govinfo:USCOURTS-mdd-1_25-cv-03766-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND 
 
 * 
KIMBERLY SMITH, et al. * 
 * 
 Plaintiffs, * 
 * Civil Case No.: SAG-25-03766 
 v. * 
 * 
LANE BRYANT BRANDS OPCO LLC * 
 * 
 Defendant. * 
 * 
* * * * * * * * * * 
MEMORANDUM OPINION 
 
Plaintiffs Kimberly Smith and Anne Kellam, on behalf of themselves and all others 
similarly situated, (collectively, “Plaintiffs”) filed this action in the Circuit Court for Baltimore 
City against Defendant Lane Bryant Brands Opco LLC (“Lane Bryant”) , alleging a violation of 
the Maryland Commercial Electronic Mail Act (“MCEMA”). ECF 4. Lane Bryant removed the 
case to this Court, ECF 1, and has now filed a motion to dismiss, ECF 24. Plaintiffs opposed the 
motion to dismiss and, in doing so, raised the issue of their Article III standing and therefore this 
Court’s subject-matter jurisdiction. ECF 31. Lane Bryant then filed a reply, ECF 33. No hearing 
is necessary. See Loc. R. 105.6 (D. Md. 2025). For the reasons that follow , this case will be 
remanded for lack of subject-matter jurisdiction. This Court will not address the motion to dismiss, 
which should be adjudicated in state court. 
I. BACKGROUND 
Plaintiffs’ complaint alleges that Lane Bryant sends Maryland consumers emails with 
intentionally misleading subject lines that either falsely suggest that a sale will end sooner than it 
actually will or that fail to disclose conditions required to obtain discounts or gifts. ECF 19 ¶ 2. 
Plaintiffs bring one claim for violation of the MCEMA, which prohibits the sending of certain 

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emails containing false and misleading information. Id. ¶¶ 92–109; see also Md. Code Ann., Com. 
Law § 14 -3002. Plaintiffs seek attorneys’ fees and statutory damages but do not seek actual 
damages. ECF 19. 
II. LEGAL STANDARD 
Article III of the Constitution authorizes federal courts to resolve only “Cases” and 
“Controversies,” and a case or controversy exists only when a plaintiff has standing. TransUnion 
LLC v. Ramirez , 594 U.S. 413, 423 (2021) (quoting U.S. Const. art III, § 2). Standing thus 
implicates a federal court’s subject-matter jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 
U.S. 83, 88 (1998). Standing requires a plaintiff to show (1) injury in fact, (2) that is caused by the 
conduct of the defendant, and (3) that is likely redressable by a favorable judicial decision. Lujan 
v. Defs. of Wildlife , 504 U.S. 555, 560–61 (1992) . In the removal context, the burden of 
establishing subject-matter jurisdiction lies with the party seeking removal. Mulcahey v. Columbia 
Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). 
III. DISCUSSION 
As noted above, Plaintiffs have raised the issue of their own Article III standing and 
therefore this Court’s subject-matter jurisdiction. Although Plaintiffs have not taken a position as 
to standing, only raising it for this Court’s consideration, a federal court has an independent duty 
to assess its subject-matter jurisdiction. Constantine v. Rectors & Visitors of George Mason Univ., 
411 F.3d 474, 480 (4th Cir. 2005). Accordingly, this Court must determine whether Plaintiffs have 
standing. 
The existence of a statutory right accompanied by a cause of action to vindicate that right 
does not automatically satisfy the injury in fact requirement of standing. Spokeo, Inc. v. Robins , 
578 U.S. 330, 341 (2016). Rather, even in the context of a statutory violation, Article III still 

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requires a showing of concrete harm. Id. Accordingly, a federal court has jurisdiction to hear a 
lawsuit alleging a statutory violation only if that violation allegedly caused concrete harm. 
TransUnion, 594 U.S. at 427. To determine whether an intangible harm constitutes an injury in 
fact, the court should consider whether it has a “close relationship to a harm that has traditionally 
been regarded as providing a basis for a lawsuit in English or American courts.” Spokeo, 578 U.S. 
at 340–41. The Supreme Court has identified reputational harms, disclosure of private information, 
and intrusion upon seclusion as intangible harms having such a close relationship. TransUnion , 
594 U.S. at 425. 
Although the Fourth Circuit previously concluded that a plaintiff in another MCEMA case 
had standing based on the legal interest created by the MCEMA, see Beyond Systems, Inc. v. Kraft 
Foods, Inc., 777 F.3d 712, 716 (4th Cir. 2015), Spokeo and TransUnion have since rejected that 
reasoning. Indeed, the Fourth Circuit has since reiterated that pleading a statutory violation does 
not, in itself, establish a concrete injury for standing purposes. See Garey v. James S. Farrin, P.C., 
35 F.4th 917, 921 (4th Cir. 2022); see also Asabre v. Retail Servs. & Sys., Inc., No. PWG-22-148, 
2022 WL 4326536, at *2 (D. Md. Sept. 19, 2022) (rejecting the reasoning in Kraft in light of the 
subsequent decisions in Spokeo, TransUnion, and Garey). 
Another court in this district determined that a plaintiff lacked Article III standing for a 
nearly identical alleged violation of the MCEMA. See Asabre, 2022 WL 4326536, at *2. In Asabre, 
the plaintiff alleged a violation of the MCEMA based on emails offering discounts that failed to 
include the conditions of the discounts in the subject headings. Id. at *1. The plaintiff alleged no 
harm stemming from these emails and sought only attorneys’ fees and statutory damages . Id. at 
*1–2. The court determined that it need not engage in a protracted analysis regarding whe ther a 
close relationship existed between the alleged injury and one historically recognized because the 

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plaintiff alleged neither an injury nor any facts suggesting that she had incurred an injury. Id. at 
*2. Thus, the court concluded that the plaintiff lacked Article III standing and the court lacked 
subject matter jurisdiction. Id. at *2–3. 
Turning to the facts of this case, t he complaint similarly contains no allegations that 
Plaintiffs suffered any injury from the emails. It does not allege that Plaintiffs themselves were 
misled by the emails or that they took any action in response to receiving the emails. Moreover, 
Plaintiffs seek only attorneys’ fees and statutory damages, rather than actual damages, for which 
the MCEMA also provides. See § 14-3003(1) (providing for damages “in an amount equal to the 
greater of $500 or the recipient ’s act ual damages ”). As in Asabre , this Court cannot consider 
whether the alleged injury has a close relationship to one historically recognized because Plaintiffs 
have alleged no injury. 
Lane Bryant’s argument in support of standing is unpersuasive. Lane Bryant notes that 
Plaintiffs, in their merits arguments, have contended that Lane Bryant’s conduct was tortious. 
According to Lane Bryant, if its conduct was tortious, then the conduct has a close relationship to 
that of a traditional tort for purposes of standing. But the legal standard is not whether the alleged 
conduct has a close relationship to one historically recognized, but whether the alleged intangible 
injury does. As described above, Plaintiffs have alleged no injury. Lane Bryant therefore has not 
met its burden to establish this Court’s subject-matter jurisdiction. 
Accordingly, this Court concludes that Plaintiffs lack Article III standing, and, as a result, 
this Court lacks subject-matter jurisdiction over this case. The case therefore must be remanded to 
state court. 

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IV. CONCLUSION 
For the reasons stated above, this case will be remanded to the Circuit Court for Baltimore 
City for further adjudication, including the still -pending motion to dismiss . A separate Order 
follows. 
 
Dated: June 17, 2026 /s/ 
 Stephanie A. Gallagher 
 United States District Judge 

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