govinfo:USCOURTS-mdd-1_25-cv-03178-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND 
 
JARRETT CARTER, et al., 
on their own behalf and on behalf of all 
others similarly situated 
 Plaintiffs, 
 
 v. 
 
VINEYARD VINES, LLC, 
 Defendant. 
Civil Action No. ELH-25-3178 
 
MEMORANDUM OPINION 
In this putative class action, three named plaintiffs—Maryland residents Jarrett Carter and 
Elizabeth Nielsen, and Indiana resident Brian Ayers —filed suit against Vineyard Vines, LLC 
(“Vineyard Vines”, “Company”, or “VV”), a Connecticut limited liability company. ECF 7, ¶¶ 10-
13. The “Class Action Complaint” (ECF 7) was initially filed in the Circuit Court for Baltimore 
County. Defendant removed the case to federal court on September 24, 2025, on two grounds: 
Diversity jurisdiction under 28 U.S.C. § 1332(a)(1), and the Class Action Fairness Act, 28 U.S.C. 
§ 1332(d)(2) (“CAFA”). See ECF 1. 
Plaintiffs allege that Vineyard Vines violated the Maryland Commercial Electronic Mail 
Act (“MCEMA”), Md. Code §§ 14- 3001 et seq. of the Commercial Law Article (“C.L.”) , and 
Indiana’s Deceptive Commercial Electronic Mail Act (“IDCEMA”), Ind. Code Ann. §§ 24-5-22-
1 et seq . (collectively, the “Email Statutes” or the “Anti -Spam Statutes” ), by disseminating 
marketing emails containing false or misleading information in the subject lines “with the capacity, 
tendency, or effect of deceiving the recipient.” ECF 7, ¶ 2. The Email Statutes permit a plaintiff 
to recover $500 for each statutory violation. C.L. § 14-3003; Ind. Code Ann. § 24-5-22-10. 

2 
 
The Complaint contains two counts. Count One alleges violations of MCEMA on behalf 
of a Maryland Class, and Count Two alleges violations of IDCEMA on behalf of an Indiana Class. 
Id. ¶¶ 94-131. Plaintiffs seek class certification, statutory and exemplary damages, injunctive 
relief, attorneys’ fees, and costs. Id. at 43-45.1 
Plaintiffs have moved to remand the case to State court. See ECF 6 (“Remand Motion”). 
However, they do not argue for a remand based on a lack of diversity or a failure to satisfy CAFA, 
i.e., the grounds asserted by the Company as a basis for removal . Rather, they contend that they 
have not alleged facts to support a finding that they have Article III standing. Plaintiffs posit that 
they merely allege statutory violations by VV and, under federal law, a statutory violation, without 
more, does not establish a concrete injury. Id. at 1, 5. Accordingly, plaintiffs assert that their 
claims, which arise under state statutes , must be pursued in a state court. Id. at 1 (citing 
TransUnion LLC v. Ramirez, 594 U.S. 413 (2021); Spokeo, Inc. v. Robins, 578 U.S. 330 (2016)).2 
 
1 Throughout the Memorandum Opinion, the Court cites to the electronic pagination. 
However, the electronic pagination does not necessarily correspond to the page number imprinted 
on a particular submission. 
2 Defendant does not contest the Court’s personal jurisdiction over it as to Ayers's 
IDCEMA claim, which arises from emails sent by VV to Indiana, not Maryland. But, the case of 
Bristol-Myers Squibb Co. v. Superior Court , 582 U.S. 255 (2017) , requires specific personal 
jurisdiction over defendant as to each named plaintiff's claims in a putative class action. That is, 
the named plaintiff's claims must “ aris[e] out of or relat[e] to the defendant's contacts with the 
forum.” Id. at 262 (cleaned up). 
Defendant had contact with Maryland as to the Maryland plaintiffs. But, under Bristol-
Myers Squibb Co., 582 U.S. at 260, defendant’s Maryland contacts do not extend to support 
specific personal jurisdiction over defendant as to Ayers’s claim. See Lincoln v. Ford Motor Co., 
JKB-19-2741, 2020 WL 5820985, at *5 (D. Md. Sept. 29, 2020) (“[T]his Court will require 
each named plaintiff in a class action suit to demonstrate personal jurisdiction over a 
defendant”); Roy v. FedEx Ground Package Sys ., 353 F. Supp. 3d 43, 56- 57 (D. Mass. 
2018) (“District courts generally have extended the specific jurisdiction principles articulated 
in Bristol-Myers to the analysis of personal jurisdiction over named plaintiffs in 
federal class actions.”); Shell v. Shell Oil Co. , 165 F. Supp. 2d 1096, 1107 n.5 (C.D. Cal. 
2001) (stating that “it is by now well settled that [venue and personal jurisdiction requirements] to 

3 
 
Defendant opposes the Remand Motion. See ECF 30 (the “Opposition”). It maintains that 
the alleged transmission of voluminous and deceptive marketing emails is sufficient to constitute 
the injury required to establish Article III standing. Id. at 3. 
Plaintiffs replied. ECF 41 (the “Reply”). And, for the first time, they request seek 
attorney’s fees, pursuant to 28 U.S.C. § 1447(c) . Id. at 26. According to plaintiffs, defendant’s 
mischaracterization of the Complaint and misrepresentations of the current state of the law warrant 
an award of legal fees. Id. at 27. 
Defendant has filed a “Motion for Leave to File Surreply in Opposition to Plaintiffs’ 
Motion to Remand.” See ECF 43 (“Surreply Motion”). Despite the title, the Surreply Motion only 
pertains to plaintiffs’ request for attorneys’ fees in connection with the Remand Motion. Id. at 2. 
As noted, plaintiffs made that request in their Reply. 
In addition, defendant has filed a “Motion to Dismiss Plaintiffs’ Complaint.” See ECF 31 
(“Motion to Dismiss”). Plaintiff s oppose the Motion to Dismiss. See ECF 44. Defendant has 
replied. See ECF 50. 
The parties have also filed several notices of supplemental authority. See ECF 51; ECF 
52; ECF 53; ECF 54; ECF 55; ECF 56; ECF 59; ECF 60; ECF 61. On March 10, 2026, defendant 
responded to one of plaintiffs’ notices of supplemental authority, arguing that the cases identified 
 
[file] suit must be satisfied for each and every named plaintiff for the suit to go forward”) 
(emphasis in the original). 
In the motion to dismiss filed by Vineyard Vines (ECF 31), the Company does not raise an 
argument as to personal jurisdiction with respect to Ayers . Pursuant to Fed. R. Civ. P. 12(b)(2), 
12(g), and 12(h)(1), VV appears to have waived its right in this Court to assert lack of personal 
jurisdiction. In any event, because the Court concludes it lacks subject matter jurisdiction , and 
because defendant has not raised the issue of personal jurisdiction as to Ayers, I need not address 
whether the Court has personal jurisdiction over Vineyard Vines with respect to Ayers’s claim. I 
express no opinion as to whether a waiver in this Court precludes an assertion of the defense on 
remand. 

4 
 
by plaintiffs are inapplicable and providing additional authorities. ECF 56. Plaintiffs have moved 
to strike that response, characterizing it as “an improper surreply.” ECF 57 (“Motion to Strike”), 
at 1. VV opposes the Motion to Strike. ECF 58. 
No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that 
follow, I shall grant the Remand Motion. But, I shall deny plaintiffs’ request for attorneys’ fees. 
Therefore, I shall deny , as moot, defendant’s Surreply Motion. I shall also deny defendant’s 
Motion to Dismiss, without prejudice to defendant’s right to renew the motion in State court. In 
addition, I shall deny the Motion to Strike. 
I. Factual Summary3 
Plaintiffs allege that Vineyard Vines engaged in two types of deceptive email practices. 
See ECF 7. First, Vineyard Vines sent emails with subject lines representing that a sale or 
promotion was ending imminently, using phrases such as “FINAL HOURS,” “ENDS TONIGHT,” 
“LAST DAY, ” and “LAST CHANCE ,” when, in fact, the promotions continued beyond the 
advertised end dates, often until the next day. Id. ¶¶ 2, 28-40. Vineyard Vines would then send 
follow-up emails announcing that the sales had been “EXTENDED,” when, according to plaintiffs, 
the extension was never a genuine extension at all . Id. ¶ 29. Rather, it was part of a pre-planned 
marketing strategy. Id. Second, the Company sent emails advertising a “ free gift, ” without 
disclosing that the recipient was required to make a minimum purchase , ranging from $150 to 
$250, to obtain the gift. Id. ¶¶ 41-47. In other words, “the ‘free gift’ was not actually free . . . .” 
Id. ¶ 42. 
The Complaint provides numerous examples of both practices. With respect to false 
urgency, on June 15, 2025, Vineyard Vines sent an email with the subject line “Today Only: FREE 
 
3 The Factual Summary is drawn from the Complaint. ECF 7. 

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SHIPPING On All Orders + 40% Off Tees. ” Id. ¶ 30; see id. ¶ 33. The following day, June 16, 
2025, Vineyard Vines sent an email stating: “LAST DAY: 40% Off Tees & More Summer Styles!” 
Id. ¶ 31; see id. ¶¶ 34, 38. Yet , the next day, on June 17, 2025, the Company sent an email 
announcing “40% Tees + 30% Off Shorts, Polos & Swim EXTENDED [.]” Id. ¶ 32. T hen, on 
June 19, 2025, Vineyard Vines sent an email with the subject line “IT'S ON! 40% Off Tees + 30% 
Off Summer Styles,” demonstrating that the sale had never actually ended, as represented. Id. ¶ 
38. As another example, on May 11, 2025, Vineyard Vines sent an email stating “ ENDS 
TONIGHT: 50% Off Everything! ,” only to send an email the very next day, May 12, 2025, 
announcing “NOW EXTENDED: 50% Off Everything.” Id. ¶¶ 35, 36. Similarly, on November 
20, 2024, Vineyard Vines sent an email with a subject line stating: “ONLINE BLACK FRIDAY 
SALE ENDS TONIGHT!” Id. ¶ 37. And, on November 21, 2024, the Company followed up with 
an email with subject line: “Online Black Friday Sale EXTENDED TODAY ONLY.” Id. 
With respect to the “free gift” misrepresentations, on May 9, 2024, Vineyard Vines sent an 
email with the subject line “ OUTLET: Stop In For A FREE GIFT For Mothers Day,” without 
disclosing that customers had to spend at least $250 to obtain the gift. Id. ¶ 41. Vineyard Vines 
also sent an email on April 25, 2025, with the subject line “In Stores Tomorrow: FREE GIFT For 
Mom!,” without disclosing the same $250 minimum purchase requirement. Id. ¶¶ 43, 44. 
Likewise, on December 2, 2024, Vineyard Vines sent multiple emails advertising a “Free Gift” in 
connection with its Cyber Monday sale , including subject lines such as “ Cyber Monday: Up To 
60% Off SITEWIDE + Free Gift!” and “FREE Gift AND Up To 60% Off Sitewide,” but without 
disclosing that a minimum purchase of $150 was required. Id. ¶¶ 45-47. 
According to plaintiffs, Vineyard Vines may send a single consumer up to five marketing 
emails per day and commonly sends three per day, many advertising purportedly limited- time 

6 
 
offers. Id. ¶ 27. Further, plaintiffs allege that Vineyard Vines knew or had reason to know that 
the recipients of these emails were Maryland and Indiana residents, based on shipping and billing 
addresses associated with customer accounts, telephone area codes, in-store account sign-ups, and 
various “on tracking technologies.” Id. ¶ 53; see id. ¶¶ 48-56. 
Moreover, Vineyard Vines encourages its shoppers to create online accounts. Id. ¶ 51. 
Plaintiffs allege: “Customers save information in their Vineyard Vines accounts along with their 
email address, such as shipping addresses, billing addresses, and phone numbers.” Id. According 
to plaintiffs, “discovery will show that Vineyard Vines employs methods to track the effectiveness 
of its marketing emails and to identify consumers that click on links contained in Vineyard Vines’s 
marketing emails, including by identifying their physical location.” Id. ¶ 52. 
Each of the three named plaintiff s, Carter, Nielsen, and Ayers , had an account with 
Vineyard Vines, and provided defendant with their email addresses, shipping addresses, billing 
addresses, and phone numbers. Id. ¶¶ 60, 67, 74, 101, 120. Those accounts reflect home addresses 
in Maryland for Carter and Nielsen and in Indiana for Ayers. Id. ¶¶ 60, 67, 74. Plaintiffs made 
purchases through those accounts that were delivered to their respective residences. Id. 
Carter identified at least 39 allegedly deceptive emails received between December 2023 
and July 2025; Nielsen identified at least 44; Ayers identified at least 32. Id. ¶ 78. Plaintiffs note 
that these figures are likely underestimated, as they deleted some of the emails they received from 
Vineyard Vines. Id. And, plaintiffs continue to receive emails from Vineyard Vines with allegedly 
false and misleading information in the subject lines. Id. 
 
 
 

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II. Legal Standards 
A. 
Under 28 U.S.C. § 1441(a), the general removal statute, “any civil action brought in a State 
court of which the district courts of the United States have original jurisdiction” may be “removed 
by the defendant or the defendants, to the district court of the United States for the district and 
division embracing the place where such action is pendi ng.” But, “removal jurisdiction raises 
significant federalism concerns.” Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 
(4th Cir. 1994) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)). 
In particular, f ederal courts are “courts of limited jurisdiction” and “possess only that 
power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 
U.S. 375, 377 (1994) ; see Home Buyers Warranty Corp. v. Hanna, 750 F.3d 427, 432 (4th Cir. 
2014). They “may not exercise jurisdiction absent a statutory basis.” Exxon Mobil Corp. v. 
Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) . Therefore, a federal court must presume that a 
case lies outside its limited jurisdiction unless and until jurisdiction has been shown to be 
proper. United States v. Poole , 531 F.3d 263, 274 (4th Cir. 2008) (citing Kokkonen, 511 U.S. at 
377). And, Congress may not confer jurisdiction absent a constitutional basis. Shamrock Oil , 313 
U.S. at 108–09 (“The power reserved to the states under the Constitution to provide for the 
determination of controversies in their courts, may be restricted only by the action of Congress in 
conformity to the Judiciary Articles of the Constitution.” ). Accordingly, courts “must strictly 
construe” removal statutes and resolve all doubts in favor of remanding a case to state court. 
Mulcahey, 29 F.3d at 151. 
The burden of demonstrating jurisdiction and the propriety of removal rests with the 
removing party. See McBurney v. Cuccinelli , 616 F.3d 393, 408 (4th Cir. 2010) (Agee, J., 

8 
 
concurring in part and dissenting in part) , aff'd sub nom. McBurney v. Young, 569 U.S. 221 
(2013); Robb Evans & Assocs., LLC v. Holibaugh, 609 F.3d 359, 362 (4th Cir. 2010) ; Dixon v. 
Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (en banc); Mulcahey, 29 F.3d at 151. 
Therefore, “[i]f a plaintiff files suit in state court and the defendant seeks to adjudicate the matter 
in federal court through removal, it is the defendant who carries the burden of alleging in his notice 
of removal and, if challenged, demonstrating the court's jurisdiction over the matter.” Strawn v. 
AT&T Mobility LLC , 530 F.3d 293, 296 (4th Cir. 2008) . In this way, a failure of proof that 
jurisdiction exists cuts against the removing party. And, if “a case was not properly removed, 
because it was not within the original jurisdiction” of the federal court, then “the district court must 
remand [the case] to the state court from which it was removed.” Franchise Tax Bd. of State of 
Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 8 (1983) (citing 28 U.S.C. § 1447(c)). 
Of import, “ [t]he determination of jurisdiction is based only on the allegations in the 
plaintiff’s well-pleaded complaint —not on any issue the defendant may raise.” Royal Canin 
U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 26 (2025) (citation omitted); see also Black v. Mantei & 
Assocs., Ltd., 145 F.4th 528, 535 (4th Cir. 2025) (same); Laufer v. Naranda Hotels, LLC, 60 F.4th 
156, 161 (4th Cir. 2023) (“A district court may limit its standing inquiry to the allegations of the 
complaint”). Moreover, “[j]urisdiction may not be sustained on a theory that the plaintiff has not 
advanced.” Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 809 n.6 (1986). 
B. 
As noted, defendant removed the case from State court, asserting diversity jurisdiction and 
jurisdiction under CAFA. See ECF 1. But, as indicated, plaintiffs do not challenge either statutory 
basis for removal . See ECF 6 at 1. Rather, they contest standing under Article III of the 
Constitution. And, the Court has an independent duty to determine whether it possesses subject 

9 
 
matter jurisdiction. Wells v. Johnson, 150 F.4th 289, 297 (4th Cir. 2025) ( stating that “federal 
courts must confirm for themselves that they have jurisdiction. That duty includes ensuring that a 
plaintiff has standing.”). 
1. 
Diversity jurisdiction under 28 U.S.C. § 1332(a)(1) requires: (1) C omplete diversity of 
citizenship between all plaintiffs and all defendants; and (2) an amount in controversy exceeding 
$75,000, exclusive of interest and costs, as to each plaintiff. Exxon Mobil Corp. v. Allapattah 
Servs., Inc., 545 U.S. 546, 552 (2005). 
Plaintiffs are domiciled in Maryland and Indiana. ECF 7, ¶¶ 10-12. Vineyard Vines is a 
Connecticut limited liability company organized in the State of Connecticut. Id. ¶ 13. In its Notice 
of Removal, defendant states: “The members of Vineyard Vines are Shepherd Murray, Ian Murray, 
and their respective family trusts, for which they are the sole trustees. Shepherd Murray and Ian 
Murray are both domiciled in the State of Connecticut and, therefore, are citizens of the State of 
Connecticut for removal purposes. Because both Shephard [sic] Murray and Ian Murray are 
citizens of the State of Connecticut, so are the family trusts for which they serve as trustees.” ECF 
1 at 5. 
For diversity purposes, the citizenship of a limited liability company “is determined by the 
citizenship of all of its members.” Cent. W. Va. Energy Co., Inc. v. Mountain State Carbon, LLC, 
636 F.3d 101, 103 (4th Cir. 2011). In the Fourth Circuit, “ [i]t is an open question . . . whether 
the citizenship of . . . trusts . . . is based on the citizenship of their shareholder beneficiaries 
or trustees.” Walmart Real Est. Bus. Tr. v. Quarterfield Partners LLC, 2025 WL 1577562, at *3 
(4th Cir. June 4, 2025); see Oak Plaza, LLC v. Buckingham, DKC 22-0231, 2022 WL 1591404, at 
*6 (D. Md. May 19, 2022) (“Trust citizenship is a subject of continuing confusion.”). The Supreme 

10 
 
Court has said that although an unincorporated entity sued in its own name takes the citizenship 
of all its members, “when a trustee files a lawsuit or is sued in her own name, her citizenship is all 
that matters for diversity purposes.” Americold Realty Trust v. ConAgra Foods, Inc., 577 U.S. 378, 
383 (2016). 
Applying Americold, “other courts of appeals have . . . found that the citizenship of a 
business trust is determined based on the citizenship of its members, while the citizenship of a 
traditional trust is based on the citizenship of its trustee .” Cartwright v. SSC Yanceyville 
Operating Company, LLC, 2018 WL 6680925, at *4 (M.D.N.C. Dec. 19, 2018) (emphasis added) 
(citing GBForefront, L.P. v. Forefront Mgmt. Grp., LLC , 888 F.3d 29, 32, 39- 41 (3d Cir. 
2018); Raymond Loubier Irrevocable Trust v. Loubier, 858 F.3d 719, 722, 725-31 (2d Cir. 2017); 
Wang v. New Mighty U.S. Trust, 843 F.3d 487, 489-95 (D.C. Cir. 2016) (also defining traditional 
trust)). Under the rule adopted by these Circuits addressing the question post-Americold, the trust 
takes the citizenship of its trustees alone. Therefore, given that the Murrays are domiciled in 
Connecticut, t he trust is a Connecticut citizen . Accordingly, at this stage, I am satisfied that 
Vineyard Vines is a citizen of the State of Connecticut. 
The requisite amount in controversy for diversity jurisdiction is met in a class action if at 
least one of the named plaintiffs has a claim exceeding $75,000. See, e.g., Rosmer v. Pfizer Inc., 
263 F.3d 110, 122 (4th Cir. 2001). In a removal posture, the defendant need only allege the 
jurisdictional amount through a short and plain statement containing “ a plausible allegation that 
the amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating 
Co. v. Owens, 574 U.S. 81, 88 (2014). “Generally, attorney’s fees are not included in the amount-
in-controversy calculation, but courts have created two exceptions to this rule: (1) If the fees are 

11 
 
provided for by contract; or (2) if a statute mandates or allows payment of attorney’s fees .” 
Francis v. Allstate Ins. Co., 709 F.3d 362, 368 (4th Cir. 2013) (citation omitted) (emphasis added). 
Where, as here, the plaintiffs do not contest the amount in controversy, the Court need only 
satisfy itself that the defendant’ s allegations are plausible on the face of the pleadings and the 
notice of removal. Maryland v. 3M Co., 130 F.4th 380, 387 (4th Cir. 2025), cert. denied, ___ U.S. 
___, 2026 WL 568301 (Mar. 2, 2026). The relevant question “is not what the plaintiff will actually 
recover, but rather the amount that will be put at issue in the course of the litigation.” Ayers v. 
CIOX Health, LLC, 735 F. Supp. 3d 607, 613 (D. Md. 2024) (internal quotation marks and citation 
omitted). As relevant here, the amount in controversy aggregates three components: (1) Actual 
and statutory damages; (2) attorney’s fees where authorized by statute, Francis , 709 F.3d at 368; 
and (3) the value of any injunctive relief, measured either by its value to the plaintiff or the cost of 
compliance to the defendant. JTH Tax, Inc. v. Frashier, 624 F.3d 635, 639 (4th Cir. 2010). 
Applying that framework, I am satisfied that the monetary threshold is met as to each 
named plaintiff. To be sure, plaintiffs’ footnoted damages calculations identify only $19,500 for 
Carter, $22,000 for Nielsen, and $16,000 for Ayers in statutory damages tied to specifically 
enumerated emails. ECF 7 at 44 nn.1–3. But, the Complaint itself makes clear that those figures 
are underestimated. Each plaintiff alleges receipt of “at least” the enumerated emails; asserts that 
Vineyard Vines “ commonly” sent thr ee marketing emails per day ; that plaintiffs continue to 
receive such emails; and that additional emails have been deleted and will be identified through 
discovery. ECF 7, ¶¶ 27, 58, 65, 72, 78. Should these allegations prove true, the statutory damages 
would exceed $75,000, as the threshold corresponds to just 150 unlawful emails per plaintiff at the 
statutory damages rate of $500 per emai l. In my view, these figures are plausibly supported by 
plaintiffs’ allegations. 

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Further, the fee-shifting provisions of MCEMA § 14-3003 and Indiana Code § 24-5-22-10 
place additional sums in controversy. Under the statutes, a defendant who is in violation is liable 
for attorney’s fees. See C.L. § 14- 3003(c) (“A person who violates this subtitle is liable for 
reasonable attorney’s fees”); Ind. Code Ann. § 24-5-22-10 (providing that a prevailing plaintiff is 
entitled to “reasonable attorney's fees and other litigation costs reasonably incurred in connection 
with the action”). 
Moreover, plaintiffs’ request for injunctive relief requiring Vineyard Vines to restructure 
the content of its marketing emails on a going-forward basis adds still further compliance costs to 
the calculation. See ECF 1 at 7. When a complaint seeks equitable relief, “the relevant inquiry is 
whether the direct pecuniary value of the right the plaintiff seeks to enforce, or the cost to the 
defendant of complying with any prospective equitable relief, exceeds $75,000.” Cossentino 
Contracting Co. v. CSX Transp., Inc., ABA-24-01883, 2024 WL 4644653, at *3 (D. Md. Oct. 30, 
2024); see JTH Tax, Inc., 624 F.3d at 639 ( concluding that “ the district court should have 
considered not only the amount of money damages [plaintiff] requested but also the injunctive 
relief it sought when determining jurisdiction”). 
Here, plaintiffs expressly seek an order enjoining V V from continuing to disseminate 
allegedly unlawful emails , pursuant to IDCEMA . ECF 7, ¶¶ 7, 83(g), Prayer for Relief ¶ F. 
Defendant contends that the injunction would presumably require Vineyard Vines to restructure 
its marketing-email program so that all terms and conditions applicable to every advertised sale 
are disclosed not only in the body of each email, as is allegedly the current practice, but also in the 
subject line itself. ECF 1 at 20–21. According to Vineyard Vines, compliance with such an 
injunction would entail meaningful operational changes, including the addition of compliance 
personnel to vet every marketing email going forward, and those compliance costs would “exceed 

13 
 
$75,000 in the first year alone ”, with additional costs accruing in subsequent years. Id. at 21 
(emphasis in original). At this stage, that representation is plausible, and plaintiffs do not contend 
otherwise. 
Notably, “[i]n many removal cases, a defendant’s allegations rely to some extent on 
reasonable estimates, inferences, and deductions.” Scott v. Cricket Commc’ns, LLC, 865 F.3d 189, 
196 (4th Cir. 2017). Here, Vineyard Vines has plausibly demonstrated that diversity jurisdiction 
is proper. In aggregate, plaintiffs’ statutory damages, attorney’s fees, and injunctive relief 
plausibly exceed $75,000 as to each named plaintiff, and the amount -in-controversy requirement 
of § 1332(a)(1) is satisfied. Therefore, in my view, diversity jurisdiction under 28 U.S.C. § 
1332(a)(1) is properly invoked, and removal on that basis was appropriate. 
2. 
In the alternative, defendant contends that the Court has original jurisdiction over this 
action pursuant to CAFA. ECF 1 at 22. Under CAFA, federal jurisdiction over a class action 
requires: (a) Minimal diversity, i.e., that at least one class member be a citizen of a different state 
than any defendant; (b) an aggregate class of at least 100 members; and (c) an aggregate amount 
in controversy exceeding $5,000,000, exclusive of interest and costs. 28 U.S.C. § 1332(d)(2)( A), 
(d)(5)(B), (d)(6). 
The first two requirements are satisfied . The named Maryland plaintiffs and the named 
Indiana plaintiff are citizens of states different from Vineyard Vines, a Connecticut citizen , as 
discussed above. And, plaintiffs allege that the Maryland and Indiana Classes consist of “at a 
minimum” fifty members each, therefore satisfying the 100 member minimum imposed by CAFA. 
ECF 7, ¶ 81. 

14 
 
I turn to the third requirement of CAFA jurisdiction, which is the amount in controversy. 
“In any class action, the claims of the individual class members shall be aggregated to determine 
whether the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest 
and costs.” 28 U.S.C. § 1332(d)(6). Of import, plaintiffs seek to certify classes that extend to 
“four years before the date of the filing of this complaint”. ECF 7, ¶ 79. 
Carter, a Maryland plaintiff, claims damages of $19,500 (ECF 7 at 44 n.1) for a period of 
approximately twenty months (id. ¶¶ 61(a)–(v)), which yields an average of $975 per month. 
Nielsen, who is also a Maryland plaintiff, claims $22,000 in statutory damages (id. at 44 n.2) over 
approximately eighteen months (id. ¶¶ 68(a)–(r)), which yields an average of $1,222 per month. 
Id. at 44 n.2. For Carter, projecting $975 across plaintiffs’ desired four-year class period equates 
to $46,800 per class member. For Nielsen, this equates to $58,656 per class member across the 
four-year class period . These figures would require the Maryland Class to contain 107 and 86 
members, respectively, to place more than $5,000,000 at issue. 
Ayers, the sole Indiana plaintiff, claims damages of $16,000 (id. at 44 n.3) for a period of 
approximately eight months. Id. ¶¶ 75(a)–(n). These damages yield an average of $2,000 per 
month. Projecting $2,000 across plaintiffs ’ four-year class period equates to $96,000 per class 
member. Thus, the Indiana Class need contain only 53 members to place more than $5,000,000 
in issue. 
Plaintiffs allege that each class consists of “ at a minimum” fifty members. ECF 7, ¶ 81. 
But, that figure is expressly identified as a floor and, given plaintiffs’ allegations regarding the 
volume and frequency of VV’s marketing emails over a four-year class period, it is plausible that 
the actual class sizes substantially exceed the modest thresholds (107, 86, and 53 members) needed 
to place more than $5,000,000 at issue. 

15 
 
As noted, the Complaint makes clear that the stated damages for the named plaintiffs are 
underinclusive, as plaintiffs “are not presently able to identify all the emails with false and 
misleading subject lines they have received.” Id. ¶ 78. But, “discovery will show the full number 
of emails Vineyard Vines has sent throughout the relevant time period.” Id. Further, defendant 
represents that “[i]n reality, the Maryland Class consists of significantly more than 107 putative 
class members ” and “the Indiana Class consists of significantly more than 52 putative class 
members.” ECF 1 at 27. 
The Email Statutes also authorize attorney’s fees. See C.L. § 14-3003(c); Ind. Code Ann. 
§ 24-5-22-10. And, defendant maintains : “In class action lawsuits, ‘ [a]ttorneys’ fees awarded 
under the percentage of recovery method are generally between twenty-five (25) percent and thirty 
(30) percent of fund . . . .’” ECF 1 at 28 (quoting Singleton v. Domino's Pizza, LLC, 976 F. Supp. 
2d 665, 684 (D. Md. 2013)). Applying even the lower end of this range to the statutory damages 
further inflates the amount at issue. 
Based on the alleged volume of emails, the four -year class period, attorneys’ fees, and 
defendant’s representations, I am satisfied that the $5,000,000 minimum threshold under CAFA is 
met. In my view, defendant ’s representation that the aggregate amount in controversy exceeds 
$5,000,000 is plausible, and CAFA jurisdiction is established under § 1332(d)(2). 
3. 
As indicated, plaintiffs contend that a remand is necessary because they lack Article III 
standing. ECF 6 at 1. 
To invoke the power of a federal court, a plaintiff must demonstrate that he or she has 
standing under Article III of the Constitution. See Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 
2017); Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011) ; see also Frazier v. Prince George’s 

16 
 
Cnty, Maryland, 140 F.4th 556, 562 (4th Cir. 2025) (“The jurisdiction of federal courts is defined 
and limited by Article III of the Constitution.”) (citations and internal quotation marks omitted) . 
Indeed, “[i]t is axiomatic that the Article III standing requirements apply to all actions in the federal 
courts . . . .” Benham v. City of Charlotte, N.C., 635 F.3d 129, 135 (4th Cir. 2011) . Therefore, a 
“federal court cannot adjudicate a suit’s merits without first ensuring it has subject matter 
jurisdiction . . . .” ColonialWebb Contractors Co. v. Hill Phoenix, Inc., ___ F.4th ___, 2026 WL 
1204647, at *3 (4th Cir. May 4, 2026) ; see In re Trump, 958 F.3d 274 (4th Cir. 2020) (en banc) 
(“The requirements for Article III standing are well established, and they apply in all cases 
regardless of the plaintiff or the particular theory of standing being asserted.”) (Niemeyer, J., 
dissenting, joined by Wilkinson, Agee, Quattlebaum, and Rushing, JJ.), vacated on other grounds 
sub nom. Trump v. D.C., 141 S.Ct. 1262 (2021). 
Accordingly, whether a plaintiff has Article III standing is a threshold question in every 
federal case. Warth v. Seldin, 422 U.S. 490, 498 (1975) ; see Steel Co. v. Citizens for a Better 
Env't, 523 U.S. 83, 88– 102 (1998) (recognizing that standing to maintain suit implicates the 
court’s jurisdiction to entertain suit and is thus a threshold question to be resolved before the 
merits); Albert v. Lierman , 152 F.4th 554, 559 (4th Cir. 2025) (“[S]tanding and ripeness are 
threshold jurisdictional issues to be de cided before a court considers the merits of a case[.]”); N. 
Virginia Hemp & Agric., LLC v. Virginia, 125 F.4th 472, 488 (4th Cir. 2025) (describing standing 
as the “threshold question”); Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 343 (4th Cir. 2017) 
(same); Beyond Systems, Inc. v. Kraft Foods, Inc., 777 F.3d 712, 715 (4th Cir. 2015) (“As an initial 
matter, we are bound to address the subject matter jurisdiction issue of whether [plaintiff] had 
Article III standing.”). 

17 
 
It follows that a case may proceed in federal court only if a plaintiff’s allegations satisfy 
the requirements of Article III, which reflect the “constitutional minimum of standing.” Lujan v. 
Defenders of Wildlife, 504 U.S. 555, 560 (1992). If a plaintiff lacks Article III standing, the court 
lacks subject matter jurisdiction to hear the claim. See White Tail Park, Inc. v. Stroube, 413 F.3d 
451, 458–59 (4th Cir. 2005). And, where the case has been removed from a state court, the court 
must remand the case to the state court if the plaintiff lacks standing. See 28 U.S.C. § 1447(c) (“If 
at any time before final judgment it appears that the district court lacks subject matter jurisdiction, 
the case shall be remanded.”). Indeed, “just as a district court must dismiss a case originally filed 
in federal court if it ‘determines at any time that it lacks subject-matter jurisdiction,’ Fed. R. Civ. 
P. 12(h)(3), it also must remand whenever it reaches the same conclusion about a case that was 
removed from state court, see 28 U.S.C. § 1447(c).” ColonialWebb Contractors Co., 2026 WL 
1204647, at *3; see Davis v. First Nat'l Bank of Pennsylvania, SAG-24-1575, 2024 WL 4007947, 
at *3 (D. Md. Aug. 30, 2024) ( “Where a federal court finds a case that has been removed from 
state court . . . does not satisfy the requirements of Article III standing, it is obligated to remand 
that matter to state court.”). 
C. 
It is a bedrock principle that Article III of the Constitution “confines the federal judicial 
power to the resolution of ‘Cases’ and ‘Controversies.’” TransUnion, 594 U.S. at 423. Indeed, 
“‘no principle is more fundamental to the judiciary’s proper role in our system of government than 
the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’” Spokeo, 
578 U.S. at 337 (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)); see Murthy v. Missouri, 603 
U.S. 43, 56 (2024) (“Article III of the Constitution limits the jurisdiction of federal courts to 
‘Cases’ and ‘Controversies.’”); see also Fed. Election Comm’n v. Cruz, 596 U.S. 289, 295 (2022) 

18 
 
(“The Constitution limits federal courts to deciding ‘Cases’ and ‘Controversies.’”) (quoting Art. 
III, § 2); Carney v. Adams, 592 U.S. 53, 58 (2020) (recognizing that Article III requires “a genuine, 
live dispute between adverse parties . . .”); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) 
(“Article III of the Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and 
‘Controversies.’”); Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (It is fundamental that 
Article III of the Federal Constitution confines the federal courts to adjudicating “actual, ongoing 
cases or controversies.”); Opiotennione v. Bozzuto Mgmt. Co., 130 F.4th 149, 153 (4th Cir. 2025) 
(“Article III of the constitution limits the judicial power of the United States to ‘Cases’ and 
‘Controversies.’”); Laufer, 60 F.4th at 161 (same). 
A “case or controversy exists only when at least one plaintiff” establishes standing to sue. 
Murthy, 603 U.S. at 57 (citing Raines, 521 U.S. at 818). Notably, “the doctrine of standing [serves] 
as a means to implement” the case or controversy requirement. Laufer , 60 F.4th at 161; see 
TransUnion, 594 U.S. at 423 (“For there to be a case or controversy under Article III, the plaintiff 
must have . . . standing.”); Spoke o, 578 U.S. at 338 (“Standing to sue is a doctrine rooted in the 
traditional understanding of a case or controversy.”); Raines , 521 U.S. at 818 (“One element of 
the case -or-controversy requirement” is that a plaintiff must establish standing to sue). “The 
standing inquiry asks whether a plaintiff ha[s] the requisite stake in the outcome of a case . . . .” 
Deal v. Mercer Cnty. Bd. of Educ., 911 F.3d 183, 187 (4th Cir. 2018). 
Federal courts “do not adjudicate hypothetical or abstract disputes.” TransUnion, 594 U.S. 
at 423. Nor do the courts “exercise general legal oversight” of other government branches, id., or 
render “advisory opinions.” Id. at 424. “Federal courts can only review statutes and executive 
actions when necessary ‘to redress or prevent actual or imminently threatened injury to persons 

19 
 
caused by . . . official violation of law.’” Murthy, 603 U.S. at 56 (citing Summers v. Earth Island 
Institute, 555 U.S. 488, 492 (2009)). 
A federal court may resolve only “a real controversy with real impact on real persons . . . .” 
American Legion v. American Humanist Assn., 588 U.S. 29, 87 (2019) (Gorsuch, J., concurring in 
judgment). When there is no case or controversy, “the court’s subject matter jurisdiction ceases 
to exist . . . . ” S.C. Coastal Conservation League v. U.S. Army Corps. of Eng’rs , 789 F.3d 475, 
482 (4th Cir. 2015); see Gardner v. GMAC, Inc., 796 F.3d 390, 395 (4th Cir. 2015) (same). In the 
absence of a case or controversy, “the courts have no business deciding [the case] . . . .” 
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006). 
“Continued adherence to the case-or-controversy requirement of Article III maintains the 
public’s confidence in an unelected but restrained Federal Judiciary . . . . For the federal courts to 
decide questions of law arising outside of cases and controvers ies would be inimical to the 
Constitution’s democratic character.” Arizona Christian School Tuition Organization v. Winn, 
563 U.S. 125, 133 (2011); see DaimlerChrysler Corp ., 547 U.S. at 341 (“[T]he constitutional 
limitation of federal- court jurisdiction to actual cases or controversies” is “fundamental to the 
judiciary’s proper role in our system of government[.]”). 
To establish standing under Article III of the Constitution, a plaintiff must satisfy three 
well established elements: “(i) that he suffered an injury in fact that is concrete, particularized, and 
actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury 
would likely be redressed by judicial relief.” TransUnion, 594 U.S. at 423 (citing Lujan, 504 U.S. 
at 560–561); see Food and Drug Admin. v. Alliance for Hippocratic Medicine, 602 U.S. 367, 380 
(2024); Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 
199 (2023); Cruz, 596 U.S. at 296; Susan B. Anthony List v. Driehaus, 573 U.S. 149, 168 (2014); 

20 
 
Clapper, 568 U.S. at 409; Poppleton Now Cmty. Ass'n, Inc. v. La Cite Dev., LLC , ___ F.4th ___, 
2026 WL 1204639, at *3 (4th Cir. May 4, 2026); Holmes v. Elephant Ins. Co., 156 F.4th 413, 420 
(4th Cir. 2025); Delmarva Fisheries Ass'n, Inc. v. Atl. States Marine Fisheries Comm'n, 127 F.4th 
509, 515 (4th Cir. 2025); Fernandez v. RentGrow, Inc., 116 F.4th 288, 294 (4th Cir. 2024); Laufer, 
60 F.4th at 161; Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 284 (4th Cir. 2018); Cahaly 
v. Larosa, 796 F.3d 399, 406 (4th Cir. 2015). Requiring a plaintiff to demonstrate these three 
elements “ensures that federal courts decide only ‘the rights of individuals,’ and that federal courts 
exercise ‘their proper function in a limited and separated government.’” TransUnion, 594 U.S. at 
423 (citations omitted). 
At the pleading stage, to establish standing, a plaintiff must “‘clearly allege facts 
demonstrating’” an injury in fact. Opiotennione, 130 F.4th at 153 (citation omitted). Moreover, 
“a plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the 
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000); see TransUnion, 594 
U.S. at 431 (Plaintiffs “must demonstrate standing for each claim that they press and for each form 
of relief that they seek (for example, injunctive relief and damages) ”); Garey v. James S. Farrin, 
P.C., 35 F.4th 917, 922 (4th Cir. 2022) (same); see also MSP Recovery Claims, Series LLC v. 
Lundbeck LLC, 130 F.4th 91, 103 (4th Cir. 2025); Episcopal Church in S.C. v. Church Ins. Co. of 
Vt., 997 F.3d 149, 154 (4th Cir. 2021). 
When standing is challenged on the pleadings, “a court ‘accept[s] as valid the merits of 
[the plaintiff’s] legal claims.’” Laufer, 60 F.4th at 161 (quoting Cruz, 596 U.S. at 298) (alterations 
in Laufer); see Deal, 911 F.3d at 187 (stating that the court accepts “‘as true all material allegations 
of the complaint and construe[s] the complaint in favor of the complaining party.’”) (citation 

21 
 
omitted); see also Button v. Nat’l Bd. of Exam’rs in Optometry, Inc., 892 F.3d 613, 620 (4th Cir. 
2018). However, a district court “may conduct an evidentiary hearing.” Laufer, 60 F.4th at 161. 
The strictures of Article III standing apply with no less force in the context of class actions. 
Although “[e]very class member must have Article III standing in order to recover individual 
damages,” TransUnion, 594 U.S. at 431, the Fourth Circuit has analyzed standing in the early 
stages of a class action “based on the allegations of personal injury made by the named 
plaintiffs.” Baehr v. Creig Northrop Team, P.C., 953 F.3d 244, 252 (4th Cir. 2020) (internal 
quotation marks omitted). 
The dispute here focuses on the “‘[f]irst and foremost’ of standing’s three elements”: Injury 
in fact. Spokeo, 578 U.S. at 338 (citing Steel Co., 523 U.S. at 103); see Am. Fed'n of State, Cnty. 
& Mun. Emps., AFL -CIO v. Soc. Sec. Admin., 172 F.4th 361, 368 (4th Cir. 2026) (en banc) 
(“AFSCME”). “[A]n injury in fact is ‘an invasion of a legally protected interest’ which is ‘concrete 
and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Opiotennione, 130 
F.4th at 153 (quoting Lujan, 504 U.S. at 560) (internal quotation marks omitted); see also 
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010) (requiring the plaintiff to allege 
a “concrete, particularized, and actual or imminent” injury). Therefore, under Article III, “a party 
invoking the jurisdiction of a federal court [must] seek relief for a personal, particularized injury.” 
Hollingsworth v. Perry, 570 U.S. 693, 715 (2013). 
“Concreteness and particularity are two different requirements . . . .” Opiotennione, 130 
F.4th at 153. “[A]n injury is ‘particularized’ if it ‘affect[s] the plaintiff in a personal and individual 
way.’” Id. (quoting Spokeo, 578 U.S. at 339) (second alteration in Opiotennione; internal quotation 
marks omitted); see Food and Drug Admin., 602 U.S. at 381. A concrete injury is one that is 

22 
 
“‘real, and not abstract.’” TransUnion, 594 U.S. at 424 (citation omitted); see Food and Drug 
Admin., 602 U.S. at 381; Holmes, 156 F.4th at 421. 
“‘[F]inancial harm is a classic and paradigmatic form of injury in fact.’” Md. Shall Issue, 
Inc. v. Hogan, 971 F.3d 199, 210 (4th Cir. 2020) (quoting Air Evac EMS, Inc. v. Cheatham, 910 
F.3d 751, 760 (4th Cir. 2018) ). But, “[v]arious intangible harms can also be concrete.” 
TransUnion, 594 U.S. at 425; see B aehr, 953 F.3d at 252. The Supreme Court has said, 
TransUnion, 594 U.S. at 425: “Chief among them are injuries with a close relationship to harms 
traditionally recognized as providing a basis for lawsuits in American courts. Those include, for 
example, reputational harms, disclosure of private information, and intrusion upon seclus ion.” 
(citing, inter alia, Davis v. Federal Election Comm’n, 554 U.S. 724, 733 (2008) (disclosure of 
private information); Gadelhak v. AT&T Services, Inc., 950 F.3d 458, 462 (7th Cir. 2020) (Barrett, 
J.) (intrusion upon seclusion) , cert. denied, 141 S.Ct. 2552 (2021)); see also Krakauer v. Dish 
Network, L.L.C., 925 F.3d 643, 653 (4th Cir. 2019) (“Intrusions upon personal privacy were 
recognized in tort law and redressable through private litigation.”). 
Of import, the existence of an applicable statute that authorizes legal action under certain 
circumstances does not automatically create standing. In other words, “plaintiffs cannot establish 
a cognizable injury simply by pleading a statutory violation.” Garey v. James S. Farrin, P.C., 35 
F.4th 917, 921 (4th Cir. 2022); see Raines, 521 U.S. at 820 n.3 (“It is settled that Congress cannot 
erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who 
would not otherwise have standing.”). 
Notably, “an injury in law is not an injury in fact.” TransUnion, 594 U.S. at 427; see 
AFSCME, 172 F.4th at 368. Congress “may ‘elevat[e] to the status of legally cognizable injuries 
concrete, de facto injuries that were previously inadequate in law.’” Spokeo , 578 U.S. at 341 

23 
 
(alteration in Spokeo) (citation omitted). To be sure, Congress is “well positioned to identify 
intangible harms that meet minimum Article III requirements,” so “its judgment is . . . instructive 
and important.” Id. However, as the Supreme Court said in Spokeo, 578 U.S. at 341: “Congress' 
role in identifying and elevating intangible harms does not mean that a plaintiff automatically 
satisfies the injury -in-fact requirement whenever a statute grants a person a statutory right and 
purports to authorize that person to sue to vindicate that right. Article III standing requires a 
concrete injury even in the context of a statutory violation.” Put another way, “Congress’s 
determination that a cause of action exists does not displace [the] ‘irreducible constitutional 
minimum’ of standing.” Krakauer , 925 F.3d at 652 (citation omitted); see id. at 653 (“Private 
litigation, even if authorized by statute to serve a range of public ends, must vindicate the plaintiffs’ 
interests, rather than serve solely [as] a vehicle for ensuring legal compliance.”). 
In TransUnion, 594 U.S. at 417, the Supreme Court said: “C entral to assessing 
concreteness is whether the asserted harm has a ‘close relationship’ to a harm traditionally 
recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary 
harm, or various intangible harms . . . .” (quoting Spokeo, 578 U. S. at 340–41). Although there 
need not be “an exact duplicate in American history and tradition,” a federal court is not entitled 
to “loosen Article III based on contemporary, evolving beliefs about what kinds of suits should be 
heard in federal courts.” TransUnion, 594 U.S. at 424–25. 
An injury in fact must also be actual or imminent. The concepts of actual, ongoing injury 
or imminent injury are “disjunctive.” Deal, 911 F.3d at 189. Ongoing injuries are, “by definition, 
actual injuries for purposes of Article III standing.” Id. The imminence requirement is a 
“‘somewhat elastic concept.’” Clapper, 568 U.S. at 409 (citation omitted). Its “‘purpose’” is “‘to 

24 
 
ensure that the alleged injury is not too speculative for Article III purposes —that the injury is 
certainly impending.’” Id. (citation omitted) (emphasis in Clapper). 
A threatened injury can also satisfy Article III standing. Beck, 848 F.3d at 271; see South 
Carolina v. United States , 912 F.3d 720, 726 (4th Cir. 2019). However, the Supreme Court has 
“repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in 
fact,’ and that ‘[a]llegations of possible future injury’ are not sufficient.” Clapper, 568 U.S. at 409 
(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (emphasis and second alteration in 
Clapper). Thus, “to establish Article III injury, a plaintiff must plead and prove that it has suffered 
(or will imminently suffer, absent a court's intervention) a concrete injury.” AFSCME, 172 F.4th 
at 368. 
III. Discussion 
A. 
1. 
Plaintiffs argue that this Court lacks subject matter jurisdiction because plaintiffs “have not 
alleged facts sufficient” to establish Article III standing. ECF 6 at 1. In their view, they have 
merely alleged a bare statutory violation, which does not constitute a concrete injury for the 
purpose of Article III standing . Id. at 4–5 (citing Spokeo, 578 U.S. 330; TransUnion, 594 U.S. 
413). Nonetheless, plaintiffs maintain that their claims “are valid and viable in state court[.]” Id. 
(emphasis in original). 
Plaintiffs observe: “There is no tort at common law allowing a plaintiff to recover for a 
bare misrepresentation or false statement, without reliance and resulting damages.” ECF 6 at 7. 
Because plaintiffs have not alleged that they relied on the emails’ deceptive subject lines, made 
any purchase as a result, experienced any financial harm, or suffered any concrete consequence , 

25 
 
beyond receipt of the emails, they maintain that their claims cannot proceed in federal court and 
must be remanded to state court. ECF 6 at 9–10. 
The Company advances several bases for standing. ECF 30. First, Vineyard Vines 
contends that plaintiffs' alleged receipt of voluminous, deceptive marketing emails is itself a 
cognizable injury-in-fact, because it is “ the precise type of harm that the Maryland and Indiana 
legislatures sought to prevent when they enacted MCEMA and IDCEMA —specifically, ‘the 
dissemination of false or misleading information through unsolicited, commercial e-mail.’” Id. at 
8 (quoting Beyond Sys., Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 16, 878 A.2d 567, 
576 (2005) (emphasis added by defendant)). That legislative judgment, defendant argues, 
combined with the common law torts of fraud and nuisance , which address harms similar in kind 
to those plaintiffs allegedly experienced, establishes the close relationship to a traditionally 
recognized harm that Article III requires. ECF 30 at 7–16. In particular, the Company relies on a 
series of California decisions under t he Telephone Consumer Protection Act of 1991 (“TCPA”), 
47 U.S.C. § 227, which, in its view, “reinforce the conclusion that Plaintiffs’ alleged injuries have 
a common law analogue and, therefore, suffice to confer Article III standing.” ECF 30 at 23. 
Second, defendant argues that the Complaint pleads a substantial risk of future harm . 
Specifically, defendant contends that plaintiffs or other putative class members risk making 
improvident purchases absent an injunction. Id. at 16–18. In its view, this establishes standing. 
Id. at 16. 
Third, defendant contends that, even if plaintiffs lack standing, remand should be denied 
because plaintiffs ’ claims are preempted by the Controlling the Assault of Non- Solicited 
Pornography and Marketing Act of 2003, 15 U.S.C. § 7701 et seq. (“CAN-SPAM”). ECF 30 at 
27–28. Therefore, defendant posits that remand would be futile. Id. at 27. 

26 
 
In Reply, plaintiffs insist that defendant has fundamentally misread the Complaint, 
injecting allegations that are not there and ignoring the ones that are. ECF 41 at 1–5. They 
emphasize that the Complaint contains no allegation that the emails were unwanted; no allegation 
that plaintiffs were forced to spend time reviewing or deleting them ; and no allegation that any 
named plaintiff made or faces an imminent risk of making an improvident purchase. Id. at 3–5. 
Further, plaintiffs contend that defendant's California authorities are inapposite because they arose 
under a statute that governs only unsolicited commercial email, whereas MCEMA and IDCEMA 
apply to solicited and unsolicited email alike. Id. at 15–19. And, plaintiffs aver that each named 
plaintiff consented to receive defendant 's marketing emails by opening an account and making 
purchases. Id. 
As to future harm, plaintiffs argue that none of the named plaintiffs has alleged an 
imminent, concrete risk of being deceived into making an improvident purchase, and that Carter 
and Nielsen cannot seek injunctive relief in any event because MCEMA does not provide for it. 
Id. at 20–23. Finally, plaintiffs argue that the futility exception to remand does not apply in the 
Fourth Circuit. Id. at 23–24. To the contrary, the Court must remand if jurisdiction is lacking. Id. 
As noted, the party invoking federal jurisdiction bears the burden of establishing standing. 
Lujan, 504 U.S. at 561; see Strawn, 530 F.3d at 296 (the removing party “carries the burden of 
alleging in his notice of removal and, if challenged, demonstrating the court’s jurisdiction over the 
matter”). As defendant acknowledges, this creates “the anomalous situation in which Defendant, 
the removing party, asserts Article III standing exists.” ECF 30 at 6. If Vineyard Vines cannot 
demonstrate that plaintiffs have suffered a concrete injury within the meaning of Article III, the 
case must be remanded. See 28 U.S.C. § 1447(c). 
 

27 
 
2. 
Plaintiffs maintain that they merely allege a “bare procedural violation” of the Email 
Statutes by defendant, which does not constitute a concrete injury. ECF 6 at 5 (citing Spokeo, 578 
U.S. at 342). According to plaintiffs, the conduct of VV in sending emails containing deceptive 
information in the subject lines is insufficient to establish Article III standing. Id. 
The Maryland Anti-Spam Statute, C.L. § 14-3002(b), prohibits dissemination of an email 
that contains “false or misleading information in the subject line that has the capacity, tendency, 
or effect of deceiving the recipient.” Similarly, the Indiana Email Statute, Ind. Code Ann. § 24-5-
22-7(b)(3), prohibits dissemination of an email that “contains false or misleading information in 
the subject line.” The Email Statutes under which plaintiffs assert their claims do not require 
actual damages in order for a court to impose the $500 penalty. Rather, the injury requirement is 
met upon receipt of an email that violates the Email Statutes. See C.L. § 14- 3003 (providing 
damages “in an amount equal to the greater of $500 or the recipient’s actual damages”); Ind. Code 
Ann. § 24- 5-22-10 (same). According to plaintiffs, “ solely by virtue of sending those violative 
emails, Vineyard Vines is liable to Named Plaintiffs for the statutory damages set forth in the 
Email Statutes.” ECF 6 at 9. 
Vineyard Vines relies, inter alia, on Beyond Systems, 777 F.3d 712, to dispute plaintiffs’ 
contention that a mere violation of the Email Statutes is insufficient to confer Article III standing. 
ECF 30 at 12. In Beyond Systems , 777 F.3d at 716, the Court reasoned that Article III standing 
existed because the plaintiff “claimed a harm, receiving spam e-mail, and Maryland and California 
law create an interest in being free from such harm.” 
Defendant also relies on Harbers v. Eddie Bauer, LLC, 415 F. Supp. 3d 999 (W.D. Wash. 
2019). ECF 30 at 13. T here, the court considered the Washington Commercial Electronic Mail 

28 
 
Act (“WCEMA”), an analog to the statutes at issue here. Harbers, 415 F. Supp. 3d at 1003. The 
court found that the receipt of deceptive emails was sufficient to establish Article III standing. Id. 
at 1012. 
In Harbers, the court noted that the “Ninth Circuit has held that an alleged violation of a 
statutory provision that protects a substantive right is sufficient to establish concrete injury.” Id. 
at 1005 (citing Van Patten v. Vertical Fitness Grp., LLC , 847 F.3d 1037, 1043 (9th Cir. 2017) ). 
The Harbers Court went on to conduct a n analysis of the legislative history and purpose of 
WCEMA. Harbers, 415 F. Supp. 3d at 1008–11. It concluded that violations of that statute gave 
rise to injuries resembling “ the type of harms remedied by nuisance or fraud actions,” and 
constituted the precise harm the legislature sought to prevent. Id. at 1008. On that basis, the court 
held that the plaintiff’s receipt of deceptive marketing emails with false or misleading subject lines 
was sufficient to confer Article III standing , “even absent additional allegations of harm.” Id. at 
1009. 
Further, defendant relies on Baehr , 953 F.3d 244, to demonstrate that intangible injuries 
can constitute concrete harm if the type of harm suffered is “the specific harm Congress sought to 
prevent” when it enacted the particular statute. ECF 30 at 7, 8. In Baehr, 953 F.3d at 250-51, the 
plaintiffs alleged a statutory kickback violation under the Real Estate Settlement Procedures Act 
(“RESPA”), 12 U.S.C. § 2601 et seq ., but conceded they had not been overcharged for the 
settlement services they received. The Fourth Circuit said: “Concrete injuries are not . . . limited 
to those injuries that result in tangible harm.” Id. at 252. 
The Court “recognize[d] that a plaintiff suffers a concrete injury if she shows the harm 
stemming from the ‘defendant’s statutory violation is the type of harm Congress sought to prevent 
when it enacted the statute.’” Id. at 253 (citing Curtis v. Propel Prop. Tax Funding, LLC, 915 F.3d 

29 
 
234, 240-41 (4th Cir. 2019)). Nevertheless, it concluded that the Baehr plaintiffs lacked standing. 
Baehr, 953 F.3d at 254. The Court reasoned that “the deprivation of impartial and fair competition 
between settlement services providers—untethered from any evidence that the deprivation thereof 
increased settlement costs—is not a concrete injury under RESPA ” because it was not the specific 
type of harm that Congress sought to prevent when it enacted RESPA. Id. 
Of import, Beyond Systems, Harbers, and Baehr were decided before the Supreme Court’s 
decision in TransUnion, 594 U.S. 413. I n TransUnion, a class of 8,185 individuals filed suit 
against TransUnion, a credit reporting agency, seeking damages for violations of the Fair Credit 
Reporting Act, 15 U.S.C. § 1681 et seq . Id. at 417. TransUnion compiled and sold consumer 
reports, containing personal and financial information, to banks, landlords, and car dealerships 
“that request information about the creditworthiness of individual consumers.” Id. at 419. It also 
used a software product that compared names with individuals listed on the U.S. Treasury 
Department’s Office of Foreign Assets Control (“OFAC”). Id. In particular, OFAC maintains a 
list of “‘specially designated nationals’” believed to pose a threat to America’s national security, 
such as terrorists, drug traffickers, and other serious criminals. Id. Because it is generally unlawful 
to transact business w ith any person on the OFAC list, TransUnion created the “OFAC Name 
Screen Alert to help businesses avoid transacting with individuals on OFAC’s list.” Id. 
The system generated “many false positives,” however, as many “law-abiding Americans 
happen to share a first and last name” with someone on OFAC’s list. Id. at 420. The named 
plaintiff, Ramirez, was one of them. When he sought to buy a car at a dealership, his name was 
flagged as a “potential match” on the OFAC list. Id. As a result, the car dealership refused to sell 
the vehicle to him. Id. The plaintiffs filed suit, alleging that TransUnion “failed to use reasonable 

30 
 
procedures to ensure the accuracy of their credit files, as maintained internally by TransUnion.” 
Id. at 417.4 
 As to 1,853 members of the class, such as Ramirez, “ TransUnion provided misleading 
credit reports to third-party businesses.” Id. at 417. But, the “internal credit files of the other 6,332 
class members were not provided to third-party businesses . . . .” Id. (emphasis in TransUnion). 
To determine whether the class members had standing to recover monetary damages, the 
Supreme Court assessed “whether the alleged injury to the plaintiff has a ‘close relationship’ to a 
harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” Id. at 424 
(quoting Spokeo, Inc., 578 U.S. at 341 (2016)). The Court had “no trouble” concluding that the 
1,853 class members whose credit reports were published to third parties containing OFAC alerts 
that misleadingly labeled them as potential terrorists, drug traffickers, or serious criminals 
“suffered a concrete harm that qualifies as an injury in fact.” Id. at 432. The Court reasoned that 
the publication to a third party of a credit report bearing a misleading OFAC alert shared a “‘close 
relationship’” to the harm associated with the tort of defamation. Id. However, because the credit 
reports of the remaining 6,332 class members were never disseminated to third parties, they did 
not suffer concrete harm for purposes of Article III. Id. at 433. 
The Court explained that “[p]ublication is ‘essential to liability’ in a suit for defamation.” 
Id. at 434 (citation omitted). As the Court put it, id .: “[T]here is ‘no historical or common- law 
analog where the mere existence of inaccurate information, absent dissemination, amounts to 
 
4 Two other claims were lodged by all 8,185 class members. TransUnion, 594 U.S. at 418. 
In those claims, the plaintiffs alleged “formatting defects in certain mailings sent to them by 
TransUnion.” Id. However, only the named plaintiff, Ramirez, demonstrated that the alleged 
formatting errors caused him any concrete harm. Id. Therefore, the Court determined that he was 
the only class member with Article III standing to pursue the formatting defect claims. Id. 

31 
 
concrete injury.’” (Citation omitted). Thus, “[t]he mere presence of an inaccuracy in an internal 
credit file, if it is not disclosed to a third party, causes no concrete harm.” Id. 
The class members advanced an additional contention based on “risk of future harm.” Id. 
at 435 (emphasis in TransUnion). They argued, id.: “[T]he existence of misleading OFAC alerts 
in their internal credit files exposed them to a material risk that the information would be 
di
sseminated in the future to third parties and thereby cause them harm.” The Court rejected that 
argument as well. Nevert heless, it said, id.: “ [A] person exposed to a risk of future harm may 
pursue forward-looking, injunctive relief to prevent the harm from occurring, at least so long as 
the risk of harm is sufficiently imminent and substantial.” (Emphasis added). The plaintiffs did 
not seek injunctive relief, however. And, they did not “factually establish a sufficient risk of future 
harm to support Article III standing.” Id. at 437–38. Accordingly, the Court concluded that these 
class members did not have standing. 
Of significance, in TransUnion, the Supreme Court made clear that a statutory violation is 
not coextensive with a concrete harm . Id. at 424–26. The Court said, id. at 426: “Congress’s 
creation of a statutory prohibition or obligation and a cause of action does not relieve courts of 
their responsibility to independently decide whether a plaintiff has suffered a concrete harm under 
Article III . . . . ” Moreover, the Court stated that courts “cannot treat an injury as ‘concrete’ for 
Article III purposes based only on Congress’s say-so.” Id. (citation omitted). Therefore, when a 
plaintiff suffers the precise type of harm that the legislature sought to prevent, this alone does not 
establish Article III standing. 
Plaintiffs assert that the case of Asabre v. Retail Servs. & Sys., Inc., PWG -22-148, 2022 
WL 4326536 (D. Md. Sept. 19, 2022), provides critical guidance in a post -TransUnion world. 
ECF 6 at 2. There, Judge Grimm evaluated a motion to remand in a putative class action case 

32 
 
lodged pursuant to the MCEMA. Asabre, 2022 WL 4326536, at *1. Asabre “alleged that she 
received emails from Total Wine offering discounts on wine, but the discounts included conditions 
that were not disclosed in the subject heading of the email.” Id. at *2. She sought statutory 
damages of $500 per violation and attorneys’ fees. Id. Asabre’s allegations were nearly identical 
to those of plaintiffs here. And, in Asabre, the defendant argued that “t he bar for showing a 
concrete injury is low, and that M s. Asabre’s complaint alleges intangible injury ” sufficient to 
establish Article III standing. Id. 
 The Asabre Court granted the motion to remand the case based on a lack of Article III 
standing. Id. It reasoned that plaintiff “does not assert an injury, not [sic] does she allege any facts 
to support a finding that she incurred an injury from her receipt of the challenged emails. Indeed, 
she specifically and expressly states that she alleges only a statutory violation.” Id. 
Judge Grimm also addressed Beyond Systems, explaining, id: 
Beyond Systems was decided prior to both Spokeo and TransUnion, which rejected 
the proposition that ‘a plaintiff automatically satisfies the injury-in-fact requirement 
whenever a statute grants a person a statutory right and purports to authorize that 
person to sue to vindicate that right.’ TransUnion, [594 U.S. at 414] 
(quoting Spokeo, 578 U.S. at 341). The Fourth Circuit court determined that 
Beyond Systems had claimed a harm —receiving spam e -mail, and Maryland law 
had created an interest in being free from such harm. Beyond Systems , 777 F.3d at 
716. It did not discuss the plaintiff's alleged harms from receiving spam email, 
although it referred to the plaintiff having ‘invited its own purported injury.’ Id. at 
715.
[] The Supreme Court has since emphasized that courts must ‘ independently 
decide whether a plaintiff has suffered a concrete harm under Article III ’ and 
‘cannot treat an injury as concrete for Article III purposes based only on Congress’s 
say-so.’ TransUnion, [594 U.S. at 426] (quoting Trichell v. Midland Credit Mgmt., 
Inc., 964 F.3d 990, 999, n. 2 (11th Cir. 2020) ). The Fourth Circuit has also 
subsequently emphasized this point. Garey, 35 F.4th at 921 ( ‘[P]laintiffs cannot 
establish a cognizable injury simply by pleading a statutory violation.’). 
 
Vineyard Vines contends that the Asabre Court “likely erred,” because “extensive authority 
establishes that, under Spokeo and TransUnion, a plaintiff’s alleged inundation with voluminous 
deceptive marketing emails itself constitutes a cognizable injury-in-fact—‘ even absent additional 

33 
 
allegations of harm. ’” ECF 30 at 26 (quoting Harbers, 415 F. Supp. 3d at 1009- 11).5 The 
Company argues that Asabre “does not establish a convincing basis to stray from the foregoing 
extensive and well-reasoned authority.” ECF 30 at 25. It posits, id. at 26: 
Here, by contrast, each Plaintiff alleges that they have been inundated with —and 
continue to be inundated with—voluminous deceptive emails; that they have 
needed to delete a considerable number of these; that a substantial risk exists that 
they or putative class members will make an improvident purchase as a result; and 
that the ongoing nuisance caused thereby is so severe that an injunction banning 
Defendant’s alleged practice is required. These important factual distinctions 
compel a different legal result here than in Asabre. 
 
Defendant’s attempt to distinguish Asabre rests on injuries defendant has invented, not 
injuries plaintiffs have alleged. For example, plaintiffs have not alleged that they were “inundated” 
with defendant’s emails, so as to be forced to expend time reviewing or deleting them . Nor do 
plaintiffs allege that they ever made a single “improvident purchase” because of the deceptive 
emails. Rather, plaintiffs assert that VV’s conduct violates statutory prohibitions. The lone 
reference to “deleting” in the Complaint appears to explain that because plaintiffs deleted some 
emails, they cannot presently identify all of defendant’s offending emails. See ECF 7, ¶ 78. 
Moreover, Asabre is not an outlier to be explained away, as defendant would have i t. At 
the time the parties completed briefing of the Remand Motion, i t was the only opinion decided 
after TransUnion from this district to address Article III standing in the context of an alleged 
MCEMA violation. Since then, in Mulanena v. Ulta Salon, Cosmetics & Fragrance, Inc., JRR -
25-3753, 2026 WL 1214932 (D. Md. May 4, 2026), a case materially similar to this one , Judge 
Rubin granted plaintiffs’ motion to remand. 
 
5 Vineyard Vines also contends that “ Asabre’s persuasive force is further diminished 
because the court did not perform the rigorous analysis the Supreme Court mandated in Spokeo 
and TransUnion.” ECF 30 at 27. But, the Asabre Court said: “I need not engage in further detailed 
analysis regarding whether the plaintiff has established a cognizable injury by identifying a 
historical analogue for her asserted injury.
[]” Asabre, 2022 WL 4326536, at *2. 

34 
 
In Mulanena, the plaintiffs brought a putative class action under MCEMA , premised on 
alleged false or misleading email subject lines; the defendant removed under diversity and CAFA; 
and the plaintiffs moved to remand for lack of Article III standing. Id. at *1. Ulta Salon, like 
Vineyard Vines, relied on Baehr, 953 F.3d 244; Beyond Systems, Inc., 777 F.3d 712; and Harbers, 
415 F. Supp. 999, to argue that “because the harm alleged in Plaintiffs’ ‘Complaint is the precise 
type of concrete harm that the Maryland legislature sought to prevent in enacting MCEMA, it 
amounts to a cognizable injury-in-fact.’” Mulanena, 2026 WL 1214932, at *4 (citation omitted). 
Further, defendant opposed remand by arguing that plaintiffs ’ alleged receipt of deceptive 
commercial emails bore a “close relationship” to the common-law harms of nuisance, fraud, and 
intrusion upon seclusion. Id. Judge Rubin rejected defendant’s arguments and granted the motion 
to remand, finding that “there are no alleged facts to support a finding that Plaintiffs suffered a 
concrete injury from their receipt of Defendant’s emails” and that the defendant therefore “cannot 
demonstrate that Plaintiffs have Article III standing.” Id. at *7. 
Defendant fares no better with its broad legal argument , to the effect that mere receipt of 
deceptive emails constitutes a cognizable injury because it is the particular harm that the 
legislatures in Maryland and Indiana sought to prevent. It may be true that the legislatures intended 
to prevent individuals from being subjected to the kind of emails in issue. But, that circumstance 
is not dispositive as to whether plaintiffs have suffered a cognizable injury -in-fact under Article 
III. The TransUnion Court was clear, stating: “For standing purposes . . . an important difference 
exists between (i) a plaintiff’s statutory cause of action to sue a defendant over the defendant's 
violation of federal law, and (ii) a plaintiff’s suffering concrete harm because of the defendant's 
violation of federal law.” TransUnion, 594 U.S. at 426–27. 

35 
 
The Fourth Circuit has also been clear . It has said: “The intangible harm of enduring a 
statutory violation, standing alone, typically won't suffice under Article III —unless there ’s 
separate harm (or a materially increased risk of another harm) associated with the violation. ” 
O'Leary v. TrustedID, Inc., 60 F.4th 240, 243 (4th Cir. 2023). 
3. 
Under TransUnion, 594 U.S. at 417, an intangible harm may still be concrete if it bears a 
‘close relationship’ to a harm traditionally recognized at common law. I next consider whether, 
on this basis, plaintiffs have alleged facts sufficient to satisfy the element of concrete harm. 
Defendant argues that, even if a statutory violation alone does not suffice, more is alleged 
here; the conduct in issue bears a close relationship to the common law torts of fraud and nuisance. 
ECF 30 at 4. According to defendant, “Plaintiffs’ insistence that they seek statutory damages only 
is legally irrelevant” (id. at 20), because plaintiffs’ alleged injuries “constitute the ‘types of harm 
protected at common law’” by the torts of fraud and nuisance. Id. at 22 (quoting Krakauer, 925 
F.3d at 654 (emphasis added by defendant)). 
Moreover, Vineyard Vines contends that the TCPA, 47 U.S.C. § 227, “closely resembles” 
the Email Statutes “because the TCPA prohibits junk faxes and unsolicited advertising calls.” ECF 
30 at 23 (citations and internal quotations omitted; cleaned up). In its view, cases under the TCPA 
“reinforce the conclusion that Plaintiffs’ alleged injuries have a common law analogue and, 
therefore, suffice to confer Article III standing.” Id. Although defendant frames its analog 
argument in terms of fraud and nuisance, some of the cases on which defendant relies involve the 
torts of intrusion upon seclusion and invasion of privacy. 
 
 

36 
 
a. 
To establish standing, defendant relies on a host of California cases, many of which were 
decided after TransUnion, in which courts found Article III standing in the context of alleged 
violations of California’s anti-spam statute, Cal. Bus. & Prof. Code § 17529.5. See ECF 30 at 23-
25. Each of these decisions , as well as Fourth Circuit jurisprudence , to which I turn first, bases 
Article III standing on an analogy between unsolicited commercial email s and the common-law 
torts of intrusion upon seclusion, invasion of privacy, and nuisance, drawing on precedent under 
the TCPA, 47 U.S.C. § 227.6 
Congress enacted the TCPA in 1991 to address what it identified as the growing problem 
of unsolicited telemarketing. The statute restricts certain categories of unwanted telephonic 
communications, including automated calls and prerecorded messages to residential and cellular 
lines, calls to numbers listed on the national Do- Not-Call registry, and unsolicited fax 
advertisements. See 47 U.S.C. § 227(b), (c). It also creates a private right of action, permitting 
recipients to recover statutory damages of $500 per violation, trebled for willful or knowing 
conduct. Id. § 227(b)(3), (c)(5). Because the TCPA targets communications the recipient did not 
invite, courts, including the Fourth Circuit , have repeatedly concluded that statutory violations 
bear a close relationship to the common-law privacy torts of intrusion upon seclusion and invasion 
of privacy, and therefore satisfy Article III ’s concreteness requirement. See, e.g., Krakauer, 925 
F.3d at 653; Van Patten, 847 F.3d at 1043; Gadelhak, 950 F.3d at 462. 
 
6 In AFSCME, 172 F.4th at 369, the Court defined the tort of intrusion on seclusion as “an 
‘intentional[] intru[sion], physical[] or otherwise, upon the solitude or seclusion of another or his 
private affairs or concerns’ that ‘would be highly offensive to a reasonable person.’” (quoting 
RESTATEMENT (SECOND) OF TORTS § 652B (A.L.I. 1977)) (alterations in AFSCME). 

37 
 
The Company invokes Krakauer, 925 F.3d 643, for the proposition that plaintiffs’ alleged 
injuries “constitute the ‘ types of harms protected at common law.’” ECF 30 at 22 (quoting 
Krakauer, 925 F.3d at 654). In Krakauer, 925 F.3d at 648, the plaintiffs filed a class action lawsuit, 
alleging that the defendant’s sales representatives “routinely flouted” the TCPA. The Court noted 
that, pursuant to the TCPA, to “ bring suit, the plaintiffs here must have received unwanted calls 
on multiple occasions.” Id. at 653 (emphasis in Krakauer). Moreover, “[t]he statute requires that 
an individual receive a call on his own residential number, a call that he previously took steps to 
avoid.” Id. The Fourth Circuit concluded that the private right of action under the TCPA “plainly 
satisfies the demands of Article III.” Id. at 653. It said, id.: “Our legal traditions . . . have long 
protected privacy interests in the home.” Citing the Second Restatement of Torts, the Court also 
said: “Intrusions upon personal privacy were recognized in tort law and redressable through private 
litigation.” Id. 
The Fourth Circuit has applied the same privacy- analog framework outside the TCPA 
context, in cases addressing statutes that protect against non- consensual disclosure or acquisition 
of personal information. See Garey, 35 F.4th at 921–22; O'Leary, 60 F.4th at 245–46. T hose 
decisions establish that the analog turns on whether the alleged invasion was non- consensual. If 
it was non-consensual, standing follows . But, if it was consensual , the asserted injury is too 
abstract to satisfy Article III. 
In O’Leary, 60 F.4th 240, the Fourth Circuit considered whether the plaintiff, Brady 
O’Leary, had standing to bring suit under South Carolina’s Financial Identity Fraud and Identity 
Theft Protection Act, S.C. Code Ann. § 37-20-180 (“SC Act”). Id. at 241. The SC Act prohibited 
“‘requir[ing] a consumer to use his social security number or a portion of it containing six digits 
or more to access an Internet web site, unless a password or unique personal identification number 

38 
 
or other authentication device is also required to access the Internet web site.’” Id. (citation 
omitted; alteration in O’Leary). 
Equifax, a nonparty to the case, was subject to a data breach. Id. Equifax engaged its 
subsidiary, defendant TrustedID, Inc., “to use TrustedID’s website to inform customers whether 
they were impacted by the data breach.” Id. The plaintiff visited TrustedID’s website to learn 
whether his data had been compromised. Id. The website required O’Leary to enter his six-digit 
SSN, but it did not use “any other safety precautions.” Id. After entering his SSN, O’Leary was 
informed that he was not impacted by Equifax’s data breach. Id. But, he alleged that TrustedID 
“shared the six digits of his SSN with Equifax.” Id. 
O’Leary sued TrustedID, “alleging that TrustedID’s practice of requiring six digits of 
consumers’ SSNs violated the [SC] Act and South Carolina’s common-law right to privacy.” Id. 
at 241. He later added a claim of negligence. Id. The plaintiff “said he was injured when 
TrustedID ‘intentionally [took] personal identifying information and monetiz[ed] it in some way.’” 
Id. at 242 (citation omitted; alterations in O’Leary). TrustedID moved to dismiss, pursuant to Fed. 
R. Civ. P. 12(b)(6). Id. TrustedID referred to the alleged injury as “‘an invasion of privacy or 
intrusion upon seclusion.’” Id. (citation omitted). 
The district court determined that O’Leary had alleged “‘an intangible concrete harm in 
the manner of an invasion of privacy,’ which the court said was ‘enough to give [it] subject-matter 
jurisdiction at this early stage of the case.’” Id. (citations omitted; alteration and emphasis in 
O’Leary). Accordingly, the district court determined that the plaintiff had standing. Nevertheless, 
the court dismissed the plaintiff’s claims pursuant to Rule 12(b)(6), and the plaintiff appealed. Id. 
 The Fourth Circuit concluded that the plaintiff “alleged only a bare statutory violation and 
no Article III injury.” Id. The Court explained, id. at 243: “The intangible harm of enduring a 

39 
 
statutory violation, standing alone, typically won’t suffice under Article III —unless there’s 
separate harm (or a materially increased risk of another harm) associated with the violation.” 
Extrapolating from cases involving the Fair and Accurate Credit Transactions Act (“FACTA”), 15 
U.S.C. § 1681 et seq., as well as data breach cases, the Fourth Circuit said, id. at 244: “Article III 
excludes plaintiffs who rely on an abstract statutory privacy injury unless it came with a 
nonspeculative increased risk of identity theft.” But, O’Leary had not alleged, “even in a 
speculative or conclusory fashion,” that “entering six digits of his SSN on TrustedID’s website has 
somehow raised his risk of identity theft.” Id. Rather, “O’Leary relie[d] entirely on a mere 
procedural violation of a statute, which Article III rejects.” Id. at 245. 
According to the Court, O’Leary had not alleged “an injury with a ‘close relationship’ to a 
traditional or common-law analog”, because “he appears to rely on some abstract privacy interest 
in his SSN itself.” Id. (citation omitted). The Court considered two traditional analogs for 
intangible harms that confer standing: intrusion upon seclusion and disclosure of private 
information. Id. at 245–46. 
The Court defined intrusion upon seclusion as a cause of action “‘against defendants who 
invade[ ] the private solitude of another.’” Id. at 245 n.2 (quoting Gadelhak, 950 F.3d at 462). It 
acknowledged that in TransUnion the Supreme Court “mention[ed] intrusion upon seclusion as a 
traditionally recognized harm that provides a basis for lawsuits in federal court.” O’Leary, 60 
F.4th at 245 (citing TransUnion, 594 U.S. at 425). It also noted that TransUnion cited “as an 
example [] then-Judge Barrett’s holding in Gadelhak that receiving unwanted text messages 
(which violated the Telephone Consumer Protection Act of 1991) could be a concrete injury in 
fact, as it closely relates to intrusion upon seclusion.” Id. at 245 (citing Gadelhak , 950 F.3d at 
462). And, the Fourth Circuit acknowledged that it, too, had recognized that “violations involving 

40 
 
unwanted calls” under the TCPA “are concrete injuries in fact, based on federal courts’ traditional 
protection of ‘privacy interests in the home.’” O’Leary, 60 F.4th at 245 (quoting Krakauer, 925 
F.3d at 653). 
Yet, the Court determined that O’Leary’s alleged injury did not bear a close relationship to 
intrusion upon seclusion. O’Leary, 60 F.4th at 245. O’Leary involved what the Fourth Circuit 
characterized as an “abstract privacy interest in [a partial] SSN . . . .” Id. The O’Leary Court 
concluded, id. at 246: “O’Leary hasn’t adequately pled that he was injured by the alleged statutory 
violation at all—much less in a way that closely relates to a traditional analog for a federal lawsuit.” 
Garey, 35 F.4th 917 is also instructive. There , the Fourth Circuit considered whether 
plaintiffs had standing to sue for an alleged violation of the Driver’ s Privacy Protection Act 
(“DPPA”), 18 U.S.C. § 2721 et seq . The DPPA provides a private cause of action against “‘[a] 
person who knowingly obtains, discloses or uses personal information, from a motor vehicle 
record,’ for an impermissible purpose.” Id. at 920 (citing 18 U.S.C. § 2724(a)). The defendants, 
personal injury lawyers, obtained motor vehicle accident reports from North Carolina law 
enforcement agencies or “private data brokers ,” id. at 919, which contained names and home 
addresses of the drivers. Id. at 919–20. The defendants used the personal information in the reports 
“to mail unsolicited attorney advertising materials to the drivers involved in those crashes.” Id. at 
920; see also id. at 919. 
The Garey Court determined that plaintiffs’ allegation that their “privacy [was] invaded by 
Defendants’ knowingly obtaining his or her name and address from a motor vehicle record for an 
impermissible purpose in violation of law” constituted a “legally cognizable privacy injury.” Id. 
at 922. It reasoned that the alleged harm was “closely related to the invasion of privacy, which 

41 
 
has long provided a basis for recovery at common law.” Id. at 921. Therefore, the Fourth Circuit 
concluded that the plaintiffs satisfied Article III. Id. at 922. 
In AFSCME, 172 F.4th 361, the e n banc majority concluded that the disclosure by the 
Social Security Administration of the personally identifiable information of plaintiffs’ members to 
the Department of Government Efficiency (“DOGE”) inflicted a harm that is a close analog to the 
common law tort of intrusion upon seclusion. Id. at 368 (citing, inter alia, TransUnion, 594 U.S. 
at 424–25). The Court explained: “The tort is not limited to entering someone’s house or peering 
through their windows. Rather, it includes other form[s] of investigation or examination of private 
concerns, including opening someone's mail, going through their wallet, examining their bank 
account, or compelling [them] by a forged court order to permit an inspection of [their] personal 
documents.” Id. at 369 (internal quotation marks and citation omitted). It continued, id.: “Much 
like rifling through someone's wallet, bank account, or personal documents, granting unauthorized 
and unwarranted access to a person's sensitive personal information is an intentional intrusion into 
‘private affairs or concerns. ’” And, it said, id.: “[T]he unjustified intrusion upon the plaintiff’s 
privacy is the harm.” (Emphasis in AFSCME). 
Here, plaintiffs do not allege that the emails were entirely unsolicited. To the contrary, 
plaintiffs voluntarily created accounts with Vineyard Vines and provided defendant with their 
email addresses. Therefore, the privacy and intrusion-based rationales in the cases discussed above 
would not extend to the facts here. 
Defendant relies principally on a line of district court decisions from California, applying 
that state’s anti-spam statute, Cal. Bus. & Prof. Code § 17529.5. These decisions have found 
Article III standing on the strength of the privacy and intrusion analog discussed earlier. See ECF 
30 at 23–25. 

42 
 
California’s § 17529.5 is codified in Article 1.8 of the Business and Professions Code, 
titled “Restrictions on Unsolicited Commercial E-Mail Advertisers.” Section 17529.1 defines an 
“Unsolicited commercial e-mail advertisement” as one where: (1) “The recipient has not provided 
direct consent to receive advertisements from the advertiser” and (2) “The recipient does not have 
a preexisting or current business relationship . . . with the advertiser promoting the lease, sale, 
rental, gift offer, or other disposition of any property, goods, services, or extension of credit.” 
The California statute applies only to unwanted communications. The California decisions 
cited by VV grounded Article III standing on an analogy to common- law privacy torts because § 
17529.5 codifies a right to be free from unsolicited communications. See, e.g., Lynch, 2021 WL 
4453470, at *3 (analogizing § 17529.5 to the TCPA and reasoning that both statutes protect against 
“the unwanted intrusion and nuisance of unsolicited” communications). 
In Lynch, 2021 WL 4453470, the court found standing based on a determin ation that Cal. 
Bus. & Prof. Code § 17529.5 “closely resembles the Telephone Consumer Protection Act 
(‘TCPA’), which prohibits junk faxes and unsolicited advertising calls.” Id. at *3. The Lynch 
Court explained, id.: 
The Ninth Circuit has expressly held that ‘a violation of the TCPA is a concrete, de 
facto injury,’ citing the fact that ‘ invasions of privacy, intrusion upon seclusion, 
and nuisance’ are harms American courts have long recognized. [] Van Patten, 847 
F.3d at 1043. In passing the TCPA, ‘ Congress sought to protect consumers from 
the unwanted intrusion and nuisance of unsolicited telemarketing phone calls and 
fax advertisements.’ Id. So too, here, with the Legislature's passage of § 17529.5. 
 
As with the federal cases discussed earlier, the California cases referenced by VV share an 
important factual distinction: The emails at issue in those cases were entirely unsolicited by the 
recipients. See, e.g., Chin v. Evergreen Freedom Foundation, 764 F. Supp. 3d 924, 934 (C.D. Cal. 
2025) (alleging the receipt of unsolicited commercial emails, and finding that “ Plaintiffs’ 
allegations of Section 17529.5 statutory violations are injuries in fact sufficient to confer Article 

43 
 
III standing”); Whittaker v. Tactical USA , LLC, JAM-23-2914, 2024 WL 1855645, at *1 (E.D. 
Cal. Apr. 29, 2024) (alleging that plaintiffs received 500 “unsolicited commercial email 
advertisements . . . which they never directly consented to receive ”); Diaz v. One Techs., LLC , 
GHW-21-8571, 2022 WL 72283, at *5 (C.D. Cal. Jan. 6, 2022) (alleging that defendant “sen[t] 
millions of unwanted and unlawful commercial email messages to recipients that did not give 
consent to receive them); Lynch v. AML Network, Ltd., GHW-21-3574, 2021 WL 4453470, at *1 
(C.D. Cal. Sept. 27, 2021) (“Defendant allegedly used these affiliates to send at least 1,017 
unlawful Unsolicited Commercial Emails ( ‘spams’) to Plaintiffs . . . .”) ; Durward v. One 
Technologies LLC, GHW-19-6371, 2019 WL 4930229, at *8 (C.D. Cal. Oct. 3, 2019) (“Because 
Plaintiff has alleged that Defendants sent her unwanted and deceptive spam emails, in violation of 
Cal. Bus. & Prof. Code. § 17529.5(a), she has alleged sufficie nt injury to confer standing.”); 
Silverstein v. Keynetics, Inc. , JAK-18-4100, 2018 WL 5795776, at *1 (C.D. Cal. Nov. 5, 2018) 
(“Plaintiff alleges that 73 unsolicited, commercial e -mail messages (‘spam’) were transmitted to 
him . . . .”). 
That premise is absent here. Plaintiffs do not allege that the emails from VV were 
unsolicited. Indeed, each named plaintiff chose to open a Vineyard Vines account, provided the 
Company with an email address, and made purchases through that account. ECF 7, ¶¶ 60, 67, 74. 
But, under the Email Statutes at issue here, plaintiffs allege in the Complaint that “it is irrelevant 
whether misleading commercial e-mails were solicited.” Id. ¶ 17. 
In contrast to Cal. Bus. & Prof. Code § 17529.5, the MCEMA and IDCEMA apply to both 
solicited and unsolicited emails. C.L. § 14-3002(b) prohibits false or misleading subject lines in 
any “commercial electronic mail message ” sent to a Maryland resident, without limiting 
application to unsolicited messages . Similarly, Ind. Code Ann. § 24- 5-22-7 applies to any 

44 
 
commercial email sent to an Indiana resident. See Ind. Code Ann. § 24-5-22-8 (separate provision 
addressing only “ unsolicited commercial electronic mail ”). Th us, the privacy rationale that 
anchors the California decisions cited by the Company does not encompass plaintiffs’ allegations; 
those decisions do not provide support for a common law analog. 
Defendant also references two cases from the State of Washington to support its position: 
Harbers, 415 F. Supp. 3d, 999, and Brinton v. Vivint Inc. , TMC-23-6105, 2024 WL 3688589 
(W.D. Wash. Aug. 7, 2024). See ECF 30 at 14, 15, 19. As discussed, Harbers was decided after 
Spokeo but before TransUnion. There, the court found that the WCEMA was established to protect 
“a concrete interest . . . akin to a historical, common law interest” that “resemble[s] the type of 
harms remedied by nuisance or fraud actions .” Harbers, 415 F. Supp. at 1008. The court 
concluded that the WCEMA’s “false or misleading subject line provisions were designed to protect 
Ms. Harbers and other Washington residents from the nuisance of unwanted commercial e-mails”, 
and therefore, “the underlying purpose of [the WCEMA] is sufficient to establish Article III 
standing, without alleging any additional harm.” Id. at 1010. 
In support of its finding of concrete harm, the Harbers Court said: “‘The TCPA establishes 
the substantive right to be free from certain types of phone calls and texts absent consumer consent. 
Congress identified unsolicited contact as a concrete harm, and gave consumers a means to redress 
this harm.’” Id. at 1008 (quoting Van Patten, 847 F.3d at 1043). Further, the court noted: “ The 
legislative history of [the WCEMA] indicates that the statute was designed to address unwanted 
commercial e-mails by restricting the types of deceptive spam most likely to not be screened out 
by filtering systems.” Id. at 1010. 
Similarly, in Brinton, 2024 WL 3688589, at *3, the court found Article III standing where 
a plaintiff alleged violations of the WCEMA. The court noted: “In the context of unsolicited 

45 
 
telemarketing calls, the Ninth Circuit has recognized ‘ a common -law analog to privacy 
violations.’” Id. (quoting Wakefield v. ViSalus, Inc., 51 F.4th 1109, 1117–18 (9th Cir. 2022) ). 
Further, the Brinton Court stated, 2024 WL 3688589, at *3 (citations omitted): 
The detailed analysis of concrete injury under CEMA by this district 
in Harbers remains persuasive after TransUnion. The Washington, California, and 
Florida statutes at issue all recognize that the recipient of unsolicited emails suffers 
an injury, whether in the form of ‘ lost productivity and resources, annoyance, 
consumption of valuable digital storage space and financial costs,’ in addition to 
the foundational injuries to privacy and freedom from nuisance. 
 
Again, plaintiffs complain about misleading emails from defendant. But, they do not allege 
that the emails themselves were unsolicited. As indicated, plaintiffs created online accounts with 
the defendant and provided their email addresses to VV. Moreover, they assert in the Complaint 
that, under the Email Statutes, “it is irrelevant whether misleading commercial e -mails were 
solicited.” ECF 7, ¶ 17. In other words, plaintiffs do not allege any invasion of personal privacy. 
To the contrary, they established Vineyard Vines accounts, provided their contact, billing, and 
shipping information, and made purchases through the company's website or stores. ECF 7, ¶¶ 
58–60, 65–67, 72–74, 102, 121. Nowhere do they allege that all emails were unwanted or that 
they ever sought to stop receiving them. 
Thus, the TCPA is not an analog here. A person who receives emails that he or she never 
agreed to receive has arguably had his/her digital privacy invaded in a way that perhaps resembles 
the common law torts of intrusion upon seclusion and private nuisance. See Van Patten, 847 F.3d 
at 1042–43 (“Unsolicited telemarketing phone calls or text messages, by their nature, invade the 
privacy and disturb the solitude of their recipients”) . But, critically, those communications were 
entirely unsolicited. In the c ases cited by Vineyard Vines , the courts did not hold that standing 
exists even if emails were generally solicited. The unsolicited character of the communications 

46 
 
was central to the analysis. Three recent district court cases cited by plaintiffs buttress this 
conclusion. See ECF 51; ECF 59; ECF 61. 
As discussed, Mulanena, 2026 WL 1214932, provides helpful guidance. There, Judge 
Rubin found that Harbers was distinguishable, and intrusion- upon-seclusion analogies inapt, 
because the plaintiffs did “not allege that Defendant’s emails are unsolicited or unwanted ,” nor 
that “they were actually deceived by Defendant’s emails.” Id. at *6–7. And, said the Court, “the 
mere receipt of misleading or false subject lines in emails does not, by itself, constitute an injury.” 
Id. at *6. Therefore, the court said: “ Plaintiffs do not allege, or seek recovery for, invasion of 
privacy or any similar injury to constitute a concrete harm.” Id. at *7 (internal quotation marks 
and citation omitted). Judge Rubin concluded: “As there are no alleged facts to support a finding 
that Plaintiffs suffered a concrete injury from their receipt of Defendant's emails, Defendant cannot 
demonstrate that Plaintiffs have Article III standing.” Id. at *7 (citing Asabre, 2022 WL 4326536, 
at *2). 
In reaching this decision, Judge Rubin relied on two recent decisions from federal courts 
in the State of Washington: Montes v. Catalyst Brands LLC , TOR-25-281, 2025 WL 3485827 
(E.D. Wash. Dec. 4, 2025) , and Nuri v. True Religion Apparel , LK-25-6980, 2026 WL 864886 
(W.D. Wash. Mar. 30, 2026). 
In Montes, 2025 WL 3485827, at *3, the court “decline[d] to follow” Harbers and Van 
Patten because the emails were not alleged to be unsolicited, and therefore analogizing a violation 
of the WCEMA to a violation of the TCPA was “not a fair comparison.” Id. The court said, id. 
(emphasis added): 
This is not a violation of privacy because Plaintiff welcomed Defendants’ 
marketing emails and even wishes to continue to receive Defendants’ emails. 
Plaintiff does not allege that these emails were unsolicited or unwanted. They are 
not unsolicited messages. This is not the same right in Van Patten. Van Patten, 847 

47 
 
F.3d at 1043. It is not the same right that Plaintiff suggests is a substantive right 
and meets the requirement for concrete injury. This is receipt of alleged 
misleading or false marketing email subject lines from a solicited company. 
There is not an invasion of privacy or any similar injury to constitute a 
concrete harm. Regardless, the Supreme Court already made it clear that if there 
is no personal harm to Plaintiff, it does not meet the requirements for Article III 
standing. TransUnion[], 594 U.S. [at] 427-28. Therefore, there is not a concrete 
harm to confer standing. 
 
Similarly, in Nuri , 2026 WL 864886, at *3, the court said: “ Contrary to True Religion’s 
arguments, Nuri’s allegations do not closely resemble nuisance or otherwise establish Article III 
standing.
[] There is no allegation that any of the relevant emails were unsolicited; to the contrary, 
Nuri provided her email address to True Religion and ‘ would like to continue receiving truthful 
information from True Religion regarding its products.’” Therefore, the court remanded the case 
to state court. Id. at *4. 
b. 
Defendant asserts that plaintiffs’ “claimed harm involves the same basic type of injury that 
common law fraud and nuisance actions are designed to prevent.” ECF 30 at 22. Defendant 
reiterates that “each Plaintiff alleges that she has received—and continues to receive —voluminous 
deceptive and unwanted emails; that she has had to delete a considerable number of those emails; 
that an injunction is necessary to end this practice and the associated harm and nuisance; and that, 
absent an injunction, a real risk exists that Plaintiffs or putative class members will be duped into 
making an improvident purchase.” Id. 
In my view, defendant’s interpretation of the Complaint is unmoored from its plain text. 
Vineyard Vines repeatedly describes the emails at issue as “unwanted.” See ECF 30 at 9, 10, 14, 
19, 22, 24. But, in general, plaintiffs do not complain that the emails they received from defendant 
were unwanted. In essence, p laintiffs allege that they consented to receive emails, in that each 
named plaintiff chose to establish an online account with Vineyard Vines; provided their respective 

48 
 
email addresses to Vineyard Vines; and receipt of emails from VV are part of the process. ECF 7, 
¶¶ 60, 67, 74; see also id. ¶¶ 50, 51, 109, 129. Examining the Complaint as a whole, plaintiffs 
complain that the emails violated Maryland law and Indiana law, but plaintiffs do not allege that 
they suffered an actual injury, much less one that bears a close relationship to fraud or nuisance. 
Apart from defendant’s comparisons to cases involving unsolicited emails, discussed above, 
defendant does not provide additional guidance as to how plaintiffs specifically have alleged the 
harm-defining elements of these torts. 
To be sure, as to a proper analog, there need not be “an exact duplicate in American history 
and tradition.” TransUnion, 594 U.S. at 424–25; see also Salazar v. Paramount Glob., 133 F.4th 
642, 647 (6th Cir. 2025) (“We are analyzing whether the asserted harm is sufficiently analogous 
to a traditional harm recognized by law —not whether the plaintiff has pleaded an element -by-
element match to a historical tort.”); Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533, 542 n.6 (2d 
Cir. 2024) ( a plaintiff need not “ plead every element of a common -law analog to satisfy the 
concreteness requirement.”) (emphasis in Salazar ); Drazen v. Pinto, 74 F.4th 1336, 1343 (11th 
Cir. 2023) (en banc) (explaining that a common law analog does “not require carbon copies”). 
Moreover, the proper focus is on the kind of harms protected at common law, not the degree 
of the harm. See Krakauer, 925 F.3d at 654 (“Our inquiry is focused on types of harms protected 
at common law, not the precise point at which those harms become actionable.”); Gadelhak, 950 
F.3d at 462 (“But when Spokeo instructs us to analogize to harms recognized by the common law, 
we are meant to look for a ‘close relationship’ in kind, not degree.”); see also Ward v. NPAS, Inc., 
63 F.4th 576, 580–81 (6th Cir. 2023) (focusing on the “kind” of harm protected by common law 
intrusion upon seclusion); Perez v. McCreary, Veselka, Bragg & Allen, P.C., 45 F.4th 816, 822 

49 
 
(5th Cir. 2022) (courts should “focus[ ] on types of harms protected at common law, not the precise 
point at which those harms become actionable”) (citation omitted). 
However, t he asserted harm must resemble not just the general category of wrong 
addressed by the “harm protected by a common-law cause of action.” Holmes, 156 F.4th at 424. 
In Holmes, the Fourth Circuit said, id. at 426 (emphasis in Holmes): 
Recall that TransUnion only seeks a ‘ close relationship ’ between harms, not 
elements. 594 U.S. at 425. So the only elements that matter are the ones that define 
the harm of the analogous cause of action. A defendant's disclosure, though 
also an element of the public disclosure of private information tort, is not a harm-
defining element—it goes to the defendant's liability, not to what is felt by the 
plaintiff. 
 
Detrimental reliance is the harm-defining element of fraud. A plaintiff is injured not when 
the false statement is made, but when the plaintiff acts on it, to his or her detriment. See, e.g., 
Pruitt v. Resurgent Cap. Servs., LP , 610 F. Supp. 3d 775, 781 (D. Md. 2022) (stating that 
“detrimental reliance is so central a feature of fraud and negligent misrepresentation that [the 
plaintiff] must at least show that she relied on the [misrepresentation] to her detriment in some 
way”). 
The harm-defining element of nuisance is substantial and unreasonable interference with 
the use and enjoyment of propert y. See Poppleton Now Cmty. Ass'n, Inc., 2026 WL 1204639, at 
*3 (“Maryland law defines a private nuisance as ‘a nontrespassory invasion of another's interest in 
the private use and enjoyment of land’ that is “substantial and unreasonable.’”) (first 
quoting Rosenblatt v. Exxon Co., 335 Md. 58, 80, 642 A.2d 180, 190 (1994), and then 
quoting Gorman v. Sabo, 210 Md. 155, 159, 122 A.2d 475, 477 (1956)); Grande Vista, LLC v. 
United States, 680 F. Supp. 3d 550, 566 (D. Md. 2023) (“A nuisance claim requires that a plaintiff 
‘establish an unreasonable and substantial interference with his or her use and enjoyment of his or 
her property, such that the injury is of such a character as to diminish materially the value of the 

50 
 
property as a dwelling . . . and seriously interfere with the ordinary comfort and enjoyment of it.’”) 
(quoting Exxon Mobil Corp. v. Albright , 433 Md. 303, 409, 71 A.3d 30, 94 (2013)) . Washington 
Suburban Sanitary Commission v. Cae-Link Corp., 330 Md. 115, 126, 622 A.2d 745, 750 (1993) 
(“To prove the existence of a nuisance . . . the complained of interference must cause actual 
physical discomfort and annoyance to those of ordinary sensibilities, tastes and habits . . . ; it 
must interfere seriously with the ordinary comfort and enjoyment of the property.”). 
In my view, plaintiffs have not a sserted the harm-defining elements for either tort. With 
respect to fraud, they do not allege that they relied on the misleading subject lines, made any 
improvident purchases in response to the emails, or suffered any economic consequences from 
having received them. And, for nuisance, they have not alleged any substantial interference with 
enjoyment of their property. They allege only the receipt of emails they voluntarily agreed to 
receive when they opened accounts, provided their email addresses, and made purchases from 
Vineyard Vines. 
For nuisance, defendant’s arguments are unpersuasive with respect to cases in which courts 
found that receipt of deceptive emails conferred Article III standing, because those cases uniformly 
involved unsolicited communications that the plaintiffs never consented to receive and thus 
resembled the type of harm present in common law privacy torts. Accordingly, defendant cannot 
invoke the nuisance and privacy rationales from those cases. Defendant does not engage otherwise 
with how plaintiffs' allegations satisf y the harm -defining elements of fraud or nuisance under 
Maryland law. See ECF 30. 
In sum, plaintiffs allege that they experienced a legal wrong, but not the kind of harm that 
fraud or nuisance is designed to remedy. N or do they demonstrate the requisite “close 
relationship” between plaintiffs’ injury and the common law torts of fraud and nuisance . 

51 
 
TransUnion, 594 U.S. at 414. “The relationship between harms cannot be so loose as to serve as 
an open-ended invitation for federal courts to create new bases for standing divorced from history 
and tradition.” Holmes, 156 F.4th at 424 (cleaned up). 
4. 
Try as defendant might, standing may not be created through the “embellishing [of] 
otherwise deficient allegations.” S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at 
Broadlands, LLC, 713 F.3d 175, 179 (4th Cir. 2013) (quoting Whitmore, 495 U.S. at 155–56). 
Here, plaintiffs’ allegations are insufficient to confer Article III standing. As in Crouse v. First 
Nat’l Bank of Pennsylvania, SAG-24-1216, 2024 WL 4007931, at *2 (D. Md. Aug. 30, 2024), 
defendant “faces a challenging hurdle ,” because plaintiffs appear to have “ crafted [their] 
Complaint to circumvent federal jurisdiction. Nowhere in the Complaint is any assertion that 
Plaintiff[s] or any person [they] seek[] to represent suffered any concrete injury.” 
As noted, to my knowledge Asabre and Mulanena are the only post-TransUnion decisions 
from this District to evaluate Article III standing in the context of alleged MCEMA violations. In 
Asabre, Judge Grimm found that the plaintiff did not assert an injury, nor did she allege “any facts 
to support a finding that she incurred an injury from her receipt of the challenged emails.” Asabre, 
2022 WL 4326536, at *2. Likewise, in Mulanena, Judge Rubin reasoned that because “there are 
no alleged facts to support a finding that Plaintiffs suffered a concrete injury from their receipt of 
Defendant's emails, Defendant cannot demonstrate that Plaintiffs have Article III s tanding.” 
Mulanena, 2026 WL 1214932, at *7. The same is true here. And, like the court in Montes, 2025 
WL 3485827, at *3, this “ Court fails to see how receiving an email with a misleading or false 
subject line harmed Plaintiff in a concrete manner that would rise to the level required for 

52 
 
standing.” To the contrary, t his is precisely the type of “bare procedural violation” that, under 
TransUnion and Spokeo, does not confer Article III standing. 
Nor have plaintiffs pled allegations sufficient to show that they “suffered a harm with a 
close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American 
courts.” TransUnion, 594 U.S. at 424. Specifically, the Complaint contains no allegation of 
reliance, no allegation of a purchase influenced by the misleading subject lines, and no allegation 
of any other tangible or intangible harm beyond the fact of receiving emails with allegedly 
deceptive subject lines. 
For the foregoing reasons, I conclude that mere receipt of emails with misleading or false 
subject lines does not, by itself, constitute a concrete injury sufficient to confer Article III standing. 
B. 
Defendant also contends that plaintiffs’ allegations give rise to a substantial and imminent 
risk of future injury sufficient to confer Article III standing. ECF 30 at 16. Specifically, defendant 
contends that because Vineyard Vines continues to send marketing emails designed to “create[] a 
false sense of urgency” and stimulate consumers’ “desire to get the deal before its gone” (ECF 7, 
¶¶ 2, 24–25), there is a meaningful risk that plaintiffs or putative class members will be deceived 
into making improvident purchases unless an injunction is put in place. ECF 30 at 16–18. Further, 
defendant argues that plaintiffs’ own demand for injunctive relief confirms they believe this risk 
is substantial and ongoing. Id. at 18 (citing Ehrlich v. Perez , 394 Md. 691, 733–34, 908 A.2d 
1220, 1245 (2006) ( “[I]njunctive relief is a preventive and protective remedy, aimed at future 
acts”)). 

53 
 
To be sure, as defendant notes, plaintiffs seek an injunction “ enjoining Vineyard Vines 
from sending the unlawful emails in the future.” ECF 7 at 37. But, in my view, defendant’s future 
harm argument fails with regard to standing. 
As a threshold matter, the MCEMA does not create a private right to injunctive relief; its 
remedial provision limits relief to statutory damages and attorneys ’ fees. See C.L. § 14 -3003 
(providing that “a recipient of a commercial electronic mail message that violates this subtitle may 
bring an action” to recover damages and fees, but not injunctive relief). In contrast, the IDCEMA 
provides for equitable relief. See Ind. Code Ann. § 24-5-22-10; ECF 7 at 37 (requesting injunctive 
relief “pursuant to Ind. Code Ann. § 24- 5-22-10” only). Consequently, any future -harm theory 
based on the threat of continued receipt of deceptive emails or improvident purchases must rest 
exclusively on the allegations of Ayers, and not on those of Carter and Nielsen. See Town of 
Chester, N.Y. v. Laroe Estates, Inc., 581 U.S. 433, 439 (2017) ( “[S]tanding is not dispensed in 
gross.”). And, the Court “analyze[s] standing in the early stages of a class action ‘based on the 
allegations of personal injury made by the named plaintiffs.’” Fernandez , 116 F.4th at 295 
(quoting Baehr, 953 F.3d at 252). 
But, Ayers has not alleged the kind of concrete, imminent future harm that would confer 
standing to seek injunctive relief in federal court. Article III standing to seek injunctive relief 
requires that a plaintiff demonstrate that he or she “ is immediately in danger of sustaining some 
direct injury as the result of the challenged official conduct.” Beck, 848 F.3d at 277 (cleaned up). 
“A future harm is not imminent just because there is an ‘objectively reasonable likelihood’ that it 
will someday come to pass.” Holmes, 156 F.4th at 429 (citation omitted). Rather, a plaintiff must 
show a substantial risk that harm will occur “in the near future.” Id.; see AFSCME, 172 F.4th 361, 
368 (4th Cir. 2026) (“Rather, to establish Article III injury, a plaintiff must plead and prove that it 

54 
 
has suffered (or will imminently suffer, absent a court’s intervention) a concrete injury.”) (citing 
TransUnion, 594 U.S. at 427) (emphasis added). 
The Fourth Circuit ’s en banc decision in AFSCME, 172 F.4th 361, reinforces the point. 
There, although the Court majority found that plaintiffs had Article III standing in connection with 
the Social Security Administration’s disclosure to DOGE of the sensitive personal information of 
plaintiffs’ members, id. at 367–71, the Court ’s majority nonetheless vacated the preliminary 
injunction, reasoning that plaintiffs had not shown a substantial and imminent risk of future 
irreparable harm. Id. at 372–74. The Court underscored that “ a preliminary injunction cannot 
reach back in time to prevent or undo irreparable harm that has already occurred,” and stated that 
“the key question . . . is whether a preliminary injunction will prevent plaintiffs from suffering 
new or additional irreparable harm.” Id. at 372. Thus, AFSCME illustrates that past injury, even 
where concrete enough to support Article III standing, does not establish the imminent future harm 
necessary to support prospective relief. 
Garey, 35 F.4th 917, also provides guidance. The Garey Court determined that the group 
of plaintiffs seeking injunctive relief did not have standing because there was no evidence that they 
were subject to imminent or certainly impending harm. Garey, 35 F.4th at 923. The Court 
observed that a plaintiff can meet “‘the injury-in-fact requirement for prospective relief’ either by 
demonstrating ‘a sufficiently imminent injury in fact’ or by demonstrating ‘an ongoing 
injury’. . . .” Id. at 922 (quoting, inter alia, Deal, 911 F.3d at 189). The Court agreed with the 
district court that plaintiffs did not show that they were “‘subject to any imminent harm.’” Id. at 
922. Specifically, because the plaintiffs “narrowed their case” to the unlawful “obtaining” of 
protected information, rather than using or disclosing, and the “obtaining of [plaintiffs’] personal 
information is a fait accompli,” there was no “ongoing or imminent injury.” Id. at 923. The Court 

55 
 
added that the “mere possibility” of a “future ‘obtaining’ violation cannot support injunctive relief. 
Id.; see City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983) (stating that “past wrongs do not in 
themselves amount to that real and immediate threat of injury” needed for prospective relief). 
Here, the Complaint’s general allegations that Vineyard Vines’s emails create a false sense 
of urgency and stimulate consumers to make purchases do not establish that any named plaintiff 
specifically faces an imminent risk of making an improvident purchase. See Holmes, 156 F.4th at 
433 (stating that, “ without alleging anything to support that [the plaintiff], specifically, had a 
substantial risk of suffering future harm, [the plaintiff] could not establish standing for prospective 
relief”). For example, the Complaint says nothing about Ayers’s current shopping intentions, his 
susceptibility to Vineyard Vines’s marketing tactics, or any particular likelihood that he will make 
a future purchase in reliance on a deceptive subject line. 
But, even if I were to accept that the risk of future receipt of deceptive emails could 
constitute a future harm, that theory would still fail for the same reason that past receipt does not 
constitute concrete harm: T he emails are essentially solicited. The possibility of receiving more 
emails with misleading subject lines is no more a cognizable future injury than the emails already 
received. 
C. 
 In a last-ditch argument, defendant contends, in the alternative, that even if this Court finds 
that plaintiffs lack Article III standing, the Court should deny the Remand Motion because remand 
would be futile. ECF 30 at 25–27. Defendant's futility theory rests on a preemption argument , 
contending that CAN-SPAM expressly preempts state statutes that “regulate[] the use of electronic 
mail to send commercial messages, ” 15 U.S.C. § 7707(b)(1), subject to a narrow exception for 
claims premised on “torts involving misrepresentations,” i.e., fraud and deceit. Omega World 

56 
 
Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348, 354 (4th Cir. 2006). According to VV, 
because plaintiffs acknowledge that their claims lack allegations as to the elements of common 
law fraud, the claims fall outside the fraud-and-deceit exception to CAN-SPAM preemption. ECF 
30 at 26–27. Therefore, according to defendant, plaintiffs’ claims are doomed in any forum, and 
remanding them would waste judicial resources. Id. Both parties have submitted several Notices 
of Supplemental Authority that they assert support their positions on preemption. See ECF 52; 
ECF 53; ECF 55; ECF 56; ECF 60. 
In my view , defendant’s argument fails at the threshold. In Roach v. West Virginia 
Regional Jail & Correctional Facility Authority, 74 F.3d 46, 49 (4th Cir. 1996), the Fourth Circuit 
made clear that “the futility of a remand to . . . state court does not provide an exception to the 
plain meaning of ” 28 U.S.C. § 1447(c). More recently, in Wells , 150 F.4th at 308, the Fourth 
Circuit reaffirmed Roach unequivocally, stating: “[W]e squarely held that there is no ‘ futility’ 
exception to § 1447(c) remands. If the federal court lacks subject matter jurisdiction, it must 
remand the case.” (Emphasis in original ). Further, the Wells Court indicated that it was “ in no 
position to second-guess” Roach. Id. 
Defendant asserts that “Roach misread the Supreme Court’s decision in Int’l Primate Prot. 
League v. Adm’rs of Tulane Educ. Fund, et al., 500 U.S. 72, 89 (1991).” ECF 30 at 27. I decline 
defendant’s invitation to tell the Fourth Circuit that its decision in Roach is erroneous. 
Because this Court lacks subject matter jurisdiction, it must remand the case to State court. 
28 U.S.C. § 1447(c). The merits of defendant's CAN -SPAM preemption argument, which may 
well be dispositive of the ultimate viability of the claims, are for the State court to address in the 
first instance. 
 

57 
 
D. 
Plaintiffs seek an award of attorneys’ fees pursuant to 28 U.S.C. § 1447(c). ECF 41 at 24–
25. Under § 1447(c), “[a]n order remanding the case may require payment of just costs and any 
actual expenses, including attorney fees, incurred as a result of the removal.” However, attorneys’ 
fees are not awarded as a matter of course. Rather, “[a]bsent unusual circumstances, courts may 
award attorney’s fees under § 1447(c) only where the removing party lacked an objectively 
reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 
(2005). Conversely, “when an objectively reasonable basis exists, fees should be denied.” Id. 
In the Reply, plaintiffs contend that defendant’s removal was not merely wrong, but that 
defendant “intentionally and systematically fabricated and presented non- existent factual 
allegations” to manufacture standing, by importing allegations about inbox inundation, time spent 
deleting emails, and imminent risk of improvident purchase that find no basis in the Complaint. 
ECF 41 at 26. Further, plaintiffs argue that defendant advanced arguments that this district has 
already rejected in light of TransUnion, urged reliance on Beyond Systems as though TransUnion 
had not been decided, and drew comparisons to inapposite California and Washington cases arising 
under a materially different statutory regime. Id. at 26–27. 
I disagree. Although defendant’s contentions did not square with the actual text of the 
Complaint, the argument s were certainly not frivolous. D efendant’s removal was premised on 
legal arguments regarding Article III standing in the context of anti-spam statutes that, in my view, 
concern a contested area of law on which courts across the country have reached differing results. 
Defendant’s arguments were not frivolous . Indeed, plaintiffs conflate a lack of success 
with frivolity. If anything, it is the attorney’s fee request that I regard as frivolous. Therefore, I 
shall deny plaintiffs’ request for attorneys’ fees. 

58 
 
IV. Motion to Strike 
The parties filed a total of nine notices of suppl emental authority. See ECF 51; ECF 52; 
ECF 53; ECF 54; ECF 55; ECF 56; ECF 59; ECF 60; ECF 61 . In particular, plaintiffs provide d 
six notices, and defendant provided three. Each of the notices set forth cases that had been decided 
after briefing of the motions was complete . P laintiffs’ notices did not contain any substantive 
argument, analysis, or interpretation. In contrast, in ECF 56, defendant responded to plaintiffs ’ 
notice (ECF 55) with a one-and-a-half-page letter that substantively addressed the cases plaintiffs 
had brought to the Court ’s attention. Thereafter, plaintiffs filed the Motion to Strike (ECF 57), 
contending that ECF 56 constitutes an unauthorized surreply. Plaintiffs point out that I previously 
granted a motion to strike under similar circumstances . See ECF 57 at 2 (citing Cordish 
Companies, Inc. v. Affiliated FM Ins. Co., 573 F. Supp. 3d 977, 989 (D. Md. 2021), aff'd, 2022 
WL 1114373 (4th Cir. Apr. 14, 2022)). 
Counsel on both sides flooded the Court with nine notices of supplemental authority. 
Vineyard Vines overstepped by filing a substantive response. But, the resulting Motion to Strike 
calls for the Court to engage in an unproductive use of its resources. In my view, plaintiffs were 
too preoccupied with whether they could move to strike, and seemingly did not consider whether 
it was truly necessary to do so. 
The arguments provided by defendant in ECF 56 do not alter the analysis set forth above. 
Resolving the parties’ dispute about its propriety is unnecessary to the disposition of the Motion. 
Therefore, in the interest of judicial efficiency, I shall deny the Motion to Strike as frivolous. 
V. Conclusion 
Plaintiffs have not alleged a concrete injury -in-fact sufficient to establish Article III 
standing. See Spokeo, 578 U.S. at 341 (“Article III standing requires a concrete injury even in the 

59 
 
context of a statutory violation.” ); TransUnion, 594 U.S. at 426–27 ( “Only those plaintiffs who 
have been concretely harmed by a defendant's statutory violation may sue that private defendant 
over that violation in federal court.”). And, because plaintiffs lack Article III standing, this Court 
lacks subject matter jurisdiction to hear their claims. See White Tail Park , 413 F.3d at 458–59. 
Therefore, I must remand the case to State court. See 28 U.S.C. § 1447(c ); ColonialWebb 
Contractors Co., 2026 WL 1204647, at *3. 
For the foregoing reasons, I shall grant plaintiffs’ Remand Motion (ECF 6) , and I shall 
remand the case to the Circuit Court for Baltimore County. I shall also deny as moot defendant’s 
Surreply Motion (ECF 43) and plaintiffs’ Motion to Strike (ECF 57). Moreover, I shall deny 
defendant’s Motion to Dismiss (ECF 31), without consideration of the merits, and without 
prejudice to defendant’s right to renew the motion in State court. 
An Order follows, consistent with this Memorandum Opinion. 
 
Date: May 21, 2026 /s/ 
 Ellen L. Hollander 
 United States District Judge 

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