Judge Rebecca L. Pennell, of the Eastern District of Washington, denied defendant’s motion to dismiss.
Background. Plaintiffs alleged that Ulta sent Washington consumers emails advertising free gifts without disclosing required minimum-purchase conditions or material exclusions in the subject lines. The challenged campaign ran from January 2022 through July 2025. Plaintiffs asserted CEMA and CPA claims, and the State of Washington intervened. Ulta argued that the complaint lacked specificity, that CEMA was preempted by CAN-SPAM, that the statute required fraud-level pleading, and that applying it to a national email campaign violated the dormant Commerce Clause.
The Court’s Analysis. The court held that the complaint satisfied Rule 8 and Rule 12(b)(6) because CEMA does not require plaintiffs to plead purchase, reliance, or detrimental action to allege a false or misleading subject line. A CEMA violation is also a CPA violation by statute, and Washington authority recognizes receipt of the unlawful email as an injury. The court rejected CAN-SPAM preemption because CEMA falls within the federal exception for state regulation of falsity or deception. Finally, the court found no dormant Commerce Clause violation because Ulta did not identify a substantial or significant burden on interstate commerce; increased compliance costs alone were insufficient. The court also rejected arguments that CEMA regulates extraterritorial conduct or discriminates against out-of-state businesses, and denied the motion to dismiss.
Repperger v. Ulta Salon, Cosms. & Fragrance, Inc., No. 2:25-CV-00526-RLP, 2026 WL 1157157 (E.D. Wash. Apr. 28, 2026).
