Susan CLARK, for herself and/or on behalf of all others similarly situated, Appellant, v. EDDIE BAUER LLC and Eddie Bauer Parent, LLC, Appellees.
No. 16; SC S069438
In the Supreme Court of the State of Oregon
June 29, 2023
371 Or. 177
DeHOOG, J.
(United States Court of Appeals for the Ninth Circuit No. 2135334)
On certified question from the United States Court of Appeals for the Ninth Circuit; certified order dated April 14, 2022, certification accepted May 19, 2022.
Argued and submitted November 29, 2022.
Che Corrington, Hattis & Lukacs, Bellevue, Washington, argued the cause and filed the briefs for appellant.
Michael Vatis, Steptoe & Johnson LLP, New York, New York, argued the cause and filed the brief for appellees. Also on the brief was Sara Kobak, Schwabe, Williamson & Wyatt, PC, Portland.
Christopher A. Perdue, Assistant Attorney General, Salem, filed the brief for amicus curiae Oregon Department of Justice. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Chris Mertens, Mertens Law LLC, Portland, filed the brief for amicus curiae Oregon Consumer Justice. Also on the brief was Kelly Jones, The Law Office of Kelly D. Jones, Portland.
Nadia H. Dahab, Sugerman Dahab, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.
Anna-Rose Mathieson, Complex Appellate Litigation Group LLP, San Francisco, California, filed the brief for amici curiae Chamber of Commerce of the United States of America, National Retail Federation, Retail Litigation Center, and Oregon Business & Industry Association.
Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, and Bushong, Justices, and Balmer and Walters, Senior Judges, Justices pro tempore.*
DeHOOG, J.
The certified question is answered.
* Nelson, J., resigned February 25, 2023, and did not participate in the decision of this case. James, J., did not participate in the consideration or decision of this case.
DeHOOG, J.
“Does a consumer suffer an ‘ascertainable loss’ under [ORS] 646.638(1) when the consumer purchased a product that the consumer would not have purchased at the price that the consumer paid but for a violation of [ORS] 646.608(1)(e), (i), (j), (ee), or (u), if the violation arises from a representation about the product‘s price, comparative price, or price history, but not about the character or quality of the product itself?”
For the reasons that follow, our answer to that question is yes.
I. BACKGROUND
We take the facts from the Ninth Circuit‘s certification order. Clark v. Eddie Bauer LLC, 30 F.4th 1151 (9th Cir. 2022) (Clark II). Defendants Eddie Bauer LLC and Eddie Bauer Parent, LLC, operate the Eddie Bauer Outlet chain of stores, where they sell branded clothing.1 More than 90 percent of the products offered at the outlet stores are manufactured solely for sale at the outlet stores and are not
sold elsewhere. Defendants advertise clothing at the Eddie Bauer Outlet stores as being sold at a substantial discount, typically between 40 percent and 70 percent off. However, with limited exceptions, the clothing is never sold—at the outlet stores or anywhere else—at the “list” price, i.e., the price shown on each product‘s original tag; the clothing sold at the outlet stores is only ever sold at “discounted” prices. Id. at 1153.
In 2017, plaintiff purchased two articles of clothing from one of defendants’ outlet stores in Oregon. She purchased a “Fleece Zip,” which had an attached tag indicating an original price of $39.99, but whose accompanying signage advertised the garment as being sold at 50 percent off, resulting in a “sale” price of $19.99. Plaintiff also purchased a “Microlight Jacket” with a tag price of $99.99. The signage for that jacket indicated that it was on sale for $49.99. For both items, plaintiff paid the “sale” price. In 2018, plaintiff returned the Microlight Jacket and received a $49.99 credit, which she applied toward the purchase of a “StormDown Jacket.” The product tag for that jacket showed a list price of $229.00. However, a sticker on the tag showed a reduced price of $199.99, and adjacent signage noted an additional 50 percent discount, resulting in an end “sale” price of $99.99, the amount that plaintiff paid. Id.
Plaintiff subsequently filed a complaint in federal district court, alleging that defendants had violated multiple provisions of the UTPA, including, among others,
That is, plaintiff alleged that she had been fraudulently induced to buy those garments by defendants’ false representation that she was buying them at a bargain price. In her complaint, plaintiff sought actual or statutory damages, punitive damages, equitable relief in the form of disgorgement or restitution, and a permanent injunction prohibiting defendants from engaging in further conduct in violation of the UTPA.3
Defendants moved to dismiss plaintiff‘s complaint on the ground that it failed to allege an “ascertainable loss of money or property,” as required of a complainant pursuing
The district court granted defendants’ motion to dismiss. The court held that the complaint failed to state a claim under the UTPA, because it did not allege that defendants had made false representations about the character or quality of the garments that plaintiff bought, which the district court understood to be essential under this court‘s
decision in Pearson v. Philip Morris, Inc., 358 Or. 88, 122, 361 P.3d 3 (2015). Echoing language found in
“Some misstatement as to a characteristic, quality, or feature of the product is required. [Plaintiff‘s] complaint provides no such allegation. As a result, the Court must find that she did not adequately plead an ascertainable loss.”
Clark v. Eddie Bauer LLC, No. C20-1106-JCC, 2021 WL 1222521 at *6 (WD Wash, Apr 1, 2021) (Clark I).5
Plaintiff appealed the district court‘s ruling to the Ninth Circuit, arguing that the district court had erred in concluding that the complaint did not adequately allege ascertainable loss. Plaintiff argued that defendants’ (and the district court‘s) view as to what constitutes an ascertainable loss under the UTPA is too limited, noting that many of the provisions of
demand, which enabled defendants to charge higher prices for their products across the board. Plaintiff referred to that theory as the “premium price” theory.
Upon reviewing the parties’ arguments, the Ninth Circuit noted that, unlike the district court, it was not persuaded that this court‘s decision in Pearson required it to reject plaintiff‘s various theories of loss. Clark II, 30 F.4th at 1156. However, it also did not understand any of the Oregon cases cited by the parties to resolve the question
II. ANALYSIS
A. Background of the UTPA
The Oregon legislature first enacted consumer-protection legislation in 1965. Or Laws 1965, ch 490, §§ 3-4. Those early statutes targeted a narrow list of unfair business practices and permitted only district attorneys to enforce their prohibitions. Over the next few years, those statutes came to be seen as “weak and ineffective,” in part because they did not authorize lawsuits “by the defrauded consumer himself, either individually or as a member of a victimized class.” Ralph James Mooney, The Attorney General as Counsel for the Consumer: The Oregon Experience, 54 Or L Rev 117, 119 (1975). Oregon‘s Attorney General at the time, Lee Johnson, testified at a hearing before the legislature that those first consumer-protection statutes failed to provide robust enforcement provisions:
“The most serious defect with the present law is the lack of adequate enforcement provisions both from the standpoint of legal remedies and an appropriate enforcing
agency. Under the present law, enforcement is the exclusive responsibility of the district attorney. *** The committee also concluded that private individuals who are aggrieved by the deceptive trade practice should have some way of attaining restitution.”
Exhibit 1, House Committee on Judiciary, HB 1088, Feb 10, 1971 (“Consumer Protection Act Proposal“).
The legislature responded to those concerns by enacting the UTPA, which vastly expanded the range of prohibited conduct7 and authorized private plaintiffs to seek actual or statutory damages if they suffered an “ascertainable loss of money or property” as a result of any trade practice that the UTPA deemed unlawful.8 Or Laws 1971, ch 744, § 13, codified at
For purposes of the certified question, it is undisputed that defendants’ conduct in pricing its goods as alleged in the complaint violated certain provisions of the UTPA. The certified question, however, raises the preliminary issue of what constitutes an “ascertainable loss.” We turn to that issue.
The UTPA does not expressly define “ascertainable loss.” We therefore construe that term using the methodology set out in State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009). As we stated in Gaines, our “paramount goal” is
to ascertain the intent of the legislature. Id. at 171. To do so, we consider the statutory text and context, along with any relevant and helpful legislative history. Id. at 172.
In addition, when, as here, a statutory term was adopted from a model act, this court “assume[s] that the legislature contemplated that that term would reflect its national understanding” under the model act at the time the model act was adopted in Oregon. Wright v. Turner, 354 Or. 815, 825, 322 P.3d 476 (2014). Thus, in interpreting a term from a model act, we also consider the persuasive value of “judicial interpretations of that term that would have been available to the legislature” at the time of adoption. Id. (citing State ex rel Western Seed v. Campbell, 250 Or. 262, 270-71, 442 P.2d 215 (1968), cert den, 393 US 1093 (1969) (“When one state borrows a statute from another state, the interpretation of the borrowed statute by the courts of the earlier enacting state ordinarily is persuasive.“)).
Although this court has not previously addressed the specific issue framed by the Ninth Circuit, we have interpreted the term “ascertainable loss” to mean, generally, “any determinable loss,” even a loss that cannot be measured exactly. Weigel, 298 Or at 137. In Pearson, the court stated that an “ascertainable loss” is one that is “capable of being discovered, observed, or established,” and “objectively verifiable, much as economic damages in civil actions must be.” 358 Or at 117. The court further made clear in Pearson that, in private actions under the UTPA, only economic losses may be recovered; “noneconomic losses cognizable in
a civil action—such as physical pain, emotional distress, or humiliation *** will not satisfy a private UTPA plaintiff‘s burden.” Id. Notably, however, the court in Weigel explained that “[t]he private loss indeed may be so small that the common law likely would reject it as grounds for relief, yet it will support an action under the statute.” 298 Or at 136.
Furthermore, we have explained that it is appropriate to take a broad view of what constitutes an ascertainable loss: “[I]n enacting
B. Acceptance of the Certified Question
Returning to the certified question, the Ninth Circuit has asked whether plaintiff can show that she suffered an ascertainable loss as a result of defendant‘s violation of the UTPA “if the violation arises from a representation about the product‘s price, comparative price, or price history, but not about the character or quality of the product itself.”9
observe two things about that question. First, in referring to circumstances in which a consumer has “purchased a product that the consumer would not have purchased at the price that the consumer paid,” the question appears to reference our discussion of the “purchase price” theory in Pearson, which both the Ninth Circuit and the federal district court addressed in their own opinions. Second, because the Ninth Circuit distinguished cases such as plaintiff‘s—involving allegations related to false pricing as opposed to misrepresentations regarding a product‘s character or quality—that court appears to have understood Pearson to endorse the “purchase price” theory as to some violations of the UTPA but not necessarily as to others.
In our view, it was appropriate to accept the Ninth Circuit‘s certified question to address two issues: (1) whether this court has in fact previously recognized a purchase price theory for any purpose; and (2) whether, regardless of the outcome of that inquiry, it is a viable theory for purposes of the alleged UTPA violations in plaintiff‘s case. Because, however, it is not necessary to decide the viability of plaintiff‘s other theories of loss to address those purposes for which we accepted certification, we respectfully decline the Ninth Circuit‘s invitation to broaden our inquiry to consider the viability of those other theories. Thus, we proceed to consider whether, under Pearson or otherwise, plaintiff‘s reliance on a purchase price theory to establish ascertainable loss is viable under the UTPA.10
C. Our Focus on “Ascertainable Loss”
We begin with a general observation regarding the UTPA: An individual consumer‘s ability to pursue a private right of action typically does not depend on which particular UTPA violation the complaint alleges. That is, the UTPA does not limit private rights of actions to specific unfair trade practices, whether involving a false representation as to a product‘s character or quality or, indeed, any false representation. Rather, under the plain terms of
Here, therefore, plaintiff only was required to allege that, as a result of any practice prohibited under the UTPA, she suffered an ascertainable loss—that is, a loss capable of being observed or determined, however small.13 Pearson, 358 Or at 117
verifiable“); Weigel, 298 Or at 136-37 (ascertainable loss is “any determinable loss,” including loss that cannot be measured exactly; loss may be “so small that the common law likely would reject it as grounds for relief“). We turn to whether plaintiff‘s purchase price theory of loss is an “ascertainable loss” under Oregon law.
D. The Viability of Plaintiff‘s Purchase Price Theory
As discussed above, the UTPA defines a host of unlawful trade practices, which may cause ascertainable losses in myriad ways. Ascertainable loss, in turn, can be established in various ways. The question before the court is whether plaintiff‘s purchase price theory is a viable means of establishing ascertainable loss under the UTPA. For the reasons that follow, we conclude that it is a viable theory of loss.
We begin with plaintiff‘s assertion that, in Pearson, this court recognized the viability of the purchase price theory. Because the validity of the purchase price theory of loss was not directly at issue in Pearson, a discussion of that case will place the court‘s statements regarding ascertainable loss in context and help explain their significance here.
In Pearson, the plaintiffs were two individuals who brought a putative class action alleging that Philip Morris had committed an unlawful trade practice under
The plaintiffs in Pearson had proffered two distinct theories of ascertainable loss: (1) they argued that they and the putative class members had purchased a product that was worth less than they had paid for it and that their damages arose from that “diminished value“—that is, the ascertainable loss was the difference between the value of the product as advertised and the value of the product that they received; and (2) they argued that they and other class members had purchased Marlboro Light cigarettes with the belief that they would deliver less tar and nicotine than regular Marlboros, and that they had not received what they had been deceptively led to believe they were buying. Under that theory, their damages would be measured by the amount that they had each paid for the defendant‘s product—that is, they argued that they were entitled to a full refund of the “purchase price.”
With respect to the plaintiffs’ “diminished value” theory of loss, the court observed that the undisputed evidence established that there was not (nor had there ever been) a price differential between Marlboro Lights and regular Marlboros. As a result, the plaintiffs had not paid more for cigarettes that
However, upon turning to the plaintiffs’ purchase price theory, the court reversed its approach, first focusing on whether common issues predominated. The court explained that a key issue in making that determination was whether, to prevail on their class claim, the plaintiffs would have to prove “reliance“—that is, whether the plaintiffs would have to prove that Philip Morris‘s misrepresentation had been a substantial factor in each class member‘s decision to purchase Marlboro Lights. Id. at 125-26. The court noted that
not expressly require reliance, but it does require that a person pursuing a private action under the UTPA demonstrate “an ascertainable loss *** as a result of” an unlawful trade practice. In other words, the statute requires a plaintiff to show that the unlawful trade practice “caused” the ascertainable loss. Id. However, the court stated, “[w]hether reliance is required to establish causation turns on the nature of the unlawful trade practice and the ascertainable loss alleged.” Id. at 126. And as to the case before it, where the alleged unlawful trade practice happened to be a misrepresentation regarding a product‘s features, the court held,
“[c]ausation is logically established if a purchaser shows that, without the misrepresentation, the purchaser would not have bought the product and thus should be entitled to a refund. *** As a function of logic, not statutory text, when the claimed loss is the purchase price, and when that loss must be ‘as a result of’ a misrepresentation, reliance is what ‘connects the dots’ to provide the key causal link between the misrepresentation and the loss.”
Id. In rejecting the plaintiffs’ argument that, under the circumstances of the case, they did not have to establish reliance on the part of all class members, the court stated:
“It is not the nature of the misrepresentation in this case that requires proof of reliance. It is the misrepresentation coupled with plaintiffs’ theory for having suffered a loss in the form of the purchase price because they did not get what they believed they were buying.”
Id. at 127. Ultimately, the court determined that the plaintiffs had failed to show that they could litigate the issue of reliance—as relevant to their purchase price theory—through common evidence rather than through the testimony of the individual class members; they therefore had not carried their burden to show that, as to that element of their case, common issues predominated over individual ones. Id. at 135-36.
Notably, unlike its decision regarding the plaintiffs’ diminished value theory, the court did not expressly determine whether the plaintiffs’ purchase price theory could be viable under the facts of that case. However, the court presumed that it was valid for purposes of analyzing the
classwide reliance issue. See id. at 126 (explaining requirement of proving individual causation when the theory of loss is that “the purchaser would not have bought the product and thus should be entitled to a refund,” i.e., “when the claimed loss is the purchase price“); id. at 127 (explaining that a showing of reliance was essential given the “plaintiffs’ theory for having suffered a loss in the form of the purchase price because they did not get what they believed they were buying“).
And, in her concurring opinion in Pearson, Justice Walters elaborated on why, in her view, a purchase price theory of loss—one in which there is no indication that a product‘s objective “value” is less than the product‘s represented value—should be cognizable under the UTPA. Relying on this court‘s decision in Weigel, Justice Walters explained that, because the UTPA was designed to encourage private enforcement of the law‘s
“‘[P]rivate claims under the [UTPA] are not limited to those where a plaintiff shows ‘an economic loss in the sense of a difference between the price paid and some objective measure of market value.’ The act also permits a claim when a plaintiff can establish a loss based on the fact he or she expended funds ‘for goods that are not as desired by the customer and represented by the seller irrespective of their market value to others.’ ”
Pearson, 358 Or at 142 (Walters, J., concurring) (quoting Weigel, 298 Or at 133, 134 (citations omitted)). Further, Justice Walters stated, a plaintiff “who can show that he or she would not have purchased a product but for the seller‘s misrepresentations about that product[] may seek return of the money paid for the product irrespective of its market value.” Id. at 142-43.
As the foregoing suggests, the court in Weigel had earlier suggested that it might be possible to prove an ascertainable loss with evidence that the product was not what was bargained for, even if the plaintiff could not establish that the product‘s value was less than the seller had represented. In Weigel, the court agreed that a showing of diminished value was one way to prove ascertainable loss under
the UTPA, but the court observed that it was not necessarily the only way to make that showing. The court posited that, in requiring proof of an ascertainable loss, the legislature may well have intended only to “exclude a civil action by a customer who was attracted by a forbidden misrepresentation but in fact did not act upon it, or who received immediate satisfaction at no expense when bringing the matter to the seller‘s attention.” 298 Or at 134. In the court‘s view, that understanding of the statute was plausible, given that the UTPA authorized both public and private enforcement, and, at least as to public enforcement, did not require proof that any particular person had suffered an economic loss. The court noted:
“The civil action authorized by
ORS 646.638 is designed to encourage private enforcement of the prescribed standards of trade and commerce in aid of the act‘s public policies as much as to provide relief to the injured party. This is apparent from the section itself. It allows recovery of actual damages or $200, whichever is greater, plus punitive damages, costs, and attorney fees.”
Weigel, 298 Or at 134-35 (footnote omitted). The court in Weigel then quoted with approval the Connecticut Supreme Court‘s interpretation of the phrase “ascertainable loss” in that state‘s own law:
“‘Whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. That loss is ascertainable if it is measurable even though the precise amount of the loss is not known. *** In one sense the buyer has lost the purchase price of the item because he parted with his money reasonably expecting to receive a particular item or service. *** In another sense he has lost the benefits of the product which he was led to believe he had purchased. That the loss does not consist of a diminution in value is immaterial[.]’ ”
Id. at 136-37 (quoting Hinchliffe v. American Motors Corp., 184 Conn 607, 614, 440 A.2d 810, 814 (1981)). Thus, the court in Weigel agreed that, in at least some instances, ascertainable loss might well be established by proof that a consumer would not have purchased the product but for a seller‘s misrepresentation; in such cases, the plaintiff‘s loss would be measured by the purchase price of the item.
We recognize that, as in Pearson, the Weigel court‘s discussion of the purchase price theory was not the holding of that case. As we observed, the record in that case supported a finding of reduced value—it therefore was unnecessary to conclusively decide whether a purchase price theory of loss would be viable. Id. at 137 (“Scrutiny of the record reveals that the present case also does not turn on the question whether any objective loss in market value is required.“). Here, however, we must decide whether that theory is viable under the UTPA. For much the same reason that we stated in Weigel—and Justice Walters
At its essence, the purchase price theory is that one person has been induced by another person‘s unlawful activities to pay money for something that the first person would not otherwise have bought. In plaintiff‘s case, what she wanted was items of clothing whose selling price had, at some earlier time, been what defendants’ false price listings indicated. What she received, on the other hand, was merchandise that had never been offered for sale at those prices. Thus, whether or not those items ever sold at those higher price points, and whether or not defendants’ alleged pricing scheme can be viewed as representing that the items previously had retail or market values equivalent to the prices shown on their product tags, plaintiff paid money to defendants for articles of clothing that she would not have bought had she known their true price history. The money that plaintiff is out as a result is her “loss.”
Nothing in the UTPA ties the notion of “ascertainable loss” to proof that a person received something of lesser “value” than the person paid. As the Connecticut Supreme Court observed in discussing that state‘s statute, it should not matter that a person unlawfully led to believe that she was buying one thing ultimately received another thing of equal or even greater value. Hinchliffe, 184 Conn at 614, 440 A.2d at 814 (“To the consumer who wishes to purchase an energy saving subcompact, for example, it is no answer
to say that he should be satisfied with a more valuable gas guzzler.“).
To hold that there is no ascertainable loss under those circumstances would suggest one of two things: either (1) the legislature, despite rendering this very practice unlawful and authorizing private citizens to enforce the UTPA, intended for a person in plaintiff‘s shoes to be left without recourse under the UTPA; or (2) the parties’ transactions took place in a perfectly efficient economy, one in which a person deceived into buying an unwanted product could, entirely without financial or personal cost, resell the item for exactly the price that she had paid for it.
Neither view is tenable. The first understanding, as the Weigel court and Justice Walters have explained, is inconsistent with the objectives of the UTPA, which are themselves indicated by the legislature‘s empowerment of private citizens to enforce its provisions—including the ones at issue in this case—and its allowance of nominal damages where substantial loss cannot be shown. And the latter ignores reality. We decline to attribute either rationale to the legislature, which would be necessary to hold that a person does not suffer an ascertainable loss so long as she receives something of equal or greater value than the money she was deceived into giving up for it.
In resisting that conclusion, defendants observe that, when, as in Pearson or the Hinchliffe hypothetical, a seller misrepresents a product‘s characteristics or quality, there necessarily is a difference in value between the product as advertised and the product as it really is. In contrast, they reason, when, as here, the misrepresentation concerns a product‘s price history, the represented value of the product at the time of sale is in fact the product‘s exact value. Thus, in defendants’ view, the only harm that plaintiff has suffered is “subjective disappointment” that she failed to obtain the bargain that she believed she was getting, which defendants contend is not compensable as economic injury under the UTPA.
Defendants’ distinction is misplaced. To the extent that Pearson addressed the issue, the court expressly
recognized that there was not necessarily a difference in value whenever a product‘s characteristics differed from those that the seller had advertised. As explained above, the plaintiffs in Pearson had argued that, because there was a difference between the advertised product—cigarettes that were “light,” delivering less tar and nicotine—and the product that they actually received—cigarettes that were not “light” when smoked normally—the product that they bought necessarily had a lesser value than the product they thought they were
Defendants also point to several cases from other jurisdictions in which courts have rejected the purchase price theory, reasoning that, in arguing that a purchase of an item in reliance on a misrepresentation constitutes a loss of the purchase price, the plaintiffs were “conflat[ing] the deceptive act with the injury.” Naimi v. Starbucks Corp., 798 Fed Appx 67, 70 (9th Cir 2019) (memorandum opinion); see also Shaulis v. Nordstrom, Inc., 865 F.3d 1, 11 (1st Cir 2017) (construing Massachusetts law; concluding that viewing “mere purchase” as cognizable injury “merges the alleged deception with the injury“); Small v. Lorillard Tobacco Co., 94 NY2d 43, 56, 720 NE2d 892, 898 (1999) (no injury alleged under New York law where the complaint “sets forth deception as both act and injury“).
We disagree with the rationale expressed by those courts. In Shaulis, the only one of the above opinions to substantively explore the issue, the First Circuit considered whether, under the Massachusetts “Consumer Protection Act” (Chapter 93A), an allegation that the plaintiff had been “‘induced’ to make a purchase that she would not have made, but for” the defendant‘s pricing scheme was sufficient to state a claim. 865 F.3d at 10. Similarly—but not identically—to
private cause of action to a person “who has been injured by another person‘s use or employment of any method, act or practice declared to be unlawful” under that act. Mass Gen Laws, ch 93A, § 9(1); see also
That development, the First Circuit concluded, required it to reject the plaintiff‘s theory that she had been injured in the amount of the purchase price when she bought a sweater from the defendant‘s outlet store that sold for $49.97 but displayed a much higher “Compare At” price of $218.00 on the same tag. Id. at 4. Notably, however, none of the Massachusetts decisions that the First Circuit identified as exhibiting that recent trend involved an alleged “injury” comparable to that alleged by the plaintiff before it or, significantly, plaintiff in this case. Rather, those cases involved true “violation as injury” scenarios, one asserting that a retailer had unlawfully written customers’ personal identification information on credit card transaction forms—but had not used or mishandled that information in any way—and another raising a utility company‘s “fail[ure] to comply with certain storm preparedness regulations,” when no storm had occurred in the relevant time frame. Id. at 8-9. As the First Circuit understood those decisions, they rejected the plaintiffs’ claims as premised on alleged injuries that were “merely hypothetical or speculative.” Id. at 9 (explaining that decisions treated plaintiffs’ theories as “akin to a per se theory of injury,” alleging “only a possibility of adverse consequences—which did not occur” (emphasis in original)).
In applying that understanding to the plaintiff‘s “induced purchase” theory, the Shaulis court never meaningfully engaged her argument that the cognizable injury
she had suffered was the loss of money that she would have retained if the defendant had not unlawfully deceived her.14 Instead,
Thus, insofar as plaintiff‘s purchase price theory in this case might fail under Shaulis and similar cases, we reject the underlying rationale that it somehow “merges” the alleged violation with the asserted loss. As the court acknowledged in Weigel, individuals who were “attracted by a forbidden misrepresentation but in fact did not act upon it, or who received immediate satisfaction at no expense when bringing the matter to the seller‘s attention,” will have been subjected to deception, but they will not have suffered injury as a result. Weigel, 298 Or at 134. However, when a person acts in response to the deception by spending money that the person would not otherwise have spent, the person has
been injured to the extent of the purchase price as a result of that deception. That is, there has been both a violation—the seller‘s misrepresentation as to the item‘s price history—and a resulting ascertainable loss—the expenditure of the purchase price. That is what
To summarize, although neither Pearson nor Weigel held that the purchase price theory was a valid means of establishing ascertainable loss under the UTPA, neither forecloses such a theory, either, as the federal district court evidently believed. Moreover, both Weigel and Justice Walters‘s concurrence in Pearson express sound reasoning that, in our view, supports its recognition here. For much the same reasoning as that expressed in those opinions, we conclude that, if plaintiff can prove that she would not have purchased defendants’ garments had defendants not misrepresented their price history, plaintiff will satisfy the “ascertainable loss” requirement under the UTPA.
III. CONCLUSION
In answer to the question propounded to us by the Ninth Circuit, we hold that, an “ascertainable loss” within the meaning of the UTPA can, under some circumstances, flow from a consumer‘s decision to purchase a product in reliance upon the retailer‘s misrepresentation as to price history or comparative prices. Thus, plaintiff‘s purchase price theory is a viable theory of ascertainable loss even in the absence of a showing that the seller misrepresented some characteristic or quality of the product sold.
The certified question is answered.
Notes
“[With certain exceptions not relevant here,] a person that suffers an ascertainable loss of money or property, real or personal, as a result of another person‘s willful use or employment of a method, act or practice declared unlawful under ORS 646.608, may bring an individual action in an appropriate court to recover actual damages or statutory damages of $200, whichever is greater.”