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California’s Anti-Spam law takes center stage in a growing wave of class action lawsuits

3/25/26

By: Jacob Berlinger and Sara Correa

Companies that rely on email marketing are facing increased scrutiny as plaintiffs’ firms file a surge of class action lawsuits alleging violations of California’s Anti-Spam Law, California Business and Professions Code § 17529.5. These actions are targeting companies across the United States that send marketing or promotional emails to California residents, regardless of where the sender is located.

What plaintiffs are alleging

Plaintiffs allege that defendants sent misleading commercial emails containing deceptive or forged header information, misleading subject lines, unauthorized domain references, or that they failed to implement valid opt-in or opt-out mechanisms. These allegations frequently involve forged or inconsistent sender details—such as mismatched display names and domains or falsely implying recipient consent—as well as subject lines that could mislead a reasonable recipient about a material fact in the message, and failures to comply with common authentication standards such as SPF, DKIM or DMARC.

Expansive liability under § 17529.5

A central theme in these lawsuits is the assertion that § 17529.5 imposes strict liability on advertisers, meaning plaintiffs need not prove intent, reliance, actual harm, or damages. Under this theory, any company that benefits from a commercial email may be held liable, regardless of whether the message was sent directly by the company or by a third-party vendor or affiliate.

This strict liability approach significantly increases potential exposure because the statute authorizes liquidated damages of $1,000 per unsolicited commercial email per recipient, which could result in multimillion-dollar liability in class actions involving large marketing lists. Court may, however, reduce liquidated damages to $100 per violation (or $100,000 per incident) if the defendant can prove it had implemented reasonable practices and procedures reasonably designed to prevent unlawful commercial spam emails.

Practical steps to reduce risk

Although every business will need a compliance strategy tailored to its operations, there are several steps companies should take immediately to limit potential exposure in the event of litigation:

(1) Review and update email marketing practices: Ensure that your company’s commercial email marketing policies comply with § 17529.5, as well as other applicable regulations, including the federal CAN-SPAM Act.[1] This includes confirming that email headers, domains, and subject lines are accurate and not misleading.

(2) Monitor third-party vendors: If your company uses outside vendors, affiliates, or marketing partners, incorporate strong contractual protections that they comply with applicable anti-spam laws, and conduct appropriate oversight mechanisms. Companies should also carefully review indemnification provisions in these agreements.

(3) Maintain documentation: Preserve records of compliance efforts—including training, audits, technical safeguards, and compliance protocols—to demonstrate due care if challenged in litigation.

(4) Refine subject lines and content: Ensure the subject line matches with the substance of the message and avoid phrasing that could mislead a “reasonable recipient.”

Bottom line

In short, California’s Anti-Spam Law presents significant risks for businesses engaged in email marketing, particularly because of its strict liability standard and high statutory damages. Even technical missteps or vendor-driven violations can trigger costly litigation. Companies that proactively review their email practices, strengthen vendor oversight, and maintain thorough compliance documentation will be far better positioned to reduce exposure and defend against claims under § 17529.5.

[1] The CAN-SPAM Act establishes nationwide standards for commercial email and is enforced exclusively by government authorities, including the Federal Trade Commission. Each non-compliant email can result in civil penalties of up to $53,088.

For more information on this topic, please contact Jacob Berlinger at jacob.berlinger@fmglaw.com, Sara Correa at sara.correa@fmglaw.com or your local FMG attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.