Susan Clark v. Eddie Bauer LLC
30 F.4th 1151
| 9th Cir. | 2022Background
- Plaintiff Susan Clark bought items at Eddie Bauer Outlet stores showing a higher “list” price and a lower “sale” price; she alleges the list prices were fictitious and outlets run perpetual discounts.
- Clark alleges she relied on discount/price-history representations and would not have paid the prices charged but for those representations.
- She sued under Oregon’s Unlawful Trade Practices Act (UTPA), Or. Rev. Stat. § 646.605 et seq., asserting violations including false price-reduction claims and improper comparative pricing.
- The district court dismissed with prejudice for failure to plead an “ascertainable loss of money or property” under § 646.638(1), reasoning Pearson v. Philip Morris requires misstatements about product character/quality to support a purchase-price refund theory.
- The Ninth Circuit concluded the dispositive question is one of Oregon law: whether an ascertainable loss can be shown when an alleged unlawful practice concerns price/price history (not product quality), and therefore certified that question to the Oregon Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a consumer suffers an "ascertainable loss" under ORS 646.638(1) when she paid a price she would not have paid but for misrepresentations about price, comparative price, or price history (not product quality) | Clark: purchase-price refunds qualify as ascertainable loss when misrepresentations about price induce the purchase | Eddie Bauer: under Pearson, an ascertainable-loss refund theory requires misrepresentation about the product’s character/quality; mere disappointment in deal is insufficient | Ninth Circuit certified the precise question to the Oregon Supreme Court instead of deciding it; declined to treat Pearson as foreclosing price-based theories conclusively |
| Purchase-Price Theory (refund of purchase price because plaintiff would not have bought absent the misrepresentation) | Clark: the money paid is an ascertainable loss because the misrepresentation caused the purchase | Eddie Bauer: refund theory requires misrepresentation about product characteristics and individualized proof of reliance; therefore not a common ascertainable loss | Ninth Circuit: Pearson requires reliance when the alleged misrepresentation concerns product characteristics, but does not categorically preclude a price-based purchase-price theory; left resolution to Oregon Supreme Court |
| Alternative theories (advantageous-bargain; inflated-consumer-demand) | Clark: she lost the bargain she reasonably expected (advantageous-bargain) and Defendants’ scheme inflated demand/prices (inflated-demand) | Eddie Bauer: these theories extend Oregon precedent and are not adequately supported by controlling cases | Ninth Circuit: these theories may extend Oregon law; invited Oregon Supreme Court to decide their viability |
Key Cases Cited
- Pearson v. Philip Morris, 361 P.3d 3 (Or. 2015) (discusses reliance and class commonality for refund theory where alleged misrepresentation concerned product characteristics)
- Simonsen v. Sandy River Auto, LLC, 413 P.3d 982 (Or. Ct. App. 2018) (purchaser can have ascertainable loss where product was advertised as better than received despite paying fair market value)
- Weigel v. Ron Tonkin Chevrolet Co., 690 P.2d 488 (Or. 1984) (ascertainable loss where a car sold as new was previously used, causing depreciation)
- Sanders v. Francis, 561 P.2d 1003 (Or. 1977) (noting § 646.608(1)(j) targets deceptive “slashed prices” and bogus sale claims)
- Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524 (9th Cir. 2011) (federal courts sitting in diversity must apply state substantive law and follow highest state court decisions)