Vernoc Repperger, Amber Lamar, Charra Caldwell, Rebekah Clark, on their own behalf and on behalf of other similarly situated v. Ulta Salon, Cosmetics &

• Court: District Court, E.D. Washington
• Decided: April 28, 2026
• Docket: 2:25-cv-00526
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Apr 28, 2026 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 VERNOIC REPPERGER, AMBER No. 2:25-cv-00526-RLP LAMAR, CHARRA CALDWELL, 8 REBEKAH CLARK, on their own behalf and on behalf of other similarly ORDER DENYING MOTION TO 9 situated, DISMISS

10 Plaintiffs, 11 v. 12 ULTA SALON, COSMETICS & FRAGRANCE, INC., 13

Defendant, 14

And 15

STATE OF WASHINGTON, 16

Intervenor. 17

18 Before the Court is Defendant Ulta Salon Cosmetics and Fragrance, Inc.’s 19 Motion to Dismiss. ECF No. 19. Plaintiffs filed a putative class action Complaint 20 against Ulta Salon Cosmetics and Fragrance, Inc., for false and misleading email 1 marketing. As set forth below, Ulta’s Motion to Dismiss is denied. The Complaint 2 plausibly pleads the CPA and CEMA claims with sufficient specificity; CEMA is

3 not preempted by federal law; and CEMA does not violate the dormant Commerce 4 Clause. 5 BACKGROUND

6 Plaintiffs Veronica Repperger, Amber Lamar, Charra Caldwell, and 7 Rebekah Clark filed a putative class action lawsuit against Ulta Salon Cosmetics 8 and Fragrance, Inc., in Island County Superior Court alleging violations of the 9 Washington Commercial Electronic Mail Act (CEMA) and the Washington

10 Consumer Protection Act (CPA). ECF No. 1-1. Defendants removed the case to the 11 Eastern District of Washington. ECF No. 1. 12 The Complaint alleges Ulta sends two types of emails to Washington

13 consumers which contain false or misleading information in the subject lines. First, 14 Ulta sends emails with subject lines falsely representing offers as “free gifts” 15 without disclosing required conditions, such as minimum purchase amounts. 16 Second, Ulta sends emails with subject lines falsely representing unqualified

17 discounts on purchases without disclosing material exclusions. ECF No. 1-1, ¶¶ 1- 18 10. Plaintiffs allege the free gift emails and percentage discount emails violate the 19 Washington Commercial Electronic Mail Act (CEMA), and the Washington

20 Consumer Protection Act. Id., ¶ 11. 1 Ulta filed a Motion to Dismiss and a Notice of Constitutional Challenge. 2 ECF No. 19, 20. Based on the stipulation of the parties, the Court granted the State

3 of Washington’s motion to intervene in the case. ECF No. 26. The matter is fully 4 briefed and was considered without oral argument. 5 ANALYSIS

6 1. Sufficiency of the Pleading Under Rule 8 7 Ulta contends Plaintiffs have not met the requirements of Fed. R. Civ. P. 8 8(a)(2) by failing to adequately set forth the elements of their claims. Rule 8(a) 9 requires a complaint contain “‘a short and plain statement of the claim showing

10 that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 11 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007) (ellipsis in original) (quoting

13 Conley v. Gibson, 355 U.S. 41, 47 (1957)). In short, a complaint must “fully set[ ] 14 forth who is being sued, for what relief, and on what theory, with enough detail to 15 guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). 16 Ulta contends Plaintiffs’ Complaint contains sparse allegations about their

17 own experiences and does not sufficiently connect the alleged conduct to the 18 Plaintiffs’ individual experiences. The Court disagrees. The Complaint alleges the 19 named Plaintiffs, along with purported class members, received specific emails

20 between January 8, 2022 and July 25, 2025 which contained false or misleading 1 subject lines by implying either: (1) a free gift would be provided unconditionally 2 and at no cost to the recipient when in fact a there is a dollar purchase requirement

3 revealed in the body of the email; or (2) a straightforward discount would be 4 applied to the recipient’s purchase, when in fact major exclusions are revealed in 5 the body of the email. ECF No. 1-1, ¶¶ 36-71. The Complaint sufficiently alleges

6 specific facts: the date and content of the subject emails, that each Plaintiff 7 received them, and the allegedly misleading nature of the subject lines. This is 8 sufficient to put Defendant on notice of the facts upon which the claim is based and 9 to withstand a challenge under Rule 8.

10 2. Failure to State a Claim Under Rule 12(b)(6) 11 Rule 12(b)(6) allows a party to move for dismissal if the plaintiff fails to 12 state a claim upon which relief can be granted. FRCP 12(b)(6). The standard for

13 dismissal under this rule is exacting. When considering a 12(b)(6) motion, the 14 Court accepts the allegations in the complaint as true and construes the pleading in 15 the light most favorable to the party opposing the motion. Lazy Y Ranch Ltd. v. 16 Behrens, 546 F.3d 580, 588 (9th Cir. 2008). A defendant’s request for relief under

17 12(b)(6) will be granted only if there is either a “lack of a cognizable legal theory” 18 or “the absence of sufficient facts alleged under a cognizable legal theory.” Taylor 19 v. Yee, 780 F.3d 928, 935 (9th Cir. 2015); Balistreri v. Pacifica Police Dep’t, 901

20 F.2d 696, 699 (9th Cir. 1990). 1 a. CEMA Claim 2 Ulta contends Plaintiffs did not sufficiently plead the elements of their

3 CEMA claim. CEMA provides: 4 (1) No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission, of a 5 commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, 6 or has reason to know, is held by a Washington resident that . . . (b) Contains false or misleading information in the subject line. 7 RCW 19.190.020(1). Thus, CEMA requires Plaintiffs to plausibly allege Ulta (1) 8 initiated a commercial e-mail; (2) with a false or misleading subject line; (3) to an 9 address the sender knew or had reason to know was held by a Washington resident. 10 RCW 19.190.020(1)(b). There is no dispute Ulta initiated commercial e-mails. The 11 remaining elements are considered in turn. 12 i. Knowledge of Residency 13 Ulta contends the Complaint only hypothesizes about how Ulta potentially 14 knows a customer is Washington resident. “Factual allegations must be enough to 15 raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555 16 (2007), and a “pleading that offers labels and conclusions or a formulaic recitation 17 of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 18 678 (2009) (quoting Twombly, 550 U.S. at 555). 19 The Complaint alleges Ulta knew or had reason to know their commercial 20 emails were sent to Washington residents because: (1) Defendant had a physical 1 Washington residence associated with the recipient; (2) Defendant had access to 2 data indicating the recipient was located in Washington state; or (3) information

3 was available to the Defendant upon request from the registrant of the internet 4 domain name contained in the recipient’s electronic email address.1 ECF No. 1-1, ¶ 5 72.

6 The Complaint further alleges Ulta could know or have reason to know 7 Plaintiffs and potential class members are Washington residents by the following 8 methods: (1) for any person placing an order from Defendant online, Defendant 9 has the email and shipping address for the order; (2) Defendant encourages online

10 shoppers to create accounts where they save their email addresses, shipping 11 addresses, billing addresses, and phone numbers; (3) Defendant offers consumer 12 credit cards and those customers who apply for such cards must provide

13 information including a billing address to Defendant; (4) Defendant tracks the 14 effectiveness of its marketing emails in part by identifying customers who click on 15

16 1 CEMA provides: “For purposes of this section, a person knows that the 17 intended recipient of a commercial electronic mail message is a Washington resident 18 if that information is available, upon request, from the registrant of the internet 19 domain name contained in the recipient's electronic mail address.” RCW

20 10.190.020(2). 1 links in such emails, including identifying their physical location; (5) Defendant 2 utilizes online tracking technologies to identify and locate consumers who click on

3 links contained in marketing emails or visit its website; (6) Defendant employs 4 third parties to create profiles of customers and potential customers, including their 5 email addresses and physical locations; and (7) Defendant knew, should have

6 known, or had reason to know it sends marketing emails to Washington residents 7 due to its presence in the state and the volume of marketing emails it sends to 8 people around the country. ECF No. 1-1, ¶¶ 73-80. These potential methods of 9 obtaining residence information sufficiently support the claim Ulta has “reason to

10 know” the residency of the recipients of its marketing e-mails. RCW 11 19.190.020(1). 12 ii. False or Misleading Subject Lines

13 Ulta contends the Complaint fails to sufficiently allege Ulta’s email subject 14 lines were false or misleading. Ulta argues Plaintiffs have not alleged that Ulta 15 failed to honor any advertised offer or that any named Plaintiff or putative class 16 member was denied a gift or percentage discount upon satisfying the disclosed

17 conditions. For purposes of this motion, the Court accepts as true the “free gift” 18 and “percentage discount” email subject lines identified by Plaintiffs are false or 19 misleading as alleged based on the limitations and restrictions contained in the

20 bodies of the emails. Ulta’s argument fails because CEMA does not require a 1 showing that the Plaintiff was induced to make a purchase by or detrimentally 2 relied upon the email subject line in order to establish a false or misleading subject

3 line. The Complaint alleges sufficient facts setting forth the elements of a CEMA 4 claim to withstand the Motion to Dismiss. 5 b. Consumer Protection Act Claim

6 Ulta contends Plaintiffs’ CPA claim must be dismissed because the 7 Complaint does not allege the elements required for a CPA claim. This argument 8 fails as a matter of law. By statute, a violation of CEMA is a violation of the CPA. 9 RCW 19.190.030; see Harbers v. Eddie Bauer, LLC, 415 F. Supp. 3d 999, 1003

10 (W.D. Wash. 2019); State v. Heckel, 143 Wash. 2d 824, 828 (2001). Furthermore, 11 while the CPA requires a showing of damages, the Washington Supreme Court has 12 recognized an email received in violation of CEMA constitutes an injury. Brown v.

13 Old Navy, LLC, 4 Wash. 3d 580, 592 (2025) (“the injury is receiving the e-mail 14 that violates CEMA”). 15 3. CAN-SPAM PREEMPTION 16 Ulta contends Plaintiffs’ CEMA claim fails because it is expressly

17 preempted by the Controlling the Assault of Non-Solicited Pornography and 18 Marketing Act (CAN-SPAM). 15 U.S.C. §§ 7701-13. A number of courts have 19 considered and rejected this argument. See e.g., Agnew v. Macy’s Retail Holdings,

20 LLC, 2026 WL 764140 (W.D. Wash. March 18, 2026); Kempf v. Fullbeauty 1 Brands Operations, LLC, 2026 WL 395677 (W.D. Wash. Feb. 12, 2026); Ma v. 2 Nike, Inc., 2026 WL 100731 (W.D. Wash. Jan. 14, 2026); Harrington v. Vineyard

3 Vines, LLC, 813 F. Supp. 3d 1218 (W.D. Wash. Dec. 18, 2025); Gordon v. Impulse 4 Mktg. Grp., Inc., 375 F. Supp. 2d 1040, 1045-46 (E.D. Wash. 2005). The Court 5 agrees with these decisions.

6 Congress enacted CAN-SPAM in 2003 to “curb the negative consequences 7 of spam and spamming practices without stifling legitimate commerce.” Gordon, 8 375 F. Supp. 2d at 1045. CAN-SPAM expressly allows States to prohibit by 9 “statute, regulation, or rule” either “falsity or deception” in “any portion of a

10 commercial electronic mail message or information attached thereto.” 15 U.S.C. § 11 7707(b)(1). CEMA’s subject-line provision, RCW 19.190.020(1)(b), falls within 12 this exception: it imposes liability for sending a commercial e-mail that “[c]ontains

13 false or misleading information in the subject line” to Washington residents. Id. 14 Because CEMA’s subject-line provision applies only to false or misleading 15 information, it is not preempted by CAN-SPAM. See Gordon, 375 F. Supp. 2d at 16 1045-46; Ferguson v. Quinstreet, Inc., 2008 WL 3166307, at *9 (W.D. Wash. Aug.

17 5, 2008), aff’d, 348 F. App’x 255 (9th Cir. 2009) (noting “claims actually alleging 18 falsity or deception under CEMA would not be preempted”). 19 Ulta argues the “falsity or deception” exception to CAN-SPAM refers to

20 “traditionally tortious or wrongful conduct,” citing Gordon v. Virtumundo, Inc., 1 575 F.3d 1040, 1062 (9th Cir. 2009). Ulta argues Plaintiffs must therefore plead 2 the essential elements of fraud or deceit to complete its CEMA claim: material

3 misrepresentation, reliance, actual injury, or deceptive intent, and Plaintiffs have 4 not met the heightened particularity requirements for claims alleging fraud or 5 misrepresentation under Rule 9(b). Ulta’s argument fails because CEMA does not

6 “sound in fraud.” Gordon, 375 F. Supp. 2d 1048. Furthermore, Congress opted not 7 to use the word “fraud” in crafting the CAN-SPAM exception. The use of the 8 words “falsity or deception” indicates Congress intended the CAN-SPAM 9 exception to apply more broadly than claims of fraud. See Asis Internet Servs. v.

10 Consumerbargaingiveaways, LLC, 622 F. Supp. 2d 935, 942 (N.D. Cal. 2009). 11 Ulta also argues conflict preemption bars Plaintiffs’ CEMA claim. The 12 Court disagrees. There is no obstacle to businesses complying with both CAN-

13 SPAM and CEMA. Furthermore, because CAN-SPAM specifically allows for state 14 regulation of false or deceptive e-mails, Plaintiffs’ CEMA claim does not 15 undermine Congress’s intent in enacting CAN-SPAM. 16 4. CONSTITUTIONALITY

17 Ulta contends CEMA is facially invalid because it violated the dormant 18 Commerce Clause by controlling commerce beyond Washington and by burdening 19 interstate commerce. The dormant Commerce Clause has three “key strands,”

20 Flynt v. Bonta, 131 F.4th 918, 923 (9th Cir. 2025), which involve (i) a non- 1 discrimination principle, (ii) an “extraterritoriality” principle, and (iii) a burden 2 balancing test under Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844 (1970).

3 The Washington Supreme Court has already held CEMA does not violate the 4 dormant Commerce Clause. Heckel, 143 Wash. 2d at 839 (“In sum, we reject the 5 trial court’s conclusion that the Act violates the dormant Commerce Clause.”).

6 There have been no cases or changes of law since Heckel which suggests a 7 different result. See Kempf, 2026 WL 395677, at *5-6. Furthermore, the United 8 State Supreme Court has rejected similar arguments regarding a per se violation of 9 the dormant Commerce Clause. Nat'l Pork Producers Council v. Ross, 598 U.S.

10 356, 374, 143 S.Ct. 1142 (2023). Nonetheless, the Court considers Ulta’s 11 arguments in turn. 12 a. Non-Discrimination

13 Ulta first argues CEMA discriminates by providing differential treatment of 14 in-state and out-of-state economic interests, benefiting the in-state interests and 15 burdening the out-of-state interests. According to Ulta, CEMA’s resident-triggered 16 liability forces out-of-state competitors to build out Washington-specific

17 segmentation for interstate e-mail campaigns, while retailers operating exclusively 18 in Washington can adopt CEMA as a default rule to avoid retooling costs. Ulta 19 calls this “disparate treatment.” ECF No. 19 at 21. Yet, implicit in the argument is

20 that in-state and out-of-state retailers must all comply with CEMA when e-mailing 1 Washington residents. See Heckel, 143 Wash. 2d at 833 (“The Act applies 2 evenhandedly to in-state and out-of-state spammers”); Kempf, 2026 WL 395677, at

3 *6 (“Regardless of where the sender is located . . . the sender faces potential 4 liability). Further, in expressly giving the states the right to regulate false and 5 misleading e-mail transmissions, Congress was apparently satisfied state

6 legislation would not impose an undue burden on interstate commerce. This 7 argument is not persuasive. 8 b. Extraterritoriality 9 Next, Ulta argues CEMA improperly controls commerce occurring wholly

10 outside of Washington in violation of the extraterritoriality principle. Ulta points 11 out an email generated at its headquarters in Illinois could be transmitted to a 12 Washington resident away at college in another state, subjecting it to liability under

13 CEMA for a transmission entirely outside of Washington. According to Ulta, this 14 demonstrates CEMA is not based on a neutral in-state standard and constitutes 15 regulation of out-of-state marketing in violation of the dormant Commerce Clause, 16 with Washington’s rules effectively exported into every other state. This position

17 ignores that Washington residents remain Washington residents even if they are 18 temporarily out of state, and CEMA only regulates activities targeting Washington 19 residents.

20 1 As the U.S. Supreme Court acknowledged, “[i]n our interconnected national 2 marketplace, many (maybe most) state laws have the ‘practical effect of

3 controlling’ extraterritorial behavior.” Nat'l Pork Producers, 598 U.S. at 374. A 4 rule against such laws would “cast a shadow over laws long understood to 5 represent valid exercises of the States’ constitutionally reserved powers” and

6 would “invite endless litigation and inconsistent results.” Id. at 375. 7 c. Pike Burden Analysis 8 Third, Ulta contends CEMA violates the dormant Commerce Clause because 9 it creates a lack of national uniformity which impedes the flow of interstate goods.

10 Under the Pike balancing analysis, “[s]tate laws that regulate even-handedly to 11 effectuate a legitimate local public interest . . . will be upheld unless the burden 12 imposed on such commerce is clearly excessive in relation to the putative local

13 benefits.” See Flynt, 131 F.4th at 925 (internal quotations and citations omitted). 14 However, a plaintiff must first “demonstrate that a challenged law imposes a 15 ‘substantial’ or ‘significant’ burden on interstate commerce before Pike balancing 16 can occur.” Id. The only burden identified by Ulta is the increased cost of ensuring

17 its emails to Washington residents comply with CEMA. However, increased costs 18 to comply with state regulation alone does not suffice to establish a substantial 19 burden on interstate commerce. Nat’l Pork Producers, 6 F.4th at 1032; Ward v.

20 United Airlines, Inc., 986 F.3d 1234, 1241-42 (9th Cir. 2021). Because Ulta has 1|| identified no substantial or significant burden on interstate commerce under 2|| CEMA; the Court need not weigh the local public interests against the burden imposed on commerce. 4 Accordingly, IT IS ORDERED: 5 1. Ulta’s Motion to Dismiss, ECF No. 19, is DENIED. The Complaint 6|| meets plausibility and specificity requirements. CEMA is not preempted by CAN- 7\|| SPAM and does not violate the dormant Commerce Clause. 8 2. The Court will issue a notice setting a scheduling conference by 9|| separate filing. 10 IT IS SO ORDERED. The District Court Executive is directed to file this Order and provide copies to counsel. 12 DATED April 28, 2026. I 14 "REBECCA L.PENNELL UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20

ORDER NENVING MATION TA NICAATACS _. 14