Selay Shahpur and Lindsey Smith, on their own behalf and on behalf of other similarly situated v. State of Washington
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Opinion
1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON May 14, 2026 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 SELAY SHAHPUR and LINDSEY Nos. 2:25-cv-00284-RLP SMITH, on their own behalf and on 2:25-cv-00526-RLP 8 behalf of other similarly situated, 2:26-cv-00084-RLP
9 Plaintiffs, ORDER DIRECTING BRIEFING 10 And
11 STATE OF WASHINGTON, 12 Plaintiff-Intervenor, 13 v. 14 ULTA SALON, COSMETICS & FRAGRANCE, INC., 15
Defendant. 16
CASSAUNDRA MAXWELL, on her 17 own behalf and on behalf of other similarly situated,
18 Plaintiff,
19 And
20 STATE OF WASHINGTON, 1 Plaintiff-Intervenor,
2 v.
ULTA SALON, COSMETICS & 3 FRAGRANCE, INC.,
4 Defendant.
5 VERONICA REPPERGER, AMBER LAMAR, CHARRA CLADWELL, and REBEKKAH CLARK, on their own 6 behalf and on behalf of other similarly situated, 7 Plaintiffs, 8 And
9 STATE OF WASHINGTON,
10 Plaintiff-Intervenor, v.
11 ULTA SALON, COSMETICS & FRAGRANCE, INC., 12 Defendant.
13 Before the Court are multiple motions in each of the above-captioned cases. 14 Among those motions is Defendant’s unopposed motion to allow five extra pages 15 in the reply brief for its motion to consolidate cases, which is duplicated and filed 16 in each case. This motion is granted. Before ruling on the remaining pending 17 motions, the Court requires briefing regarding the issue of subject matter 18 jurisdiction and whether these matters should be remanded to their respective 19 superior courts. Therefore, ruling on all other pending motions is stayed and the 20 parties are directed to brief the issues as set forth below. 1 BACKGROUND 2 Plaintiffs Shahpur et al, Repperger et al, and Maxwell et al each filed a 3 putative class action Complaint against Ulta Salon Cosmetics and Fragrance, Inc., 4 alleging Ulta’s advertising e-mails violated the CPA and CEMA based on false and 5 deceptive e-mail marketing. In each case, Ulta moved to dismiss for lack of
6 specificity, failure to properly plead the claims, preemption of CEMA by CAN- 7 SPAM, and because it alleged CEMA is unconstitutional. The motions to dismiss 8 in Shahpur and Repperger were denied and the Court found Plaintiffs’ CPA and 9 CEMA claims were plausible; CEMA is not preempted by federal law; and CEMA
10 does not violate the dormant Commerce Clause. The motion to dismiss in the 11 Maxwell case remains pending. Ulta Beauty filed a motion to certify appeal of the 12 order denying motion to dismiss in the Shahpur case and a motion to consolidate
13 all three cases. Plaintiffs in Maxwell and Repperger agree their cases could be 14 consolidated but oppose consolidation with the Shahpur case. 15 DISCUSSION 16 “It is the duty of federal courts to assure themselves that their jurisdiction is
17 not being exceeded.” HayDay Farms, Inc. v. FeeDx Holdings, Inc., 55 F.4th 1232, 18 1238 (9th Cir. 2022) (quoting In re Ryther, 799 F.2d 1412, 1414 (9th Cir. 1986)) 19 (quotation marks omitted). A court may raise the issue of a lack of subject matter
20 jurisdiction sua sponte at any time. Id. A “lack of Article III standing requires 1 dismissal for lack of subject matter jurisdiction under Federal Rule of Civil 2 Procedure 12(b)(1).” Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011).
3 To establish standing, “a plaintiff must show (i) that he suffered an injury in fact 4 that is concrete, particularized, and actual or imminent; (ii) that the injury was 5 likely caused by the defendant; and (iii) that the injury would likely be redressed
6 by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (quoting 7 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992)). 8 The Court observes that in each of its motions to dismiss, Ulta Beauty has 9 argued that the Complaints do not allege actual or concrete injury. See Shahpur,
10 ECF No. 38 at 9-10, 15; Repperger, ECF No. 19 at 11-13, 16; Maxwell, ECF No. 11 22 at 8-10. This argument implicitly raises the issue of standing. As the party who 12 removed these cases to federal court, Ulta bears the burden of establishing
13 jurisdiction. 14 Courts in this district have recently remanded or dismissed similar CEMA 15 cases for lack of standing. Nuri v. True Religion Apparel, 2026 WL 864886, at *2 16 (W.D. Wash. Mar. 30, 2026) (remanding due to lack of standing); Montes v.
17 Catalyst Brands LLC, 2025 WL 3485827, at *2 (E.D. Wash. Dec. 4, 2025) 18 (dismissing CEMA complaint due to lack of standing); see also Crooks v. Coty 19 DTC Holdings, LLC, 2026 WL 1265422 (D. Md. May 8, 2026) (remanding for
20 lack of standing for claim under Maryland CEMA which is “virtually identical” to 1 Washington’s CEMA); Mulanena, v. Ulta Salon, Cosmetics & Fragrance, Inc., 2 2026 WL 1214932, at *1 (D. Md. May 4, 2026) (granting motion to remand
3 Maryland CEMA case for lack of standing); compare with Harbers v. Eddie 4 Bauer, LLC, 415 F. Supp. 3d 999, 1011–12 (W.D. Wash. 2019) (finding alleged 5 violation of CEMA constituted concrete injury in fact and denying motion to
6 remand). 7 Other courts have noted the outcome of recent cases and have required 8 additional briefing on the issues of standing and the amount in controversy as it 9 relates to subject matter jurisdiction. See Hutton v. Papa John’s USA, Inc., 2026
10 WL 1183241, (W.D. Wash. Apr. 30, 2026) (ordering briefing regarding standing 11 and potential damages related to subject matter jurisdiction); Devivo v. Sheex Inc., 12 2026 WL 775625 (W.D. Wash. Mar. 19, 2026) (issuing order to show cause why
13 the case should not be remanded for lack of standing and lack of subject matter 14 jurisdiction); Kempf v. Fullbeauty Brands Operations, LLC, 25-cv-1141-TSZ, ECF 15 No. 48 (W.D. Wash. February 13, 2026) (requiring briefing regarding Article III 16 standing and amount in controversy).
17 If this Court lacks jurisdiction, any further proceedings would be moot. 18 Accordingly, except as set forth below, the Court hereby stays the pending motions 19 in the above-captioned cases. Hearing dates in all cases are stricken and if
20 necessary will be reset at a later time. The parties are ordered to submit 1 supplemental briefing as set forth below. 2 Accordingly, IT IS HEREBY ORDERED:
3 1. The parties shall file briefing addressing (1) whether the plaintiffs 4 have standing to pursue the claims presented in these actions and, if not, whether 5 the action should be remanded to the respective superior courts; and (2) whether
6 CEMA provides for damages to be calculated on a per-email basis or a per- 7 recipient basis, and whether the resulting calculations meet the amount-in- 8 controversy threshold for either diversity jurisdiction or CAFA jurisdiction. 9 Defendant shall file a brief on these issues no later than June 15, 2026. Plaintiffs
10 shall file a responsive brief or briefs no later than June 29, 2026. Plaintiffs may file 11 briefs jointly or individually or any combination thereof. Intervenor-Plaintiff State 12 of Washington may file an optional responsive brief no later than June 29, 2026.
13 Briefs shall not exceed 10 pages. 14 2. In Shahpur et al v. Ulta Salon, 25-cv-284-RLP: The hearing dates for 15 the Motion to Certify Appeal, ECF No. 59, and Motion to Consolidate Cases, ECF 16 No. 65, are STRICKEN and will be reset at a later time, if necessary. Defendant’s
17 Unopposed Motion to Extend Five Pages to Allow Consolidated Reply for All 18 Three Cases, ECF No. 74, is GRANTED. 19 3.
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Selay Shahpur and Lindsey Smith, on their own behalf and on behalf of other similarly situated v. State of Washington, Counsel Stack Legal Research, https://law.counselstack.com/opinion/selay-shahpur-and-lindsey-smith-on-their-own-behalf-and-on-behalf-of-other-waed-2026.