[00:00:01] Speaker 04:
Good morning, Your Honors.

[00:00:02] Speaker 04:
May it please the Court, Che Corrington, on behalf of Plaintiff Appellant Shana Montes.

[00:00:07] Speaker 04:
I would like to reserve three minutes of my time for rebuttal, and I'll keep track of time.

[00:00:13] Speaker 01:
Okay, great.

[00:00:15] Speaker 04:
We are here on the issue of whether the injury element of the Washington CPA claim can be established in a false discount advertising case.

[00:00:28] Speaker 04:
Ms.

[00:00:28] Speaker 04:
Montes has alleged three injury theories, which she refers to in her briefs as the purchase price theory, the benefit of the bargain theory, and the price premium theory.

[00:00:40] Speaker 04:
Before I go into these three injury theories, I would like to remind the court that Ms.

[00:00:44] Speaker 04:
Montes has filed a motion to certify this question to the Washington Supreme Court.

[00:00:49] Speaker 04:
That's stock at four, and that motion was referred to this panel to be decided.

[00:00:54] Speaker 04:
We still believe that the Washington Supreme Court would be in the best position to answer this question, given that this issue carries significant public policy implications that would affect all Washington consumers.

[00:01:09] Speaker 04:
Unless the court has any questions about the motion to certify, I'll move on to the three injury theories, starting with the purchase price theory.

[00:01:21] Speaker 04:
Under the purchase price theory, Ms.

[00:01:23] Speaker 04:
Montez alleges that she suffered an injury in the money that she spent purchasing a product from Aeropostale that she would not have bought but for Aeropostale's misrepresentations.

[00:01:35] Speaker 04:
This injury theory was recognized already by the Washington Court of Appeals and Williams v. Lifestyle Lift Holdings.

[00:01:44] Speaker 04:
because the Washington Court of Appeals has... What was the misrepresentation in Williams?

[00:01:51] Speaker 04:
In Williams, it was some deceptive marketing regarding a surgical procedure being quick and painless.

[00:02:00] Speaker 02:
I mean, it's different if there's a misrepresentation about the quality or character of the product you're getting.

[00:02:08] Speaker 02:
Then I understand the argument, but here the misrepresentation relates to price, but she knows the price she paid for it and decided that the product was something she wanted at that price, and there isn't any feature of it

[00:02:28] Speaker 02:
as in Williams, that affects price because the falsity is price.

[00:02:35] Speaker 02:
That's what I'm having trouble with.

[00:02:37] Speaker 04:
Well, Your Honor, this actually was the exact reason why this court and Clark v. Eddie Bauer ultimately certified the question to the Oregon Supreme Court.

[00:02:46] Speaker 02:
But Oregon had a specific statute that covered this.

[00:02:49] Speaker 02:
Does Washington have a statute that is comparable to the Oregon one?

[00:02:54] Speaker 04:
So the CPA, the Washington CPA, has just a catch-all, and the purpose— Right.

[00:03:00] Speaker 02:
It doesn't have a specific price history thing like in Oregon.

[00:03:04] Speaker 04:
No, it covers all forms of deceptive advertising.

[00:03:08] Speaker 04:
In fact, at the time that states were adopting one of the sort of mini FTC acts as their own state consumer protections, there were three versions, and Washington chose the broad one.

[00:03:21] Speaker 02:
Is there any federal appellate or state Supreme Court authority other than Oregon with a special statute that has recognized this kind of a claim?

[00:03:35] Speaker 02:
Oh, under the purchase price theory?

[00:03:37] Speaker 04:
Correct.

[00:03:39] Speaker 04:
Well, California has, but they also do have a list.

[00:03:44] Speaker 04:
Well, actually, California has three consumer protection statutes, and in Hanojos, this court looked at the UCL and the FAL, and they do not have a list of prescribed practices.

[00:03:57] Speaker 04:
It is a catch-all.

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the same as Washington, and this court interpreted the statutory language of lost money or property to include the circumstances.

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And after Hinojos was decided, the California Court of Appeals in Hanson confirmed that the Ninth Circuit was correct in interpreting and how it interpreted California law.

[00:04:24] Speaker 04:
We do believe, though, that because Williams, of course, if this court does have a belief that the type of misrepresentation does affect the claim, then we do believe that we are in a very similar situation as to the Clark v. Eddie Bauer case.

[00:04:43] Speaker 04:
If you read that decision, the Oregon Supreme Court does not really emphasize that

[00:04:48] Speaker 04:
It's because there's some very specific practice any unlawful conduct that would be there would be included So but we would think that if this court has that distinction and thinks that Williams is not directly on point Then we would encourage the court to do as it did in Clark and certify this to the Washington Supreme Court however, if this issue is not a

[00:05:13] Speaker 04:
that distinguishable then we believe that the Williams decision decides the case be decides on this purchase price theory because as this court has held a higher standard is applied when a

[00:05:29] Speaker 04:
state court appellate decision is on point, and in rhyme in this court said that the federal district courts must follow the intermediary state appellate decisions unless there is convincing evidence that the Washington or the state supreme court would decide the issue differently.

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And Aeropostale does not cite

[00:05:53] Speaker 04:
any evidence, let alone convincing evidence that the Washington Supreme Court would decide this issue differently.

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So we believe that this analysis would be straightforward if the court believes that there is no distinction between the types of misrepresentations.

[00:06:12] Speaker 04:
I would like to

[00:06:14] Speaker 04:
Move on to the price premium theory.

[00:06:17] Speaker 04:
We believe that this is, I want to switch onto this one.

[00:06:20] Speaker 04:
It's the third injury theory in the briefing, but I would like to focus on this one because this is the one injury theory that Aeropostale does not dispute would constitute

[00:06:30] Speaker 04:
an injury under the CPA.

[00:06:33] Speaker 04:
The price premium theory focuses on how Aeropostale's false advertising allowed it to increase consumer demand, which in turn allowed it to charge higher prices to everyone, absent these misrepresentations.

[00:06:48] Speaker 04:
And that extra amount that Aeropostale was able to charge is the price premium and is the damages.

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This type of damages is not controversial.

[00:06:59] Speaker 04:
It's just out-of-pocket damages, and Aeropostale does not dispute that this would be an injury.

[00:07:06] Speaker 04:
Rather, Aeropostale is arguing on a motion to dismiss that it's impossible for a plaintiff to present expert evidence to actually show this price premium.

[00:07:21] Speaker 04:
But that's simply not true.

[00:07:24] Speaker 04:
Our law firm has, in a previous false discounting case, produced this type of expert evidence.

[00:07:30] Speaker 04:
That was in Brazil v. Dell.

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And we were able to use that expert evidence to successfully certify a class.

[00:07:36] Speaker 04:
So any notion that this type of expert evidence is impossible

[00:07:41] Speaker 04:
is simply unfounded.

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Beyond that, this court has recognized the price premium theory.

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In Brasino, this court affirmed certification of 11 state classes based on what the court referred to as the plaintiff's two well-established damage models that are able to calculate the price premium attributable to their theory.

[00:08:05] Speaker 04:
Additionally, the

[00:08:11] Speaker 04:
courts have also interpreted or has applied the price premium theory to a CPA claim.

[00:08:18] Speaker 02:
From an Iqbal point of view, are there facts in the complaint that

[00:08:22] Speaker 02:
create a plausible inference that there was a price premium, or is it just sort of conclusively asserted that there was a price premium?

[00:08:30] Speaker 04:
We certainly believe that there are, but also that was not challenged below in terms of whether or not it was plausible.

[00:08:37] Speaker 04:
Of course, if that had been challenged, we certainly would have addressed it, and ultimately if this court

[00:08:44] Speaker 04:
believes that for whatever reason the allegations are not sufficient enough, then we would ask the court to grant leave to amend so that we could flesh out however the court believed was necessary to do so.

[00:08:57] Speaker 04:
I will say, however, that the

[00:09:00] Speaker 04:
recent case Fitzgerald versus shade store out of the Western District of Washington by Judge Martinez in July It's a false discount case and judge Martinez.

[00:09:11] Speaker 04:
He first he recognized the the purchase price theory and then he also went on to look at the

[00:09:17] Speaker 04:
plaintiff's allegations about price premium and he said that those were sufficiently alleged and the allegations in that plaintiff's complaint mirror ours.

[00:09:28] Speaker 04:
So we don't believe that there would be an issue in terms of plausibility for purpose of a motion to dismiss.

[00:09:40] Speaker 04:
And the last injury theory I would like to get to is the benefit of the bargain theory.

[00:09:44] Speaker 04:
Under this theory, Ms.

[00:09:46] Speaker 04:
Montez's injury is the loss of not receiving the value of the bargain that was represented to her by Aeropostale.

[00:09:55] Speaker 04:
And we believe that the benefit of the bargain rule has been used by courts for over a century, and this theory tracks that.

[00:10:05] Speaker 04:
And under the rule, the loss is measured by the difference between the actual value of the product at the time of purchase and what its value is represented to be.

[00:10:17] Speaker 04:
And we believe that.

[00:10:19] Speaker 00:
Isn't that just a damage theory?

[00:10:21] Speaker 00:
The question the Supreme Court said distinguished injury from damages in the context of the Act, and it struck me that your benefit of the bargain theory was just a damages theory and not an independent injury theory.

[00:10:36] Speaker 04:
Well, injuries can certainly translate into damages.

[00:10:38] Speaker 04:
And I guess, actually, it would be better to work backwards.

[00:10:41] Speaker 04:
An actual damage could almost certainly constitute an injury and satisfy that.

[00:10:47] Speaker 04:
So we don't believe that that would necessarily preclude it, that you'd have an injury that has to be completely divorced from a damages theory, if that makes sense.

[00:11:00] Speaker 04:
But under this theory, we do believe that there should only really be about two questions that the court needs to answer before Ms.

[00:11:10] Speaker 04:
Montes can move forward with her claim.

[00:11:12] Speaker 04:
And the first is whether the benefit of the bargain rule applies to CPA claims.

[00:11:18] Speaker 04:
And the Washington Supreme Court said that yes, they do in Mason v. Mortgage America.

[00:11:24] Speaker 04:
And then the second question is whether the benefit of the bargain rule applies to misrepresentations about the value of an item.

[00:11:32] Speaker 04:
And the answer to that is also yes.

[00:11:38] Speaker 04:
First, Washington courts have never excluded a type of misrepresentation from the benefit of the bargain rule.

[00:11:44] Speaker 04:
And in fact, the Washington Supreme Court and

[00:11:48] Speaker 04:
said, quote, the constant tendency of the courts is to find some way in which damages can be awarded where a wrong has been done.

[00:11:54] Speaker 04:
And there's no dispute here that a wrong has been done.

[00:11:57] Speaker 04:
Erebusol actually, for purposes of the motion to dismiss, concedes that we've alleged a deceptive act.

[00:12:05] Speaker 04:
So we believe that there's no reason why misrepresentations about a value of an item would be excluded when no misrepresentation has been excluded before.

[00:12:16] Speaker 04:
I notice that I am low on time, so I would like to reserve the remainder for rebuttal.

[00:12:40] Speaker 03:
Morning, Your Honors.

[00:12:42] Speaker 03:
May it please the Court, Michael Dominic Muti here from Benesh for Aeropostale.

[00:12:47] Speaker 03:
The Court should affirm, simply put, the District Court got it right.

[00:12:51] Speaker 03:
The allegations here do not amount to an injury to business or property.

[00:12:58] Speaker 03:
Here, Montes is a consumer who admits that she's been a regular shopper at Aeropostale for years and that she's made numerous purchases, both online and in stores.

[00:13:11] Speaker 03:
She saw a pair of $6 pants, chose to order them, and received exactly what she had ordered.

[00:13:18] Speaker 03:
That's a straightforward transaction.

[00:13:21] Speaker 03:
It is not an injury.

[00:13:23] Speaker 03:
All of plaintiff's theories contending otherwise would yield a windfall.

[00:13:28] Speaker 03:
The plaintiff would get to keep the item she ordered and received.

[00:13:31] Speaker 03:
She'd also get a full refund or maybe some other unspecified measure of damages.

[00:13:37] Speaker 02:
And she'd do all of that without alleging... Both the California and Oregon courts have recognized the kind of theory he's asserting.

[00:13:46] Speaker 02:
Why isn't that kind of a theory consonant with Washington law in your opinion?

[00:13:52] Speaker 03:
I'll take California first.

[00:13:54] Speaker 03:
As courts across the country, including this court in Lee Pink, recognize the UCL is sui generis and cannot inform other states' consumer protection laws.

[00:14:06] Speaker 03:
As for Oregon, as you noted, Judge Collins, that state has a robust regulatory apparatus identifying which representations can and cannot be made about a price.

[00:14:20] Speaker 03:
And one of the reasons that Clark gave for recognizing the claim there was that it did not believe that the legislature would have enacted those regulations and not subjected them to enforcement.

[00:14:35] Speaker 03:
More broadly, the theories that plaintiffs put forward here, they do violence to the CPA's text.

[00:14:45] Speaker 03:
The CPA requires that a plaintiff be injured in her business or property by a violation.

[00:14:52] Speaker 03:
That's code 198690.

[00:14:55] Speaker 03:
And three important conclusions flow from this text.

[00:15:00] Speaker 02:
First.

[00:15:01] Speaker 02:
California has the same text in the UCL, injury to business or property.

[00:15:07] Speaker 03:
I think it's money or property there.

[00:15:08] Speaker 02:
Or money or property.

[00:15:10] Speaker 02:
But isn't that comparable?

[00:15:13] Speaker 03:
The UCL has a different apparatus.

[00:15:18] Speaker 03:
The UCL offers only injunctive relief as opposed to damages.

[00:15:24] Speaker 01:
May I ask you, so our court also in Henoso recognized this type of damage.

[00:15:33] Speaker 01:
I mean, immediately it was under California law, but the opinion itself goes on and on about why this actually constitutes an injury.

[00:15:44] Speaker 01:
How do you distinguish Hinojo?

[00:15:47] Speaker 03:
So Hinojo says it in note five that for the UCL, the causation element and the injury element are functionally equivalent.

[00:15:58] Speaker 03:
They're basically merged.

[00:15:59] Speaker 03:
That's different from Washington.

[00:16:01] Speaker 03:
Washington and Hangman Ridge made clear that the CPA's five elements are independent of each other.

[00:16:08] Speaker 03:
If we're looking to California and UCL analogies,

[00:16:13] Speaker 03:
Chowning provides the better analogy here.

[00:16:17] Speaker 03:
Hinojo's concerns standing.

[00:16:19] Speaker 03:
Chowning made clear that if a plaintiff is to seek monetary compensation under the UCL, their restitution, here it would be damages, the plaintiff has to allege and prove that the value of what the plaintiff received was less than what she paid.

[00:16:38] Speaker 03:
Montes alleges nothing of the sort.

[00:16:41] Speaker 03:
She bought a $6 pair of pants.

[00:16:43] Speaker 03:
She received a $6 pair of pants.

[00:16:46] Speaker 03:
She does not say that they were defective in any way, that she was disappointed in their workmanship, materials, fit, style, anything.

[00:16:55] Speaker 03:
She got what she paid for, and that is not an injury.

[00:16:59] Speaker 03:
The CPA makes clear that injury causation is required, not transaction causation.

[00:17:08] Speaker 01:
Washington Supreme Court and Mason interpreted Hangman Ridge.

[00:17:15] Speaker 01:
It says the injury element will be met if the consumer's property interest or money is diminished because of the unlawful conduct even if the expenses caused by the statutory violation are minimal.

[00:17:32] Speaker 01:
And she's saying she wouldn't have bought these pants if she didn't think she was getting

[00:17:38] Speaker 01:
a discounted pair of pants is something of greater value than what she thought she was purchasing.

[00:17:43] Speaker 03:
Your Honor, that's transaction causation as opposed to injury causation.

[00:17:50] Speaker 03:
And the text of the Washington Consumer Protection Act makes clear that you need an injury caused by the violation, the alleged violation, not just a transaction.

[00:18:00] Speaker 03:
to illustrate in a different context.

[00:18:03] Speaker 03:
Suppose you wire money to a stockbroker in order for the stockbroker to purchase shares of company A, and you do that based upon the stockbroker's representations about company A. Three months later, you check your account, you find out, oh no, he didn't order company A, he bought shares of company B.

[00:18:25] Speaker 03:
but you check the markets and you find out company B shares are up 20%, company A shares are down 20%.

[00:18:30] Speaker 03:
The misrepresentation caused a transaction.

[00:18:33] Speaker 03:
It did not cause an injury.

[00:18:36] Speaker 03:
And that shows that in order to state a CPA claim, the text of the CPA requires injury causation, not just transaction causation.

[00:18:46] Speaker 03:
And all Montes offers here is injury, I'm sorry, is transaction causation.

[00:18:52] Speaker 03:
And you mentioned Mason.

[00:18:54] Speaker 03:
It's notable there that the court held that the fact of loss has to be established with sufficient certainty to provide a reasonable basis for estimating the loss.

[00:19:08] Speaker 03:
And plaintiffs here have said that our arguments are all based on damages, not injury.

[00:19:14] Speaker 03:
It's true that some authorities recognize that the CPA will entertain non-monetary harms, like harms to reputation or goodwill.

[00:19:23] Speaker 03:
This case, though, it addresses only alleged economic harms.

[00:19:28] Speaker 03:
And for alleged economic harms, damages and injury are two sides of the same coin.

[00:19:33] Speaker 03:
If the damages are zero, then there is no injury.

[00:19:37] Speaker 03:
And Montes hasn't offered anything to suggest that she has suffered any damage, that she is objectively worse off because of the purchase than she would have been otherwise.

[00:19:48] Speaker 03:
Instead, all she alleges is that she has engaged in the transaction.

[00:19:53] Speaker 03:
Entertaining that theory that any consumer who enters into a transaction and is later disappointed can sue to get a full refund of the cost of that transaction, that would open floodgates.

[00:20:10] Speaker 03:
It would enable a consumer to contend, well,

[00:20:14] Speaker 03:
Kind of disappointed by this cologne I bought.

[00:20:17] Speaker 03:
It doesn't smell as good as I thought it would.

[00:20:20] Speaker 03:
And I bought it because there were attractive models used in the ads.

[00:20:24] Speaker 03:
I spray it.

[00:20:25] Speaker 03:
I still look like this.

[00:20:27] Speaker 03:
I don't really like it that much.

[00:20:28] Speaker 03:
CPA violation.

[00:20:31] Speaker 03:
That's too broad.

[00:20:33] Speaker 03:
That's not tying an actual injury, an injury, to the alleged violation.

[00:20:38] Speaker 03:
That's what she needs to do here.

[00:20:41] Speaker 03:
Now, all of Planev's theories here are damages theories.

[00:20:45] Speaker 03:
Her purchase price theory is an out-of-pocket damages theory by a different name.

[00:20:50] Speaker 03:
What she's really seeking is a full refund under that theory.

[00:20:58] Speaker 03:
There are a couple of problems with that.

[00:21:00] Speaker 03:
First, it would result in a windfall.

[00:21:04] Speaker 03:
It ignores the value received.

[00:21:07] Speaker 03:
Second, it's atextual.

[00:21:09] Speaker 03:
As noted previously,

[00:21:10] Speaker 03:
The CPA requires that the alleged violation cause injury, not just that it cause a transaction.

[00:21:18] Speaker 03:
And as noted a moment ago, buyer's remorse is not an injury.

[00:21:23] Speaker 03:
It's a subjective harm.

[00:21:25] Speaker 03:
And Washington authorities make clear that the CPA does not embrace those types of subjective harms.

[00:21:35] Speaker 02:
Turning to... Should we certify this to the Washington Supreme Court, because we did that with Oregon?

[00:21:43] Speaker 03:
Your Honor, we don't believe that's necessary.

[00:21:46] Speaker 03:
Courts across the country have addressed this issue under state statutes as a matter of law, and have done so without certifying.

[00:21:54] Speaker 03:
The First Circuit did it in Shawless.

[00:21:57] Speaker 03:
The Sixth, Seventh, and Eighth Circuits have also decided the same issue.

[00:22:01] Speaker 02:
And in each case- And we did it in Hinozo and came out the other way.

[00:22:07] Speaker 03:
I'm sorry?

[00:22:08] Speaker 01:
I think it was Eddie Bauer.

[00:22:13] Speaker 03:
In Clark.

[00:22:15] Speaker 01:
Clark.

[00:22:17] Speaker 03:
Yes, Your Honor, you did.

[00:22:18] Speaker 03:
I don't believe it's necessary here.

[00:22:25] Speaker 03:
We would, of course, not to be glib here, but we would, of course, prefer that you certify it than decide against us.

[00:22:31] Speaker 03:
But we don't think that certification is necessary here.

[00:22:34] Speaker 03:
And we believe it's especially inappropriate here because plaintiffs began in state court, dismissed their case, came to federal court, lost, and now they're trying to go back to state court.

[00:22:47] Speaker 03:
That kind of forum shopping is discouraged.

[00:22:51] Speaker 03:
This court's jurisprudence discourages it.

[00:22:55] Speaker 03:
as noted in our opposition to their motion to certify.

[00:23:00] Speaker 03:
If I could address the price premium theory, they say that we don't dispute that that creates an injury.

[00:23:07] Speaker 03:
That's wrong.

[00:23:08] Speaker 03:
We do dispute that their price premium theory creates an injury.

[00:23:13] Speaker 03:
Their theory is that anything that shifts demand

[00:23:19] Speaker 03:
and therefore allows a retailer or any seller to sell more or to sell at a higher price creates an injury.

[00:23:27] Speaker 03:
We disagree with that.

[00:23:29] Speaker 03:
All of the cases that they cite are cases that

[00:23:34] Speaker 03:
address an objective disparity between what was promised and what was delivered.

[00:23:38] Speaker 02:
Why isn't that a viable theory?

[00:23:42] Speaker 02:
If in the alternative world where you didn't make false representations about price history, the actual market price would have been $5, but by making price history

[00:23:59] Speaker 02:
false claims about what the past or regular price has been, the price goes up to $6.

[00:24:09] Speaker 02:
Why isn't that an injury?

[00:24:13] Speaker 02:
Forcible to the falsehood.

[00:24:15] Speaker 03:
The concept that anything that shifts the demand for something can create an injury.

[00:24:23] Speaker 02:
No, but I just gave you a specific but for causation hypothetical.

[00:24:27] Speaker 02:
Is the answer in that hypothetical that that's not an economic injury for purposes of the Washington statutes?

[00:24:36] Speaker 03:
Correct, Your Honor.

[00:24:37] Speaker 03:
And why?

[00:24:38] Speaker 03:
In order for there to be an economic injury, there has to be an objective disparity between what was promised and what was delivered.

[00:24:47] Speaker 03:
The transaction has to leave the consumer.

[00:24:50] Speaker 02:
That would be a benefit of the bargain theory, which is one of their other theories, but their theory is that the falsehood changes the price.

[00:24:59] Speaker 01:
The falsehood inflates the price.

[00:25:02] Speaker 03:
That theory proves too much.

[00:25:04] Speaker 03:
It would allow using attractive ads in a model, using bright colored packages, any of those things that a company may do.

[00:25:14] Speaker 03:
Those are not falsehoods.

[00:25:17] Speaker 03:
They could be alleged to be unfair under the Washington Consumer Protection Act.

[00:25:22] Speaker 03:
And as a point of fact, Your Honor, it's important to note that here,

[00:25:28] Speaker 03:
Montes admits that the very pants that are at the center of this case were offered for the full $12.50 price just three days prior to when she bought it.

[00:25:40] Speaker 02:
There's like the only time in the last two years that they ever had that price.

[00:25:44] Speaker 03:
We dispute, as a matter of law, that a former price is a representation of value.

[00:25:53] Speaker 03:
And to illustrate.

[00:25:55] Speaker 03:
Earlier this month, I bought Halloween costumes for my kids.

[00:25:59] Speaker 03:
Come November 1st, those will sell for a fraction of what I paid for them.

[00:26:04] Speaker 01:
Right, but I don't think that's analogous.

[00:26:06] Speaker 01:
It's because the event has passed.

[00:26:09] Speaker 01:
I mean, on November 1, they aren't worth the value that they were because the event you purchased them for has passed.

[00:26:18] Speaker 03:
Exactly.

[00:26:18] Speaker 03:
And that shows that the value

[00:26:22] Speaker 03:
of a consumer product, a mass produced consumer product like we're talking about here, is the current selling price.

[00:26:28] Speaker 01:
The value.

[00:26:29] Speaker 01:
So, I mean, I have to look at this from common sense.

[00:26:31] Speaker 01:
I shop a lot, and I have to admit, I think I'm getting something of value when I buy it on sale.

[00:26:38] Speaker 01:
And it does, and often, you can ask my husband this, often, I will buy stuff I never even wear because it was on sale.

[00:26:50] Speaker 01:
because I think I'm getting something of value.

[00:26:54] Speaker 03:
Ultimately, the consumer's individual assessment of value is a subjective factor that doesn't equate to a CPA injury.

[00:27:06] Speaker 03:
Economically, the consumer will buy something.

[00:27:09] Speaker 01:
The places where I shop are places where they're not falsifying.

[00:27:13] Speaker 01:
They're saying this

[00:27:15] Speaker 01:
this was sold at this price, and I know it was sold at that price, because then I see it at that price regularly, and then when it drops, then I think, okay, now I can buy it.

[00:27:27] Speaker 03:
And that provides a great distinction between you and the plaintiff here, Your Honor.

[00:27:31] Speaker 03:
Here, the plaintiff admits that she is a regular shopper at Aeropostale, and the plaintiff alleges in her complaint that the stores and websites are constantly, perpetually in her words.

[00:27:43] Speaker 03:
uh, using signs that say 50 to 70% off of everything.

[00:27:49] Speaker 03:
Simply put, it is implausible in light of those allegations that she could have been injured in the way that she claims.

[00:27:58] Speaker 03:
I see that my time's up if there are no further questions.

[00:28:02] Speaker 03:
If there are, I'd be happy to answer them.

[00:28:05] Speaker 03:
If there are no further questions, we ask that the court affirm the dismissal of the complaint without leave to amend.

[00:28:15] Speaker 03:
Thank you.

[00:28:19] Speaker 01:
Thank you very much, counsel.

[00:28:26] Speaker 04:
I'd like to start backwards basically to address some of the arguments.

[00:28:30] Speaker 04:
First, this argument that was raised about her being a regular shopper, that word regular cannot possibly be used to mean something that she's been there all the time.

[00:28:41] Speaker 04:
We believe that that could be as simple as shops there more than once or once a year.

[00:28:46] Speaker 04:
There's no way she could have known that.

[00:28:48] Speaker 04:
And on a motion to dismiss, the complaint must be taken as true.

[00:28:52] Speaker 04:
And she alleges that she did not know about these false reference prices.

[00:28:56] Speaker 04:
I would also go to this notion that Oregon and California have this thing called transaction causation.

[00:29:05] Speaker 04:
That's not a thing.

[00:29:07] Speaker 02:
Well, but I took a look at Hinojos and Hanson, and both of them place weight on the fact that California, like Oregon, has specific prohibitions.

[00:29:18] Speaker 02:
California actually has two of them.

[00:29:20] Speaker 02:
on price history misrepresentations.

[00:29:24] Speaker 02:
So that brings me back to my question.

[00:29:26] Speaker 02:
Do you have any jurisdiction, state court or a federal court addressing state law, where your theories have been accepted in the absence of such a statute?

[00:29:38] Speaker 04:
Well, again, Hinojos does address it for UCL and FAO, and I know that they have a separate section that talks about the CLRA, which has that enumerated list, but that's not a distinction that they make, rely upon.

[00:29:50] Speaker 02:
They both mentioned that

[00:29:52] Speaker 02:
California has a specific prohibition, and then put some weight on it.

[00:29:58] Speaker 02:
But I'll ask my question again.

[00:30:00] Speaker 02:
Is there a case that upholds the theories you're asserting in the absence of such a statute?

[00:30:08] Speaker 02:
Yes or no?

[00:30:09] Speaker 04:
No.

[00:30:11] Speaker 04:
Not outside of that one, no.

[00:30:12] Speaker 04:
But as this court did explain in Hinojos, that there is an economic injury.

[00:30:17] Speaker 04:
It's not a transaction causation.

[00:30:19] Speaker 04:
There is an actual economic loss there.

[00:30:21] Speaker 04:
Both these statutes have a lost money or property injury requirement, so they've not merged the elements.

[00:30:29] Speaker 04:
And to my last point,

[00:30:30] Speaker 04:
This concept of damages versus injury is being conflated improperly because injury is broader than damages.

[00:30:38] Speaker 04:
The Washington Supreme Court in Nordstrom explained that a plaintiff can allege an injury without showing damages.

[00:30:46] Speaker 04:
And the reason for that is because the statute allows for injunctive relief.

[00:30:50] Speaker 04:
and Scott V. Singler, the Washington Supreme Court, explained how important and vital private enforcement is of the CPA, and the court treated a plaintiff

[00:31:04] Speaker 04:
as a private attorney general who's representing the public's interest to be free from deceptive acts.

[00:31:11] Speaker 04:
And accordingly, a plaintiff in that position can seek an injunction even if it would not affect themselves.

[00:31:16] Speaker 04:
So the need to distinguish the damages and injury is necessary because while a plaintiff may be able to establish the injury, they can then seek the injunctive relief even if they could ultimately not prove damages in the end.

[00:31:29] Speaker 04:
And I believe that that is an important distinction that the Court should be acknowledging.

[00:31:34] Speaker 04:
I see that I'm out of time, so I would ask that the Court reverse the District Court's order or, on the alternative, certify this to the Washington Supreme Court.

[00:31:43] Speaker 04:
Thank you.

[00:31:44] Speaker 01:
All right.

[00:31:44] Speaker 01:
Thank you very much.

[00:31:45] Speaker 01:
Montes versus Spark Group is submitted, and the session of the Court is adjourned for today.