Clark v. Eddie Bauer LLC, 532 P.3d 880

Clark purchased garments at Eddie Bauer Outlet stores that were advertised as deep discounts (e.g., “50% off” from a higher “list” price), but most outlet items were manufactured for outlets and never actually sold at the tagged list prices.
Clark alleges she paid sale prices she would not have paid had she known the items were never sold at the represented list prices.
She sued under Oregon’s Unlawful Trade Practices Act (UTPA), ORS 646.605–646.656, alleging violations including false representations about price reductions and undisclosed origins of comparative prices.
The district court dismissed, holding Clark failed to plead an “ascertainable loss” because defendants did not misrepresent product quality or characteristics.
The Ninth Circuit certified the question whether a consumer can establish an ascertainable loss under ORS 646.638(1) based on misrepresentations about price history or comparative price (the “purchase-price” theory).
The Oregon Supreme Court accepted certification, limited its inquiry to the purchase-price theory, and held that a purchase-price theory can, in some circumstances, establish an ascertainable loss under the UTPA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an "ascertainable loss" under ORS 646.638(1) can be the purchase price where a consumer bought in reliance on a misrepresentation of price history or comparative price	Clark: Yes — purchase-price theory; loss equals amount paid because she would not have purchased but for the misrepresentation	Eddie Bauer: No — Clark received the product she paid for and suffered only subjective disappointment, not an economic loss	Held: Yes — the purchase-price theory is a viable way to show ascertainable loss if the buyer proves she would not have purchased but for the misrepresentation
Whether reliance is required to prove causation for a purchase-price theory	Clark: Reliance is shown by the purchase; causation follows	Eddie Bauer: Must prove actual reliance; otherwise the claim conflates the deceptive act with injury	Held: Reliance is the logical causal link for purchase-price loss; plaintiff must show she relied (i.e., would not have bought absent the misrepresentation); court left class-certification and proof-by-common-evidence questions to lower courts

Pearson v. Philip Morris, 358 Or 88 (discusses diminished-value and purchase-price theories of ascertainable loss under the UTPA)
Weigel v. Ron Tonkin Chevrolet Co., 298 Or 127 (explains broad reading of "ascertainable loss" and consumer-protection purpose of the UTPA)
Hinchliffe v. American Motors Corp., 184 Conn 607 (connecticut case endorsing purchase-price framing: buyer loses purchase price when did not get what was bargained for)
Shaulis v. Nordstrom, Inc., 865 F.3d 1 (1st Cir.) (rejects per se induced-purchase theory under Massachusetts law; discussed by court and distinguished)
Simonsen v. Sandy River Auto, LLC, 290 Or App 80 (Oregon Ct App) (discusses advantageous-bargain/diminished-value theory)
Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (New York) (declines to treat mere deception as cognizable economic injury under NY law)