Back in June, we wrote about the rising tide of litigation concerning marketing emails under various anti-spam statutes in Washington, California, Indiana, and Maryland. A federal judge in Indiana recently issued one of the first decisions addressing Indiana’s anti-spam statute: IDCEMA. See Johnson v. Ulta Salon, Cosmetics & Fragrance, Inc., No. 1:25-cv-02521, 2026 WL 2725590 (S.D. Ind. Sept. 15, 2026). 

The plaintiffs in that case claimed that subject lines in Ulta’s marketing emails—such as “SO MANY FREE GIFTS INSIDE” and “Don’t miss 10% off your purchase”—were false and misleading because the offers were subject to conditions and exclusions (which were disclosed in the body of the emails). 

The court rejected plaintiffs’ claim that the email subject lines were false. The court reasoned that “Plaintiffs never allege that Ulta failed to offer the gifts or percentage discounts referenced in the subject lines they attack, that qualifying conditions were concealed, or that any gift or discount was unavailable on its stated terms.”

The court, however, refused to dismiss plaintiffs’ claim that the subject lines were misleading. Plaintiffs alleged they would not have opened the promotional emails had the subject lines “said something about the fine print.” This was enough to survive a motion to dismiss. The court explained, “[w]hether any reasonable jury could find that Ulta’s emails are misleading is a question for another day. It is enough at present to conclude that Plaintiffs have stated an IDCEMA claim for emails that contain misleading subject lines[.]”

Although the court’s refusal to dismiss the misleading-subject-line claim may be troubling for defendants, the decision contains an important defense-friendly holding. The parties disputed whether the allegedly misleading nature of an email subject line must be evaluated in isolation or in the context of the email as a whole. Plaintiffs argued that IDCEMA prohibits false or misleading information in an email’s subject line, regardless of whether the body of the email contains disclosures or qualifications that clarify the offer. Ulta, by contrast, argued that the statute regulates commercial emails as a whole and does not impose a standalone disclosure obligation for subject lines. The court agreed with Ulta. Relying on the plain language of IDCEMA, the court held that the statute “puts the entire message at issue” and creates a cause of action for false or misleading information in a subject line only “when considering the entire message as a whole.” This is a significant ruling for defendants because it permits them to rely on disclosures, qualifications, and other information contained in the body of an email to rebut allegations that its subject line is false or misleading. Although those disclosures were insufficient to warrant dismissal at the pleading stage in Ulta, the court’s interpretation provides defendants with an important argument for challenging such claims as litigation progresses.

The Ulta decision is also notable because it rejected the argument that IDCEMA is preempted by the federal CAN-SPAM Act. CAN-SPAM preempts state statutes that regulate the use of email to send commercial messages. But it has an exception for statutes that prohibit falsity or deception. The Indiana court reasoned that the claims against Ulta fell into that savings clause, disagreeing with two Courts of Appeals and another district court. It found “unpersuasive” the Fourth and Ninth Circuits’ decisions in Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348 (4th Cir. 2006) and Gordon v. Virtumundo, 575 F.3d 1040 (9th Cir. 2009), which held that the CAN-SPAM savings clause covers only tortious misrepresentations. It also disagreed with Martin v. CCH, Inc., 784 F. Supp. 2d 1000 (N.D. Ill. 2011), which applied Omega and Gordon to a misleading-subject-line claim and found it preempted.

Although the Ulta decision is not binding on other courts, the decision creates additional uncertainty and potential exposure for retailers and other companies sending promotional emails to Indiana residents. With IDCEMA providing presumptive damages of $500 per offending email—compared to $100 under Washington’s CEMA as amended—Indiana could become an increasingly attractive forum for plaintiffs pursuing email subject-line class actions. Companies should review their marketing emails for compliance, and we will continue to monitor developments in Indiana and other states with similar statutes.