Judge Pennell Orders Briefing on Standing in Ulta CEMA Cases

U.S. District Judge Rebecca Pennell stayed all pending motions cases, directing the parties to address whether the plaintiffs suffered a concrete, particularized injury and whether the amount in controversy exceeds the $5 million threshold for federal jurisdiction.

Pennell, sitting in the U.S. District Court for the Eastern District of Washington, issued the order on May 14, noting that federal courts have a duty to assure themselves that their jurisdiction is not being exceeded. The order requires briefing on whether CEMA damages should be calculated on a per-email or per-recipient basis to meet diversity or CAFA jurisdictional thresholds.

Ulta, the defendant in all three cases, has argued in its motions to dismiss that the complaints fail to allege actual or concrete injury. As the party that removed the cases to federal court, Ulta bears the burden of establishing subject matter jurisdiction.

Pennell noted that courts in the district have recently remanded or dismissed similar CEMA cases for lack of standing. She cited Nuri v. True Religion Apparel, where a Western District of Washington judge remanded a case in March, and Montes v. Catalyst Brands LLC, where an Eastern District judge dismissed a complaint in December for the same reason.

The judge also pointed to Crooks v. Coty DTC Holdings, LLC, a Maryland federal court’s May 8 remand of a claim under a statute “virtually identical” to Washington’s CEMA, and Mulanena v. Ulta Salon, a Maryland court’s May 4 grant of remand in a case against the same defendant.

Pennell contrasted those recent decisions with Harbers v. Eddie Bauer, LLC, a 2019 Western District of Washington ruling that found an alleged CEMA violation constituted a concrete injury in fact.

Other federal judges in the district have recently required additional briefing on standing and amount in controversy in similar consumer protection suits, including Hutton v. Papa John’s USA, Inc. and Devivo v. Sheex Inc.

If the court determines it lacks jurisdiction, any further proceedings would be moot. Pennell struck all hearing dates cases, including Ulta’s motion to certify an appeal in the Shahpur case and motions to consolidate in all three matters.

Ulta’s unopposed motion to allow five extra pages brief for its motion to consolidate was granted.

The parties are ordered to submit supplemental briefing on the jurisdictional issues. Ulta must file its brief by June 15, 2026. Plaintiffs have until June 29, 2026, to file responsive briefs, which they may file jointly or individually. The State of Washington, appearing as plaintiff-intervenor in all three cases, may file an optional responsive brief date.

Briefs are limited to 10 pages.