and Mayer Brown LLP.