I. BACKGROUND
A. Historical Facts
"Because plaintiffs prevailed before the jury in the trial court, we review the facts in the light most favorable to them." Hall v. Dept. of Transportation ,
B. Plaintiff's Specific UTPA Claims
On December 29, 2011, plaintiff filed a putative class action complaint against BP
In his complaint, plaintiff alleged that BP violated numerous provisions of OAR 137-020-0150. As relevant here, plaintiff alleged that BP "failed to clearly and conspicuously display on all street signs * * * the debit fee charge in violation of OAR 137-020-0150(3)(d)(A)." That rule requires retailers of gasoline to disclose any "condition" affecting the availability of the lowest cash price for gasoline that is advertised on their street signs. See OAR 137-020-0150(3)(d)(A) ("[i]f the lowest cash prices are available only under some
C. Procedural Background
To provide general context for the assignments of error, we outline the procedural history of this case. We provide more detail later in our discussion of each individual assignment of error.
Plaintiff sought class certification, and, on August 30, 2013, the court certified a class of individuals who, between January 1, 2011 and August 30, 2013, bought gasoline at Oregon ARCO or am/pm service stations with a debit card and were charged a debit card fee. Before trial, BP moved for summary judgment, arguing that it had not violated OAR 137-020-0150(4)(e) as a matter of law. The court denied BP's motion for summary judgment. The claims proceeded to trial in January 2014. At the close of evidence, BP moved for directed verdict on plaintiff's claim under OAR 137-020-0150(3)(d)(A), arguing that the evidence was insufficient to prove that it had violated that rule. Additionally, BP argued that plaintiff had failed to prove causation or reliance. The trial court denied BP's motion for directed verdict. On January 31, the jury returned a verdict of liability for statutory damages after separately finding that BP had violated OAR 137-020-0150(4)(e) and OAR 137-020-0150(3)(d)(A).
Then in April of that year, BP filed two motions: The first was a motion to dismiss on the grounds that the Gasoline Price Advertising Rule is invalid, and the second was a motion to strike or, alternatively, to decertify the class on the ground that the statutory damages were unconstitutionally excessive. The trial court denied those motions. On December 14, 2015, after the Supreme Court decided Pearson v. Philip Morris, Inc. ,
II. DISCUSSION
A. Challenges to OAR 137-020-0150
In its first, second, and third assignments of error, BP challenges various provisions of OAR 137-020-0150, also known as the Gasoline Price Advertising Rule. In BP's second and third assignments, the essence of BP's argument is that the rule does not apply to any "flat feе" that is not part of the price per gallon of fuel. We disagree. As we explain below, the rule applies to "conditions" that affect the price per gallon of fuel. The 35-cent debit card fee is a "condition" that affects the price per gallon and, thus, the fee must be displayed on each street sign. Because BP charged a 35-cent debit card fee and did not disclose that "condition" on its street sign as required by OAR 137-020-0150(3)(d)(A), the trial court did not err in denying BP's motion for directed verdict. Additionally, we decline to address BP's challenge to plaintiff's alternative theory of liability under OAR 137-020-0150(4)(e) because, even if it was error to submit that theory of liability to the jury, it would be harmless because the jury separately found BP in violation of OAR 137-020-0150(3)(d)(A).
ORS 646.930 establishes the minimum requirements that a service station must meet if it has a fuel price sign that is visible from the street. BP West Coast Products, LLP v. Dept. of Justice ,
OAR 137-020-0150 was adopted pursuant to Oregon Laws 1985, chapter 751, section 2, and ORS 646.608(1)(u). Oregon Laws 1985, chapter 751, section 2, required the Attorney General to adopt rules to aid in the implementation of former ORS 646.875, renumbered as ORS 646.930 (1985). The other statutory grant of rulemaking authority, ORS 646.608(1)(u), gives the Attorney General broad rulemaking authority under the UTPA to protect consumers from "any other unfair or deceptive conduct in trade or commerce." See BP West Coast Products, LLP ,
The Attorney General has adopted a rule in OAR chapter 137, division 20, declaring unfair or deceptive gasoline price advertising an unlawful trade practice. See OAR 137-020-0160(3) ("Violation of OAR 137-020-0150 and this
In 2010, the Attorney General defined "condition" under OAR 137-020-0150(1)(b) as "any payment method (e.g ., credit), service level (e.g ., full service or mini service), or any other modifying circumstance affecting the price per unit of measurement of motor vehicle fuel from the lowest cash price," to address the numerous complaints that the Department of Justice had received "pertaining to disclosure of full service and added fees to use credit or debit cards." Oregon Bulletin, Volume 50, No. 2, p. 167-69 (February 2011); see also Notice of Proposed Rulemaking, Statement of Need and Fiscal Impact, filed Nov. 9, 2010.
2. Is the Attorney General's definition of condition under OAR 137-020-0150(1)(b) invalid?
In BP's third assignment of error, BP argues that "the trial court erred in denying defendant's motion to dismiss for failure to state a claim," because "[t]he rule's definition of 'condition' is invalid." After we decided BP West Coast Products, LLP , plaintiff filed a supplemental memorandum of authorities, arguing that our decision in that case "rejects defendant's challenge to [the validity of] OAR 137-020-0150(1)(b)." BP concedes, and we agree, that BP West Coast Products, LLP , controls the outcome of BP's third assignment of error and, therefore, we reject BP's third assignment of error.
We do pause, however, to briefly discuss that case to provide some background before turning to BP's second
3. Is a 35-cent debit card fee a condition that must be disclosed on a service station's street sign under OAR 137-020-0150(3)(d)(A) ?
With respect to BP's second assignment of error, BP asserted at trial that "the rule defines a condition [as one] that 'affect[s] the price per unit of measurement of
To determine whether a debit card fee is a "condition" under OAR 137-020-0150, "we consider the text of the rule and its context, including other portions of the rule and related laws, and the rule's adoption history." Brand Energy Services, LLC v. OR-OSHA ,
As we explain below, BP's interpretation of "condition" cannot be reconciled with the Attorney General's definition of "condition" under OAR 137-020-0150(1)(b). The definition of condition under OAR 137-020-0150(1)(b) specifically refers to "credit" as a "payment method" that is regulated by the rule. There is no dispute that a debit card is
Here, the 35-cent fee that BP charged for the use of a debit card "actually [made] a difference" to the price per unit of measurement of motor vehicle fuel from the lowest cash price. Id . If one adds the 35-cent fee to the total cash price of the fuel dispensed, and divides that by the number of gallons dispensed, the result is an increase in the price per unit of measurement of motor vehicle fuel from the lowest cash price. For example, if a customer buys $5.00 of gas in cash and receives two gallons, the cash price per unit is $2.50 per gallon (5 ÷ 2 = 2.5). However, if a customer buys $5.00 of gas and uses a debit card the customer pays $5.35 for two gallons of gas, which results in a debit card price per unit of $2.67 per gallon (5.35 ÷ 2 = 2.675). In that example, the debit card fee increases the price per gallon by 17 cents.
BP asserts that, under that logic, "a pack of gum purchased together with fuel would also affect the 'price per unit of motor fuel' because it increases the total amount charged in the transaction." But a pack of gum is not a "payment method" or a "service level" and, applying the principle of ejusdem generis , it would not qualify as a "modifying
Other portions of the rule and related laws con-firm our conclusion that a debit card fee is a "condition" that the Attorney General intended to be posted on a service station's street sign. As noted above, ORS 646.930 (1)(a) and OAR 137-020-0150(3)(a) allow service stations to post the "lowest cash prices" for motor vehicle fuel on street signs. However, both ORS 646.930(2)(b) and OAR 137-020-0150(3)(d)(A) require that all "conditions" be "clearly" stated on the service station's street sign if the conditions affect the availability of the displayed cash price. The "primary purpose" of the statute and the rule is to "protect consumers" by "requiring the disclosure of 'conditions' to ensure that the price displayed on a service station's street sign matches the price a consumer can expect to pay at the pump." BP West Coast Products, LLP ,
BP asserts, however, that, "[i]f a per-transaction debit-card fee were a 'condition,' * * * the rule effectively would prohibit retailers from charging any flat fee in connection with the sale of fuel." We are not persuaded by that contention; the goal of the rule is to provide notice to the customer of any "conditions" that affect the price per unit of motor vehicle fuel from thе street sign to the point of sale, not to prohibit a flat fee for using a debit card. As noted, OAR 137-020-0150(3)(d)(A) requires that all "conditions" be "clearly" displayed on the service station's street sign. Additionally, OAR 137-020-0150(5)(a)(A) requires that "at least one price sign is visible at or near each dispensing device," and under OAR 137-020-0150(5)(d) and (e), the price sign must also display "[a]ll words or symbols of condition." Finally, OAR 137-020-0150(4)(f) requires that "the dispensing device clearly and conspicuously states all conditions" if "the lowest cash prices are available only under some conditions."
For example, a price sign on top of a dispensing device must provide the "whole unit price of any condition," OAR 137-020-0150(5)(d)(B)(ii)(I), or the "additional price per unit of measurement for any condition in whole cents (e.g. , 'credit price + 3¢/gal' or 'full service additional 10¢/gal')."
BP's interpretation of "condition" also overlooks "the rule's adoption history." Brand Energy Services, LLC ,
In light of the text of the rule and its context, the other portions of the rule and related laws, and the rule's adoption history, we conclude that the 35-cent debit card
4. Does OAR 137-020-0150(4)(e) require a debit card fee to be registered on the dispensing device?
Plaintiff's alternative theory of liability was that BP had violated OAR 137-020-0150(4)(e), which requires retailers of motor vehicle fuel to "[c]harge the customer only the tоtal amount registered on the dispensing device at the selected unit price." With regard to BP's first assignment of error, we agree with plaintiff that any error in denying BP's motion for summary judgment and submitting the theory of liability under OAR 137-020-0150(4)(e) to the jury was harmless because the jury found BP liable for violating both OAR 137-020-0150(4)(e) and OAR 137-020-0150(3)(d)(A). The jury separately found on the verdict form that BP violated OAR 137-020-0150(3)(d)(A) by charging a 35-cent debit card fee and not disclosing that "condition" on its street sign as required by OAR 137-020-0150(3)(d)(A). The jury's finding of liability under that theory is sufficient to independently support the $200 award of statutory damages per class member and the trial court's judgment in favor of plaintiff. See Fossen v. Clackamas County ,
5. Conclusion on BP's challenges to OAR 137-020-0150.
In sum, we reject BP's third assignment of error because our decision in BP West Coast Products, LLP , that the Attorney General had the authority to define "condition" under OAR 137-020-0150(1)(b), is controlling. With respect to BP's second assignment, we conclude that a 35-cent debit card fee is a "condition" under OAR 137-020-0150(1)(b) and, therefore, the trial court did not err in denying BP's motion for directed verdict because there is evidence that BP did not post that "condition" on its street sign as required by OAR 137-020-0150(3)(d)(A). In light of our conclusion regarding BP's second and third assignments, we decline to address BP's first assignment concerning whether it was error to send plaintiff's alternative theory of liability under OAR 137-020-0150(4)(e) to the jury because, even if it was error, it would be harmless.
B. Ascertainable Loss Resulting From UTPA Violation
In a combined argument on BP's fourth and fifth assignments of error, BP relies on Pearson ,
We disagree. As we will describe, the nature of the unlawful trade practice and the ascertainable loss alleged in this case are materially distinguishable from the plaintiffs' misrepresentation claim and theory of economic loss in Pearson . Here, a reasoned analysis of plaintiff's claim leads us to conclude
At the close of evidence, BP moved for directed verdict, arguing that plaintiff had failed to prove the existence of an ascertainable loss, causation, or reliance. In discussing the pending motion for directed verdict, the trial court stated, "I believe at all times I've been clear and my rulings have been consistent in these regards; that this is an illegal transaction case; that the element of reliance is out of the case, need not be proven because it is an illegal transaction case under the UTPA." The trial court denied the motion for directed verdict.
After Pearson was decided, BP made alternative motions for JNOV, new trial, and class decertification based on the issues of causation and reliance. BP contended that the Supreme Court's holding in Pearson was controlling in this case, and that "[p]laintiff failed to make the causation showing that Pearson requires." BP continued, stating that,
"[u]nder Pearson , * * * to prove that the ascertainable loss resulted from dеfendant's failure to disclose the debit card fee as required by the Gasoline Price Advertising Rule, plaintiff was required to show that he and the other classmembers relied on the signage-or lack thereof-in deciding to use a debit card to pay for their gasoline purchases."
Plaintiff responded that "the Pearson decision fully confirms that this court correctly interpreted the Unlawful Trade Practices Act," and argued that Pearson is distinguishable because this case does not involve an allegation that BP "violated ORS 646.608(1)(e), the part of the statute that prohibits misrepresentations of characteristics, benefits, or qualities in the course of a person's business." Plaintiff asserted that reliance does not "apply in this case involving failure to provide legally required information followed by overcharge of a fee not allowed." The court agreed with plaintiff's arguments, in conjunction with "what ha[d] been presented earlier relating to these matters during the prior course of this litigation," and denied the motions.
On appeal, BP assigns error to the trial court's denial of its motion for directed verdict "because plaintiff failed to prove that the alleged UTPA violation caused plaintiff and the class to suffer an ascertainable loss of money or property." BP also assigns error to the court's denial of its post-verdict motion to decertify the class "because individual questions predominate, making a class action not superior." In a combined argument on those assignments, BP contends that plaintiff was required to prove reliance as part of his UTPA claim and, hence, the trial court erred in denying those motions because plaintiff did not, and could not, prove reliance on a class-wide basis. In response, plaintiff contends that "[i]n an illegal charge or certain nondisclosure cases the charge itself is illegal without reference to the difference in value" and "[t]he 'ascertainable loss' is the illegal overcharge and causation occurs when it is paid." Plaintiff asserts that, in that kind of case, reliance is not required.
"We review the denial of a motion for directed verdict * * * to determine whether the moving party is entitled to a verdict as a matter of law." Schmidt v. Noonkester ,
A class action for statutory damages may be maintained undеr the UTPA "only if the plaintiffs in the action establish that the members have sustained an ascertainable loss of money or property as a result of a reckless or knowing use or employment by the defendant of a method, act or practice declared unlawful by ORS 646.608." ORS 646.638 (8)(a) (emphasis added). That emphasized phrase, "as a result of," requires that the "plaintiff must suffer a loss of money or property that was caused by the unlawful trade practice." Pearson ,
In Pearson , the class pursued a claim under ORS 646.608(1)(e),
As to the plaintiffs' alternative theory of economic loss, the plaintiffs sought a refund of their purchase price as a remedy "based on their and the class members' alleged failure to receive what defendant's representation led them
In this case, plaintiff's complaint alleged "that defendant violated gasoline price disclosure rules and illegally assessed and collected debit card fees in violation of the rules." More specifically, according to the complaint, BP engaged "in a prohibited transaction by charging gasoline purchase debit fees without first properly disclosing the fees as required by OAR 137-020-0150" and in violation of ORS 646.608(1)(u). As required for their UTPA class action under ORS 646.638(8), plaintiffs asserted:
"Defendants assessed plaintiff and the class debit fees in reckless disregard of the requirements of ORS 646.608 (1)(u) and/or with knowledge that their fee assessments violated ORS 646.608(1)(u) and as a result, plaintiff and members of the class suffered ascertainable losses, in that they paid fees that defendants were not legally entitled to collect."
In other words, plaintiff's theory of ascertainable loss was that BP illegally charged class members an unlawful 35-cent debit card fee and, therefore, "[p]laintiff and the class are entitled to recover statutory damages of $200 per class member." See ORS 646.638(1) and (8)(a) (class members can recover "actual damages or statutory damages of $200, whichever is greater"). Thus, plaintiff claimed that the illegal overcharge of 35-cents is the ascertainable loss.
Unlike the plaintiffs in Pearson , plaintiff did not allege that BP made misrepresentations or "half-truths" about the quality or characteristics of the gasoline in violation of ORS 646.608(1)(e) or seek a refund of the purchase
In an illegal charge case such as this one, whether a customer relied on the nondisclosure of a fee does not matter; what matters is whether the fee is disclosed in the particular way that the law requires. The UTPA prohibits businesses from charging customers other types of fees when they are not disclosed in the particular way that the law requires. For example, lessors are required to disclose any late payment, default, pickup and reinstatement fees in the lease-purchase agreement. ORS 646.608(1)(nn) ; ORS 646A.124 ; ORS 646A.126(7). Likewise, late fees assessed by cable service providers are subject to several requirements and limitations (amount, disclosure, and notice provisions). ORS 646.608(1)(rr) ; ORS 646A.800(2) to (4). Similarly, debt management service providers are allowed to charge certain types of fees only after making required disclosures. ORS 646.608(1)(kkk) ; ORS 697.692 ; ORS 697.707. If any of those businesses were to violate any of the terms under which they may assess those fees, the assessment would result in an illegal charge. The customer's actual awareness or knowledge of the illegality would be irrelevant. The particular violation of the UTPA alleged in this case-that BP illegally charged class members an unlawful 35-cent debit card fee because it did not disclose the fee as required by OAR 137-020-0150 -does not turn on the customer's knowledge or reliance.
Unlike in Pearson ,
In sum, on the issue of causation, BP was not entitled to a verdict as a matter of law and, therefore, the trial court did not err in denying its motion for directed verdict. Likewise, the trial court did not err in denying BP's motion to decertify the class on BP's related theory that, because reliance was an element of plaintiff's UTPA claim, reliance could not be proved on a class-wide basis.
C. Due Process Challenge to Statutory Damages
In BP's tenth assignment of error, BP argues that the "trial court erred in denying defendant's alternative motions to strike the statutory damages or to decertify the class because ORS 646.638(8)(a), as applied, violates due process." Both motions challenged the statutory damages awarded by the jury in this case as unconstitutionally excessive, in violation of the federal Due Process Clause. As we will explain, we conclude that the trial court did not err in denying either motion.
At the hearing on its motions, the parties disputed two primary issues: (1) the procedural timeliness of BP's post-verdict motions; and (2) which of two fedеral due process standards applied to BP's challenge, and whether the statutory damages were excessive under the appropriate standard.
On timeliness, plaintiff argued that "BP has waived the due process arguments it now seeks to belatedly raise two years into the litigation and months after the jury
On the merits of its excessiveness challenge before the trial court, BP relied on the standard used by the Supreme Court in BMW of North America, Inc. v. Gore ,
In response, plaintiff argued that the correct test to determine whether statutory
The trial court denied BP's motion to strike on two grounds. First, the trial court determined that the motion was untimely and, therefore, BP waived its challenge to the statutory damages. The trial court further ruled, in the alternative, that BP's challenge failed on the merits.
"I make this finding that this was not * * * raised as an affirmative defense in any responsive pleading.
"It was not proposed as a jury instruction as to the proper standards for awarding statutory damages. There was no proposed jury instruction. And nothing proposed in the jury verdict relating to this.
"* * * [T]his matter was not put before the court at the time plaintiff rested as a basis for a motion for directed verdict, there was no argument that there was insufficient evidence to support a statutory damage award of $200.
"When the verdict was received, there was no objection to the jury verdict because it was somehow constitutionally defective or that the jury could not award statutory damages as a matter of law.
"* * * * *
"* * * [O]n this motion to strike, it's not timely. There is a waiver. Based on what's presented, I'm not persuaded that it is meritorious in any other way."13
On BP's motion to decertify the class, the court dis-agreed with BP's argument that "the class should be decertified because it is not superior to other available methods for the fair and efficient adjudication of the controversy." The court concluded that BP's motion to decertify the class was "not * * * meritorious" for "the reasons set forth in plaintiff's argument in opposition" to BP's motion to decertify, i.e. , because BP failed to raise that argument in any of its prior motions to decertify the class and because "[t]he resulting size of aggregate class action damages is not a factor for certification mentioned in ORCP 32."
On appeal, BP reprises its argument that its post-verdict motion to strike the statutory damage award or decertify the class was timely. In response, plaintiff contends that BP "waived any objections to a statutory damage award because it never moved for directed verdict on this ground, never argued that there was insufficient evidence to support a statutory damage award of $200, and never objected to the verdict on the basis now argued."
On the merits, BP contends that "[t]he trial court erred in denying defendant's alternative motions to strike the statutory damages or to decertify the class because ORS 646.638(8)(a), as applied, violates due process."
We agree with the trial court that BP's post-verdict motion to strike "the request for statutory damages as unconstitutionally excessive in this case" was not raised in a timely manner. As nоted, BP relied on Parrott for the proposition that "a party cannot challenge a verdict for punitive damages as excessive until after the jury renders its verdict," but this is not a challenge to an award of punitive damages, the amount of which cannot be ascertained until after a jury renders a verdict.
Moreover, the factual assertions on which BP relied for its due process challenge under the framework set out in Gore that related to the reprehensibility of its conduct-i.e. , that its conduct was not malicious or intentional, BP did not take advantage of financially vulnerable parties for its own gain, BP received almost no financial benefit, there was no evidence of any actual or threatened government enforcement, there was no proof that BP had destroyed data or that BP had breached a duty to preserve data, and no one was put
BP compounded its timeliness problem by not raising the issue after the jury returned its verdict, and before the jury was discharged. BP did not file its motion to strike until nearly three months after the jury had returned its verdict and had been dismissed. BP's motion, however, was not based on anything that transpired after the verdict. Instead, BP relied on the ratio between the out-of-pocket loss suffered per plaintiff (the 35-cent debit fee) and the fixed amount of statutory damages awarded per plaintiff ($200). As already discussed, BP knew from the outset of the case-i.e. , from the filing of plaintiff's complaint-that any award of statutory damages would reflect that ratio. Additionally, evidence about the degree of reprehensibility of BP's conduct was a matter of record before the jury returned its verdict.
The timing of BP's motion to strike the statutory damages award thus ran afoul of "the principle that a faulty verdict cannot be later attacked if the defect was known at the time the verdict was returned and no objection was made," Smith v. J.C. Penney Co. ,
In short, BP could have raised its constitutional challenge to the statutory damages either through a motion for directed verdict or a motion to strike the statutory damages made before the jury's discharge, or both. BP, however, did neither. Instead, it waited until the jury was discharged and then, months later, raised its objection for the first time. As a result, BP's motion to strike the statutory damages was untimely. We agree with plaintiff that BP's delay prejudiced plaintiff because he "made the decision not to seek actual damages and only seek UPTA statutory damages," a decision that was impossible to alter once the verdict had been returned and the jury had been discharged. Likewise, if BP had argued that the standard articulated in Gore applied before the jury returned its verdict, plaintiff could "have presented different evidence in the statutory damage case if [the] court had been given the opportunity to instruct the parties and jury that a higher standard for statutory damages applied." For those reasons, the trial court did not err
Finally, because BP did not challenge the statutory damages award through a timely motion to strike, we also conclude that the trial court did not abuse its discretion in denying BP's post-verdict motion seeking to decertify the class on the same ground. As earlier described, BP also challenged the excessiveness of the statutory damages award through an alternative post-verdict motion. Specifically, it renewed its previous motions to decertify the class, but it did so on the newly advanced theory that a class action cannot be superior when the resulting statutory damages award is unconstitutionally excessive. We question whether BP could challenge the statutory damages award through a motion to decertify when, as here, its motion to strike-which was the procedurally proper way to directly challenge the statutory damages-was not timely and was denied on that ground. In any event, given the untimeliness of BP's direct challenge to the statutory damages, we conclude that the trial court did not abuse its discretion in denying BP's post-verdict challenge to the class certification on the ground that the statutory damages award was excessive. See Pearson ,
III. CONCLUSION
In sum, we reject BP's third assignment of error because our deсision in BP West Coast Products, LLP , held that the Attorney General had the authority to define "condition" under OAR 137-020-0150(1)(b). With respect to BP's
Affirmed.
Notes
The UTPA is codified at ORS 646.605 to 646.656. The Attorney General adopted the Gasoline Price Advertising Rule in OAR chapter 137, division 20, declaring unfair or deceptive gasoline price advertising an unlawful trade practice pursuant to ORS 646.608(1)(u). The specific provisions under which plaintiff brought this class action are cited and discussed later in this opinion.
BP's sixth assignment of error is not preserved and, therefore, we decline to address it. We reject BP's seventh, eighth, and ninth assignments of error without discussion.
Under ORS 646.638(1) and (8)(a), class members can recover $200 in statutory damages "if the plaintiffs in the action establish that the members have sustained an ascertainable loss of money or property as a result of a reckless or knowing use or employment by the defendant of a method, act or practice declared unlawful by ORS 646.608."
Although the price per unit may vary depending on how much motor vehicle fuel the customer purchases, the posting serves the purpose of giving the customer notice of the total charge because, as we explain below, the rule permits a service station either to display the whole unit price of any condition or the additional price per unit of measurement for any condition.
As discussed above, in BP West Coast Products, LLP , we concluded that "[c]harging a consumer more than the displayed price if a consumer uses a credit card is an example of a modifying circumstance that affects the availability of the lowest cash price."
See also OAR 137-020-0150(4)(b) (retailers must "[e]nsure that computing-type dispensing devices automatically compute the full sales price"); OAR 137 020-0150(4)(e) (retailers must "[c]harge the customer only the total amount registered on the dispensing device").
See also Ainslie v. First Interstate Bank ,
In BP's fourth assignment of error, BP contends that "[t]he trial court erred in denying defendant's motion for directed verdict, because plaintiff failed to prove that the alleged UTPA violation caused plaintiff and the class to suffer an ascertainable loss of money or property." In BP's fifth assignment of error, BP contends that "[t]he trial court erred in certifying the class and in refusing to decertify the class, because individual questions predominate, making a class action not superior." The procedural history pertinent to those two assignments is set out in more detail below.
ORS 646.608(1)(e) provides, in part, that it is an unlawful trade practice if a person "[r]epresents that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities or qualities that the real estate, goods or services do not have."
Significantly, contrary to its own position, BP did object to, and move to strike, plaintiff's request for punitive damages during the pleading stage as unconstitutional, and again by way of a motion for directed verdict, arguing that any award of punitive damages would violate due process. In BP's response to plaintiff's motion to amend his complaint to include a claim for punitive damages, BP contended that "each plaintiff's actual damages for each alleged violation of the regulation could at most be 35-cents," and because "the statutory damage award would compensate each plaintiff in an amount approximately 571 times his or her actual damages * * * an additional punitive damages award would be duplicative and improper."
BP relied on the following facts to argue that BP's conduct was not reprehensible:
"Plaintiffs did not allege, and the jury did not find, that [BP] intendеd to harm anyone, or that it ignored a risk of physical injury or even severe economic injury * * *.
"* * * There has been no evidence as to how many customers actually visited an ARCO station for the first time and would not have had actual knowledge of the debit fee before choosing to pay for gasoline using a debit card.
"There was no evidence of any actual or threatened government enforcement during the entire period of time the fee was charged at ARCO stations. This is not a situation in which [BP] should have known of a possible violation because a court or the Oregon Department of Justice raised a red flag.
"* * * * *
"* * * [T]here is no evidence of any malicious intent to gouge customers with a hidden fee, or take advantage of financially vulnerable parties for [BP's] own gain * * *.
"The evidence further shows that charging the debit fee was part of [BP's] efforts to offer to sell gasoline at a price lower than its competitors by giving its customers more options * * *.
"* * * * *
"[BP] derived almost no financial benefit from the debit card service fee * * *.
"* * * * *
"The closest plaintiff's counsel came to alleging anything approaching intentional misconduct was in the argument that [BP] had failed to preserve evidence * * *."
See also Sony BMG Music Entertainment v. Tenenbaum ,
Just before its ruling on BP's motion to strike, the court summarized the procedural history of the case. The court stated that BP's due process argument
"was not raised in any responsive pleading, such as an affirmative defense; secondly, it was not raised in jury instructions proposed by defendant; thirdly, * * * there was no directed verdict based upon this that was presented * * * [a]nd that there was, fourthly, no objection at the time the jury verdict was returned and before the jury was discharged."
BP agreed that that procedural summary was correct.
ORS 646.638(1) allows the recovery of "actual damages or statutory damages of $200, whichever is greater," and those statutory damages "may be recovered on behalf of class members" under ORS 646.638(8)(a) for a "reckless or knowing" violation.
Because we conclude that BP's motion to strike was not timely, we do not address BP's arguments concerning the application of Gore and Williams to statutory damages.