Rael v. New York & Company, Inc. et al

MOTION to Dismiss for Failure to State a Claim, MOTION to Strike Plaintiff's Third Amended Complaint

S.D. Cal.February 27, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE THE TAC SEDGWICK LLP STEPHANIE A. SHERIDAN, State Bar No. 135910 stephanie.sheridan@sedgwicklaw.com ANTHONY J. ANSCOMBE, State Bar No. 135883 anthony.anscombe@sedgwicklaw.com MEEGAN B. BROOKS, State Bar No. 298570 meegan.brooks@sedgwicklaw.com 333 Bush Street, 30th Floor San Francisco, CA 94104-2834 Telephone: 415.781.7900/Facsimile: 415.781.2635 Attorneys for Defendants NEW YORK & COMPANY, INC., and NEW YORK & COMPANY STORES, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA MONICA RAEL, on behalf of herself and all others similarly situated, Plaintiff, vs. NEW YORK & COMPANY, INC., a DELAWARE corporation, NEW YORK & COMPANY STORES, INC., a NEW YORK corporation, and DOES 1- 50, inclusive, Defendants. Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE PLAINTIFF’S THIRD AMENDED COMPLAINT Judge: Cynthia A. Bashant Date: Monday, April 3, 2017 NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.633 Page 1 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE THE TAC TO PLAINTIFF AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on April 3, 2017, or as soon thereafter as the matter may be heard, in Courtroom 5 of the above-entitled Court, at 221 West Broadway, Suite 4145, San Diego, CA 92101, Defendants New York & Company, Inc. and New York & Company Stores, Inc. (together, “NY&C”) will and hereby do move for an order dismissing Plaintiff Monica Rael’s (“Plaintiff”) Third Amended Complaint (“TAC”) in its entirety, pursuant to Rules 8, 9(b), 12(b)(6), 12(f), 12(g), and 23(d)(1)(D) of the Federal Rules of Civil Procedure. Plaintiff’s TAC fails to state a claim. Plaintiff does not allege facts sufficient to demonstrate that the price listed on her Jute Espadrille Wedges (shoes) was false or deceptive, and has not met the specific pleading standard required under Rule 9(b). The TAC’s new allegations concerning pricing in NY&C’s outlet stores and online are irrelevant, because Plaintiff does not claim to have shopped in either of those channels. In the alternative, NY&C requests that this Court strike all allegations by which Plaintiff seeks to represent a nationwide class, online or outlet customers, or customers who bought items that were not on clearance. As a matter of law, California law cannot be applied to the claims of out-of-state claimants, who made out-of-state purchases from an out-of-state defendant. Nor may Plaintiff bring claims on behalf of customers whose shopping experiences were patently different than hers. This Motion is based on this Notice of Motion and Motion; the attached Memorandum of Points and Authorities in support of the Motion; and on all other matters that may be judicially noticed or produced at the hearing of this matter. The motion is made following the conference of counsel that took place on February 21, 2017, pursuant to Section 4(A) of this Court’s Standing Order for Civil Cases. Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.634 Page 2 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE THE TAC DATED: February 27, 2017 SEDGWICK LLP By: /s/ Stephanie Sheridan Stephanie Sheridan Anthony Anscombe Meegan Brooks Attorneys for Defendants NEW YORK & COMPANY, INC. and NEW YORK & COMPANY STORES, INC. Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.635 Page 3 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 i Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE THE TAC TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES........................................... 1 I. INTRODUCTION AND SUMMARY OF ARGUMENT ............................. 1 II. OVERVIEW OF PLAINTIFF’S PLEADING TO DATE AND HER THIRD AMENDED COMPLAINT ............................................................... 2 III. THE THIRD AMENDED COMPLAINT FAILS TO CURE THE DEFICIENCIES OF THE SAC ...................................................................... 3 A. The TAC Changes Key Details Regarding Plaintiff’s Purchase, But Her Story Still Does Not Make Sense ............................................ 3 B. The TAC’s New Allegations are Deficient, Irrelevant, and Do Not Demonstrate that the Red Line Price on Plaintiff’s Shoes Was False .............................................................................................. 5 1. NY&C Outlet Stores ................................................................... 5 2. In-Store Investigations ................................................................ 6 3. Wayback Machine ...................................................................... 8 IV. THE TAC SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM ........................................................................................................ 8 A. Legal Standard Applicable to Motions Under Rule 12(b)(6) ............... 8 B. Plaintiff Does Not and Cannot Adequately Allege that NY&C’s Pricing is False or Deceptive .............................................................. 10 C. Plaintiff Still Fails to Describe the Allegedly Deceptive Advertisements with Particularity ...................................................... 12 D. Plaintiff’s Other Claims Also Fail ...................................................... 12 V. THE PURPORTED CLASS IS GROSSLY OVERBROAD AND SHOULD BE STRICKEN ............................................................................ 13 A. Plaintiff May Not Bring Claims on Behalf of a Nationwide Class .................................................................................................... 14 Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.636 Page 4 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 ii Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE THE TAC B. Plaintiff Cannot Bring Claims on Behalf of Purchasers Who Viewed Different Representations from Those Viewed by Plaintiff ................................................................................................ 18 1. Plaintiff Lacks Standing to Bring Claims on Behalf of Online Purchasers ..................................................................... 19 2. Plaintiff Lacks Standing to Bring Claims on Behalf of Outlet Store Customers ............................................................. 20 3. Plaintiff Lacks Standing to Bring Claims on Behalf of Customers who Purchased Non-Clearance Items .................... 21 VI. THE COURT SHOULD DENY PLAINTIFF LEAVE TO FURTHER AMEND HER COMPLAINT ....................................................................... 22 VI. CONCLUSION ............................................................................................. 22 Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.637 Page 5 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 iii Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE THE TAC TABLE OF AUTHORITIES Page(s) CASES Amchem Prods., Inc. v. Windsor 521 U.S. 591 (1997) ...................................................................................... 16 Ashcroft v. Iqbal 129 S. Ct. 1937 (2009) ................................................................................ 8, 9 Azimpour v. Sears 3:15-cv-02798-JLS-WVG, Dkt. 22 (S.D.Cal. Oct. 17, 2016) .......... 11, 12, 20 Bell Atlantic Corp. v. Twombly 550 U.S. 544 (2007) ........................................................................................ 9 Bly-Magee v. California 236 F.3d 1014 (9th Cir. 2001) ......................................................................... 9 Branca v. Nordstrom, Inc. No. 14CV2062-MMA JMA, 2015 WL 1841231 (S.D. Cal. Mar. 20, 2015) .............................................................................................................. 20 Bruton v. Gerber Products Co. 961 F. Supp. 2d 1062 (N.D. Cal. 2013) .................................................. 19, 21 Cafasso ex. rel. United States v. Gen. Dynamics C4 Sys., Inc. 637 F.3d 1047 (9th Cir. 2011) ......................................................................... 9 Castaneda v. Fila USA, Inc. 2011 WL 7719013 (S.D. Cal. Aug. 10, 2011) .............................................. 14 Churchill Village, LLC v. Gen. Elec. Co. 169 F. Supp. 2d 1119 (N.D. Cal. 2000) ........................................................ 15 Cole v. Gen. Motors Corp. 484 F.3d 717 (5th Cir. 2007) ......................................................................... 16 Cooper v. Pickett 137 F.3d 616 (9th Cir. 1993) ........................................................................... 9 DeBons v. Globus Med., Inc. 2016 WL 4363171 (9th Cir. Aug. 16, 2016) ................................................. 13 Edwards v. Marin Park Inc. 356 F.3d 1058 (9th Cir. 2004) ...................................................................... 12 Gen. Tel. of the Sw. v. Falcon 457 U.S. 147 (1982) ...................................................................................... 14 Georgine v. Amchem Prods., Inc. 83 F.3d 610 (3d Cir. 1996) ............................................................................ 16 Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.638 Page 6 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 iv Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE THE TAC Guzman v. Bridgepoint Educ., Inc. 305 F.R.D. 594 (S.D. Cal. 2015) ................................................................... 18 Haskins v. Symantec Corp. 654 F. App’x 338 (9th Cir. 2016) ............................................................... 18 In re Am. Med. Sys., Inc. 75 F.3d 1069 (6th Cir. 1996) ......................................................................... 16 In re Aqua Dots Products Liab. Litig. 654 F.3d 748 (7th Cir. 2011) ......................................................................... 16 In re Bridgestone/Firestone, Inc. 288 F.3d 1012 (7th Cir. 2002) ....................................................................... 16 In re Ditropan XL 529 F. Supp. 2d 1098 (N.D. Cal. 2007) ........................................................ 19 In re Ferrero Litig. 794 F. Supp. 2d 1107 (S.D. Cal. 2011) ........................................................ 19 In re Grand Theft Auto Video Game 251 F.R.D. 139 (S.D.N.Y. 2008)................................................................... 16 In re iPhone 4s Consumer Litig. 2016 WL 758346 (9th Cir. Feb. 25, 2016) ...................................................... 9 In re St. Jude Med., Inc. 425 F.3d 1116 (8th Cir. 2005) ....................................................................... 16 In re Tobacco II Cases 46 Cal. 4th 298 (2009) ................................................................................... 19 In re Toyota Motor Corp. 785 F. Supp. 2d 883 (C.D. Cal. 2011) ..................................................... 15, 17 Jacobo v. Ross Stores No. CV-15-04701-MWF-AGR, 2016 WL 3482041 (C.D. Cal. 2016) ......... 11 Johnson v. Jos. A. Bank Clothiers, Inc. 2014 WL 4129576 (S.D. Ohio Aug. 19, 2014) ............................................. 18 Kamm v. Cal. City Dev. Co. 509 F.2d 205 (9th Cir. 1975) ......................................................................... 14 Kearns v. Ford Motor Company 567 F.3d 1120 (9th Cir. 2009) ......................................................................... 9 Koehler v. Litehouse, Inc. 2012 WL 6217635 (N.D. Cal. Dec. 13, 2012) .............................................. 15 Leadsinger, Inc. v. BMG Music Publ’g 512 F.3d 522 (9th Cir. 2008) ......................................................................... 22 Lewis v. Casey 518 U.S. 343 (1996) ...................................................................................... 19 Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.639 Page 7 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 v Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE THE TAC Mazza v. American Honda Motor Co., Inc. 666 F.3d 581 (9th Cir. 2012) ............................................................. 15, 16, 18 McCrary v. Elations Co., LLC 2013 WL 6403073 (C.D. Cal. July 12, 2013) ............................................... 19 McHenry v. Renne 84 F.3d 1172 (9th Cir. 1996) ......................................................................... 22 Mehta v. Wells Fargo Bank, N.A. 737 F. Supp. 2d 1185 (S.D. Cal. 2010) ......................................................... 13 Metzler Inv. GMBH v. Corinthian Colleges, Inc. 540 F.3d 1049 (9th Cir. 2008) ....................................................................... 22 Miller v. Ghirardelli 912 F. Supp. 2d 861 (N.D. Cal. 2012) ......................................................... 21 Mulligan v. QVC, Inc. 382 Ill. App. 3d 620 (2008) ........................................................................... 18 Norwest Mortgage, Inc. v. Superior Court 72 Cal. App. 4th 214 (1999) .......................................................................... 15 Nunez v. Best Buy Co. 315 F.R.D. 245 (D. Minn. 2016) ............................................................. 11, 12 O’Donnell v. Bank of America Nat. Ass’n. 504 Fed. Appx. 566 (9th Cir. 2013) .............................................................. 13 Phillips Petroleum Co. v. Shutts 472 U.S. 797 (1985) ...................................................................................... 14 Pilgrim v. Universal Health Card, LLC 660 F.3d 943 (6th Cir. 2011) ......................................................................... 16 Reed v. NBTY, Inc. 2014 WL 12284044 (C.D. Cal. Nov. 18, 2014) ............................................ 19 Scripps Clinic v. Superior Court 108 Cal. App. 4th 917 (4th Dist. 2003) ......................................................... 13 Shaulis v. Nordstrom Inc. 2015 WL 4886080 (D. Mass. Aug. 14, 2014) ............................................... 18 Siegel v. Shell Oil Co. 256 F.R.D. 580 (N.D. Ill. 2008) .................................................................... 17 Sperling v. DSW Inc. No. EDCV151366JGBSPX, 2016 WL 354319 (C.D. Cal. 2016) ............... 11 Stanwood v. Mary Kay, Inc. 941 F. Supp. 2d 1212 (C.D. Cal. 2012) ......................................................... 19 Stone v. Conrad Preby’s 2013 WL 139939 (S.D. Cal. Jan. 10, 2013) .................................................. 22 Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.640 Page 8 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 vi Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE THE TAC Sullivan v. Oracle Corp. 51 Cal. 4th 1191 (2011) ................................................................................. 15 Swartz v. KPMG LLP 476 F.3d 756 (9th Cir. 2007) ......................................................................... 12 Vess v. Ciba-Geigy Corp. USA 317 F.3d 1097 (9th Cir. 2003) ........................................................................ 9 Waldron v. Jos. A. Bank Clothiers, Inc. 12-CV-02060, Dkt. 22 (D.N.J. Jan. 28, 2013) .............................................. 18 Williams v. Gerber Prods. Co. 552 F.3d 934 (9th Cir. 2008) ......................................................................... 12 Wilson v. Frito-Lay North America, Inc. 961 F. Supp. 2d 1134 (N.D. Cal. 2013) .................................................. 15, 19 Zucco Partners, LLC v. Digimarc Corp. 552 F.3d 981 (9th Cir. 2009) ......................................................................... 22 STATUTES 53 Pa. Stat. Ann. § 4471-5(b) .................................................................................. 21 6 R.I. Gen. Laws Ann. § 6-13.2-5(3) ....................................................................... 21 Business & Professions Code § 17200 ............................................................................................................ 2 § 17500 .......................................................................................................... 13 § 17501 .......................................................................................................... 13 California Civil Code §1750 ...................................................................................... 3 California’s False Advertising Law Business & Professions Code §17500, et seq. ............................................... 2 Fed. R. Civ. P. 12(f) ........................................................................................................... 1, 14 23(c)(1)(A) .................................................................................................... 14 23(d)(1)(D) ................................................................................................ 1, 14 N.Y. GBL § 584 ....................................................................................................... 21 Okla. Stat. tit. 15, § 598.6(a)(1) ............................................................................... 21 Wis. Stat. Ann. § 100.30(6)(1) ................................................................................ 21 Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.641 Page 9 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 1 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF ARGUMENT On December 28, 2016, this Court dismissed Plaintiff’s Second Amended Complaint (SAC) for failure to state a claim. (Dkt. 21.) The Court found that Plaintiff’s SAC failed to satisfy Rule 9 because Plaintiff did not plead sufficient details about the representations on which she relied, and because Plaintiff failed to allege facts to show that those representations were false. Plaintiff’s newly filed Third Amended Complaint (TAC) does nothing to cure the defects of her SAC. The TAC has added some additional information about representations made by Defendants New York & Company, Inc. and New York & Company Stores, Inc. (together, “New York & Company,” or “NY&C”), but Plaintiff’s purported reliance on these representations is contradicted by her own exhibits, and by the actual signage posted in the store. Plaintiff’s newly added details do not form a plausible basis for her action. Plaintiff bases her entire case upon her sole purchase of one pair of shoes, which she bought on clearance in a full price NY&C store. In support of her claim that NY&C’s pricing is deceptive, Plaintiff adds several allegations relating to NY&C’s online and outlet pricing—neither of which is relevant because Plaintiff herself admittedly did not buy her shoes online or at an outlet. These “new” allegations say nothing of significance about pricing at the regular NY&C retail store from which Plaintiff made her purchase. And Plaintiff still fails to “provide any facts that demonstrate why or how the original retail price [listed on the shoes she bought] is false.” (Dkt. 21 at 12.) Plaintiff’s “conclusory allegations” are insufficient under Rule 9. (Id. at 13, 12.) In the alternative, NY&C requests that this Court strike all allegations by which Plaintiff seeks to represent a nationwide class, online or outlet customers, or customers who bought items that were not on clearance. As a matter of law, California law cannot be applied to the claims of out-of-state claimants, who made Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.642 Page 10 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 2 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT out-of-state purchases from an out-of-state defendant. Nor may Plaintiff bring claims on behalf of customers who relied on representations she herself did not ever even see. II. OVERVIEW OF PLAINTIFF’S PLEADING TO DATE AND HER THIRD AMENDED COMPLAINT In her original complaint, filed on February 11, 2016, Plaintiff claimed to have bought “a pair of women’s pants.” (Dkt. 1 ¶¶ 10, 15.) In her First Amended Complaint (FAC), Plaintiff claimed to have purchased “a pair of women’s shoes,” in addition to a pair of “women’s pants.” (FAC ¶¶ 10, 15.) In her SAC, filed May 17, 2016, Plaintiff removed the reference to the pants, and specified that the shoes she purchased were Jute Espadrille Wedges. (SAC ¶¶ 10 n.1, 15.) NY&C responded to the SAC with a motion to dismiss on May 27, 2016. (Dkt. 13.) This Court granted that motion on December 28, 2016. (Dkt. 21.) The Court held that: (1) Plaintiff lacks standing to seek injunctive relief because she is not at risk of a future injury; (2) that Plaintiff lacks standing to bring claims under the consumer protection statutes of other states (dismissing Plaintiff’s claim with prejudice); (3) that Plaintiff failed to plead sufficient details about her purchase, such as “what signs she relied on, what the signs said or looked like, or where they were located” (Dkt. 21, at 12); (4) that Plaintiff’s claims as to NY&C’s online pricing could not save her claims because “nowhere does Plaintiff allege in her SAC that she ever visited NY&C’s online store” (id.); and (5) that the SAC did not satisfy Rule 9 because it “does not provide any facts that demonstrate why or how the original retail price of $49.95 is false.” Id. Plaintiff filed her TAC on January 23, 2017. Plaintiff has dropped her claim for injunctive relief and her claim under the laws of other states, but again purports to state causes of action under California’s Unfair Competition Law (“UCL”), Business & Professions Code §17200, et seq.; California’s False Advertising Law (“FAL”), Business & Professions Code §17500, et seq.; and the Consumer Legal Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.643 Page 11 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 3 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT Remedies Act (“CLRA”), California Civil Code §1750 et seq. Plaintiff also still seeks to bring this action on behalf of a nationwide class of people who purchased items from any NY&C store in the country, or online. (TAC ¶ 49-50.) III. THE THIRD AMENDED COMPLAINT FAILS TO CURE THE DEFICIENCIES OF THE SAC A. The TAC Changes Key Details Regarding Plaintiff’s Purchase, But Her Story Still Does Not Make Sense As in the SAC, Plaintiff claims to have bought a pair of Jute Espadrille Wedges from NY&C for $16.17, which is 70% off the shoes’ list price of $49.95. (TAC ¶ 14.) She again claims the pricing on the shoes was deceptive, because the shoes had not been sold for $49.95 in the 90 days preceding her purchase. (Id. ¶ 15.) Beyond these core allegations, Plaintiff has altered key details of her story, presumably in response to evidence provided by NY&C (Dkt. 13), which showed that she could not have made her purchase as alleged in the SAC.1 For example, rather than claiming to have bought her shoes at an outlet mall, (SAC ¶¶ 10, 15), Plaintiff now claims to have purchased them from a retail store located at Westfield Mission Valley mall, in San Diego. (TAC ¶ 14.) Plaintiff previously alleged that the price tag on the shoes contained the phrase “70% off” (SAC ¶ 15); the TAC removes that allegation, and now claims that Plaintiff “believes” that “there was a redline drawn through the price tag price with a red marker.” (Id.) The TAC includes an example of what the price tag supposedly looked like (TAC, p. 27), but that price tag looks different from Plaintiff’s description, because it does not have a red line drawn on it. 1 This is not the first time that Plaintiff has changed her factual allegations. “Plaintiff has [now, three times] amended her complaint regarding the where and what she purchased from Defendants.” See Order Dismissing SAC, Dkt. 21, at 14. Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.644 Page 12 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 4 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT Plaintiff now claims to have relied on a “large, red, rectangular sign, approximately one-foot-long and eight to ten inches in height” that “advertised that all of the shoes in the store were 70% off.” (TAC ¶ 14.) Plaintiff does not specify what language actually appeared on the sign, nor does she attach a copy of the sign. Instead, she attaches to the TAC two examples of NY&C signage, and claims that the “sign she observed looked similar” to these examples. (Id. (citing “Exhibit, A, P.1-2”).) However, these two examples look different from one another, and neither says that “all of the shoes in the store” were 70% off. Plaintiff’s shifting account is further impeached by her own exhibits. The sales receipt attached to the TAC (p. 33) shows that the shoes were not discounted, as alleged, as part of a sale that applied to “all of the shoes in the store.” Instead, the sales receipt describes Plaintiff’s shoes as a “Clearance” and redline (“RL”) item, and applies the discount “Final Sale RL 70% Off.” (Id.) This means that the sale applied only to clearance items, marked with a “Red Line,” not to the entire store. Plaintiff herself recognizes that NY&C’s Mission Valley store sometimes offers a promotion for 70% off all “redline shoes,” and that this same promotion was offered in August, 2015, just months before her own purchase. (TAC, p. 39.) As Plaintiff has made allegations as to the appearance of signs in the store when she made her purchase, she has incorporated those signs by reference. NY&C has provided the Court herewith the actual “Red Line” signage posted in the Mission Valley store on November 24, 2015. (RJN, Exhibit A, at 1.) Although one of NY&C’s signs was “red” and “rectangular,” the actual sign was 14 inches by 29.5 inches—more than twice the size Plaintiff alleged. Id. The sign reflects the same sale described on Plaintiff’s receipt—‟ALL REDLINES TAKE AN EXTRA 70% OFF.”2 Id. The store also posted additional signage drawing 2 There was an insert on this sign stating “Shoes.” (RJN, Exhibit A, at 2.) Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.645 Page 13 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 5 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT customers’ attention to the redline merchandise, stating, “New markdowns taken! LOOK FOR THE REDLINES.” (Id. at 3.) Where the SAC alternated indiscriminately between referring to NY&C’s prices as “market” prices, “former” prices, and “original” prices, the TAC now alleges that NY&C’s full-priced stores use “regular” prices, while its outlets use “Our Prices.” (TAC ¶¶ 2-4.) Plaintiff defines “regular prices” to mean “the price listed on the original price tag,” (TAC ¶ 2) but points to nothing to show that NY&C defined its prices this way. Plaintiff does not, for example, allege that the word “regular” appeared on the price tag on the shoes she purchased. (TAC ¶ 14, p. 27.) Moreover, the TAC itself shows that not all former prices are advertised the same way: While redline items such as Plaintiff’s have a red line drawn on the tag (TAC ¶ 14), other tags do not have any such red line. (TAC, p. 27.) Like the SAC, the TAC again repeatedly refers to NY&C’s pricing as a deceptive, “years-long campaign” to deceive consumers—this time using the word “scheme” 14 times, and now also describing NY&C’s alleged practices “systemic and pervasive”. (TAC ¶¶ 34, 36, 41.) The TAC does not allege any facts relevant to Plaintiff’s single purchase, however, to support these sweeping generalizations. In all, the TAC reflects nothing so much as a Plaintiff who, more than a year after commencing this lawsuit and 15 months after purchasing a pair of shoes, has no idea about the circumstances of her own purchase, and whose attempts to backfill these details remains shoddy, incomplete, and implausible. Taken as a whole, the TAC shows only that Plaintiff bought a single item at a full priced store, during a time-limited clearance sale. B. The TAC’s New Allegations are Deficient, Irrelevant, and Do Not Demonstrate that the Red Line Price on Plaintiff’s Shoes Was False 1. NY&C Outlet Stores While Plaintiff has removed her claim to have shopped at “at an outlet mall,” the TAC still includes a number of new allegations specific to NY&C’s Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.646 Page 14 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 6 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT outlet stores. (See, e.g., TAC ¶¶ 3, 5, 29, 38-40.) The TAC cites language from NY&C’s 10-K report to show that “Defendant manufactures apparel and accessories specifically for its outlet stores,” (see TAC ¶ 39, see also id. ¶ 37-40), and also claims that Plaintiff investigated products sold in NY&C outlet stores. (TAC ¶¶ 27-35.) These claims are irrelevant, as Plaintiff does not claim to have purchased her shoes in an outlet, to have ever visited a NY&C outlet, or to have viewed a NY&C outlet price tag before making her shoe purchase at NY&C’s retail store. Nor does Plaintiff claim that NY&C’s outlet and retail stores use similar sales practices—to the contrary, she specifically states that they sell different merchandise (TAC ¶ 39) using different representations (TAC ¶ 3). 2. In-Store Investigations Plaintiff claims to have sent “one or more investigators” into NY&C’s outlet and retail stores to “observe” the pricing information for items offered for sale. (TAC ¶ 32.) The TAC alternates between calling this “Plaintiffs’ [sic] investigation” (TAC ¶¶ 32-33) and “Plaintiffs’ [sic] counsel’s investigation” (id. ¶ 30; see also ¶¶ 27-29, 31), but states that the investigation began in “spring of 2015”—long before Plaintiff made the purchase at issue here. (TAC ¶ 27.) Plaintiff offers no explanation as to why the Court should rely on these new allegations, as she is only mentioning this supposed “investigation” for the first time now (in her fourth complaint, a year after bringing this action), even though it was purportedly conducted months before the Plaintiff’s November 2015 purchase. Plaintiff does not claim that the investigators observed the shoes that she actually purchased. Instead, the investigation focused on items that Plaintiff does not claim to have ever bought, much less even seen. Plaintiff attaches to the TAC a chart of twenty five (25) items that her counsel “determined to be continuously discounted from their ‘regular price’ for 90 or more days in the retail stores or discounted from a false ‘Our Price’ price in the outlet stores for 90 or more days.” (TAC ¶ 33, pp. 37-39.) But only five of the 25 products that Plaintiff allegedly Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.647 Page 15 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 7 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT investigated are from NY&C retail locations. 3 (TAC, pp. 33-40.) The remaining products are items from NY&C’s outlet stores—which, as discussed above, Plaintiff did not visit or purchase an item from. Two of the five retail store products were not investigated until October 11, 2016, nearly a year after Plaintiff’s alleged purchase. (Id., pp. 39-40.) Plaintiff describes two of the remaining three items, none of which are shoes, by using a general category descriptor (i.e. “NY&Co Jeans”) rather than a specific product. For each item, the chart makes the same conclusory allegations that Plaintiff previously made as to the shoes she claims to have purchased, which this Court found to be deficient. Again, the TAC’s allegations concerning the investigation are “simply a restatement of the conclusory allegations that Plaintiff states in her [complaint].” (Dkt. 21, p. 13.) The chart attached to the TAC states that each item was “Continuously discounted at various discounts for 90 days or until out of stock,” (TAC, p. 37), but offers no facts to support its conclusions. As with the SAC, the TAC “does not specify a single detail of [the] alleged investigation,” (Dkt. 21, p. 13), such as how many times the investigators looked at each item. To the contrary, the chart itself only lists a single date that each product was “observed.” (TAC, pp. 37-40.) Thus, Plaintiff has established nothing other than that each time her investigator walked into an NY&C store, the store was offering one or two items at a discount. This certainly does not establish a deceptive pricing “scheme.” Finally, Plaintiff has not alleged facts to show that the five NY&C retail store products she investigated, viewed over an approximately 18 month period, are an accurate or reliable sample of NY&C’s retail merchandise pricing practice. 3 Plaintiff lists “All redline shoes” as a sixth “item.” She recognizes that this “item” refers to multiple products with “various retail prices.” However, Plaintiff does not allege that the same styles were being offered on sale for the entire 90-day period. Indeed, “redline” items—clearance items—are, by definition, offered at a discount, in order to quickly sell through the remaining inventory. Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.648 Page 16 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 8 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT Plaintiff admits that at least some items in NY&C’s retail stores are offered at full price. (See TAC ¶ 33, distinguishing the outlets and retail stores, because in the outlets “all items” are discounted at “all times,” whereas in the retail stores, items are “frequently” (i.e., not always, offered at a discount). She intentionally omitted from her chart the items offered at full price. (See id., stating that Exhibit E lists only the items that Plaintiff “determined to be continuously discounted.”) 3. Wayback Machine Plaintiff also claims to have investigated NY&C’s online pricing practices by using the Wayback Machine. (TAC ¶ 35, pp. 70-71.) This internet archive tracks and records web images at varying intervals, but these images are not relevant to this case. Plaintiff does not claim to have made an online purchase. Rather, she alleges that she bought her shoes in a retail store. She also has not provided any information from the Wayback Machine that relates to the shoes she bought. Moreover, she has pled nothing to show that online and brick and mortar retail stores follow the same pricing practices. Indeed, she could not do this, as her allegations about retail store pricing practices are paltry and insufficient. Moreover, the fact that Plaintiff claims to have identified 154 items that each happened to be on sale once “every few weeks or months” (TAC, p. 9 n.4) does not show that the reference prices for these 15 items were deceptive, much less that every item in NY&C’s retail stores is deceptively priced. IV. THE TAC SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM A. Legal Standard Applicable to Motions Under Rule 12(b)(6) To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 4 The “cutout high-heel sandal” was listed twice on Plaintiff’s Wayback Machine chart. Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.649 Page 17 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 9 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Furthermore, “a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 554. A plaintiff alleging fraudulent conduct must further satisfy Rule 9(b), which requires the plaintiff to plead the circumstances constituting fraud with particularity. Kearns v. Ford Motor Company, 567 F.3d 1120, 1126 (9th Cir. 2009). “Averments of fraud must be accompanied by ‘the who, what, where, and how’ of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1993)). Rule 9(b) serves not only to give notice to defendants of the specific fraudulent conduct against which they must defend, but also: [T]o deter the filing of complaints as a pretext for the discovery of unknown wrongs, to protect [defendants] from the harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis. Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (internal citations and quotation marks omitted). To satisfy Rule 9(b), it is not enough for the plaintiff to simply claim that that a representation is false—she must “explain what is false or misleading about the statement made and why it is false.” In re iPhone 4s Consumer Litig., No. 14-15487, 2016 WL 758346, at *1 (9th Cir. Feb. 25, 2016) (quoting Cafasso ex. rel. United States v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)) (emphasis added). Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.650 Page 18 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 10 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT B. Plaintiff Does Not and Cannot Adequately Allege that NY&C’s Pricing is False or Deceptive This Court has already once dismissed Plaintiff’s “conclusory allegations” that the pricing on the shoes she purchased was deceptive (Dkt. 21 at 12, 13), and the TAC alleges no facts to compel a different outcome. The TAC fails under both Rules 8 and 9 and must be dismissed. Plaintiff claims in vague terms that her allegations as to the shoes are supported by her counsel’s “investigation,” (TAC ¶¶27-35), but Plaintiff has not pled sufficient facts about the investigation to permit any inferences to be drawn. See In re Worlds of Wonder, 694 F. Supp. 1427, 1432 (N.D. Cal. 1988) (statement that information and belief regarding fraud was based upon investigation made by plaintiffs by and through their attorneys did not sufficiently state facts upon which belief was founded). Based on this alleged investigation, the TAC makes sweeping claims as to NY&C’s retail, outlet, and online pricing practices (see TAC ¶ 33 (“all items in the outlet store were discounted at all times”; “the retail stores frequently and continuously discounted all items”); ¶ 35 (“over 90% of the items…were continuously offered at a discount”). However, the TAC includes no details as to the investigation that could support these conclusions. Of even greater significance, Plaintiff does not claim that her counsel investigated the one item that actually matters in this case: the Jute Espadrille Wedges that Plaintiff actually purchased. Plaintiff offers no new facts to support her conclusion that the shoes she purchased were never offered for sale at $49.95. Nor does she claim to have ever viewed or relied on any of the products investigated by her counsel; indeed most of the investigated items are irrelevant as they derive from NY&C channels – online and retail – that Plaintiff does not claim to have ever visited. As to Plaintiff’s alleged investigation into NY&C’s retail stores, Plaintiff’s claim to have investigated five items—each on a single day at a single store—falls woefully short of satisfying Plaintiff’s burden to plead facts showing the falsity of the price information on her own purchase. Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.651 Page 19 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 11 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT Other courts have dismissed complaints for the exact kind of deficiencies present here. In Azimpour v. Sears, 3:15-cv-02798-JLS-WVG, Dkt. 22 (S.D.Cal. Oct. 17, 2016) (RJN, Exhibit B) (one of several other deceptive pricing cases brought by Plaintiff’s counsel), the court granted Sears’ motion to dismiss, where Plaintiff’s counsel had incorporated data from an independent study of Sears’ sales practices, which showed that Sears routinely sold products below the “original” price. The court explained that the study “does not substantiate Plaintiff’s claims” as to the pillow that Plaintiff purchased, because: [T]he CSS Study cited by Plaintiff does not appear to contain data on the particular pillow purchased by Plaintiff, much less a description of the alleged misleading “pricing information” Plaintiff saw before making his purchase. (FAC ¶¶ 11–16.) Thus, while potentially indicative of Defendant’s alleged misrepresentations on a general level, the CSS Study does not substantiate Plaintiff’s claims as to his pillow. Id. at 13. In another pricing case, Nunez v. Best Buy Co., 315 F.R.D. 245 (D. Minn. 2016), the court similarly rejected the plaintiff’s argument based on an independent study into the retailer’s pricing practices: Nunez argues that the CSS Study sufficiently supports his allegation that Best Buy defrauded him. The Court, however, disagrees … the CSS Study reports pricing trends for only eight items sold by Best Buy, and it does not include any information about the General Electric over-the-range microwave that Nunez bought. As such, the CSS Study lends little—if any—support to the allegation that $199.99 was not the true “regular” price of the microwave Nunez purchased, because it simply does not address that product. Id. at 25; see also Sperling v. DSW Inc., No. EDCV151366JGBSPX, 2016 WL 354319, at *7 (C.D. Cal. 2016) (dismissing complaint with prejudice despite Plaintiff’s claim to have investigated a pair of shoes that Plaintiff herself did not allege ever viewing) (appeal pending); Jacobo v. Ross Stores, No. CV-15-04701- MWF-AGR, 2016 WL 3482041, at *3 (C.D. Cal. 2016) (citing Williams v. Gerber Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.652 Page 20 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 12 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)) (To allege a claim under the UCL, FAL, and CLRA, “[p]laintiffs must allege facts showing that the advertisement in question is misleading to the reasonable consumer.”) (emphasis added). Here, Plaintiff’s claims about a “pricing scheme” are even weaker than those found insufficient in Azimpour and Nunez. Rather than relying on an independent study that disclosed the number of products reviewed and that recorded the price of each item on a daily basis, the TAC relies on an “investigation” by Plaintiff’s counsel into an unspecified number of items, which intentionally excluded items that were not on sale. C. Plaintiff Still Fails to Describe the Allegedly Deceptive Advertisements with Particularity Plaintiff’s allegations about the representations at issue also fail to satisfy Rule 9(b)’s heightened standards. Rule 9 requires plaintiffs to allege “specific content of the false representations” on which they relied. Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (quoting Edwards v. Marin Park Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)). Plaintiff fails to satisfy that standard. The TAC attaches examples of what she claims that the price tag and signage looked like during her visit, but as discussed above, these examples undermine her own claims—these examples do not show the representations she actually viewed, and in fact, look nothing like those representations. Nor are these examples deceptive on their faces. In fact, the signs she might actually have seen in the store demonstrate only that NY&C was offering a selection of shoes for a limited time through a clearance sale. Thus, as with the SAC, “Nowhere does Plaintiff give details as to what signs she relied on [or] what the signs said or looked like…” (Dkt. 21, at 12.) D. Plaintiff’s Other Claims Also Fail Plaintiff does not state a claim for false advertising because she does not adequately allege that NY&C made an “untrue and misleading” representation, let alone that “Defendants know that their comparative advertising is false, deceptive, Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.653 Page 21 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 13 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT misleading and unlawful under California law.” Cal. Bus. & Prof. Code § 17500; TAC ¶ 17. Similarly, Plaintiff’s claims under Bus. & Prof. Code §17501 fail because Plaintiff does not allege any facts to show that the prevailing price for her shoes was not $49.95 within the three months preceding her purchase. Plaintiff cannot state a claim under the UCL’s “unfairness” or “unlawfulness” prongs, because she has not alleged any conduct by NY&C that “offends an established public policy or ... is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers,” Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917, 939 (4th Dist. 2003), or that violates any underlying law, Mehta v. Wells Fargo Bank, 737 F. Supp. 2d 1185, 1206 (S.D. Cal. 2010) (stating that an “unlawfulness” claim “stands and falls with the viability of [the] other claims.”). Additionally, Plaintiff may not “use California law to engineer” a cause of action under the FTCA. See O’Donnell v. Bank of America Nat. Ass’n., 504 Fed. Appx. 566, 568 (9th Cir. 2013) (“The district court rightly dismissed the unfair competition claim premised on Bank of America’s alleged violation of the Federal Trade Commission Act. The federal statute doesn’t create a private right action, and plaintiffs cannot use California law to engineer one.”); see also DeBons v. Globus Med., Inc., 2016 WL 4363171, at *1 (9th Cir. Aug. 16, 2016) (UCL does not permit private litigants to manufacture a cause of action under the FDCA). V. THE PURPORTED CLASS IS GROSSLY OVERBROAD AND SHOULD BE STRICKEN Plaintiff purports to bring this case on behalf of a class of “All persons who purchased one or more items from Defendant offered at a purported discount from an ‘Our Price,’ or ‘regular,’ price” during the class period. (TAC ¶ 50.) There are two serious problems with this definition. First, Plaintiff purports to represent a nationwide class, even though California law cannot, as a matter of law, be applied to the claims of non-resident claimants, and, as the Court has already found, Plaintiff may not assert claims under the laws of other states. Second, even as to Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.654 Page 22 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 14 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT her proposed California subclass, she cannot assert claims on behalf of anyone who bought merchandise under circumstances dissimilar to those of her own purchase. The Supreme Court has recognized that sometimes the impossibility of class certification will be apparent on the face of the complaint. Gen. Tel. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982). Rule 23 authorizes the court to eliminate defective class allegations before discovery. See Fed. R. Civ. P. 23(c)(1)(A) (requiring the court to determine “at an early practicable time” whether to “certify the action as a class action.”); Fed R. Civ. P. 23(d)(1)(D) (permitting the court to order that pleadings be amended to remove class allegations.) Additionally, Fed. R. Civ. P. 12(f) permits the Court to strike from the TAC any “immaterial, impertinent or scandalous matter.” Where the pleadings demonstrate that a nationwide class cannot be certified, early intervention by the Court will eliminate unnecessary and costly discovery and motion practice. See, e.g., Kamm v. Cal. City Dev. Co., 509 F.2d 205, 212-213 (9th Cir. 1975); Castaneda v. Fila USA, Inc., 2011 WL 7719013 (S.D. Cal. Aug. 10, 2011). Here, the Court should strike all references to, and claims on behalf of, consumers who made purchases outside of California. For purported class members in California, the Court should strike all allegations about purchases or pricing in outlet malls, or online, or as to consumers who purchased items discounted through promotional (non-clearance) sales. A. Plaintiff May Not Bring Claims on Behalf of a Nationwide Class Plaintiff cannot bring claims pursuant to California law on behalf of consumers from all fifty states. California has no connection to NY&C or to absent class members who live beyond its borders, and made purchases in their home states. As a matter of law, Due Process forbids extra-territorial application of California law where California has no tie to the defendant or out of state plaintiffs. See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821 (1985) (a court “may Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.655 Page 23 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 15 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT not take a transaction with little or no relationship to the forum and apply the law of the forum.”); Norwest Mortgage, Inc. v. Superior Court, 72 Cal. App. 4th 214, 226-227 (1999) (rejecting the application of UCL to a nationwide class, where the defendant’s “headquarters and principle place of business, the place [where the putative class members] were injured and the place the injury-producing [transaction] occurred are outside of California.”); Wilson v. Frito-Lay North America, 961 F. Supp. 2d 1134, 47-48 (N.D. Cal. 2013) (dismissing with prejudice claims based on purchases that occurred outside California: “… the Supreme Court of California has clarified that state statutes like the UCL, FAL and CLRA presumptively do not apply to occurrences outside California.”) (citing Sullivan v. Oracle Corp., 51 Cal. 4th 1191, 1207 (2011)); see also Churchill Village, LLC v. Gen. Elec. Co., 169 F. Supp. 2d 1119, 1126-1127 (N.D. Cal. 2000); In re Toyota Motor Corp., 785 F. Supp. 2d 883, 918 (C.D. Cal. 2011) (accord); Koehler v. Litehouse, Inc., 2012 WL 6217635, at *3 (N.D. Cal. 2012) (accord). And because California law cannot be applied extraterritorially here, the nationwide class action is doomed. The Court has already held that Plaintiff lacks standing to assert claims under the laws of the other forty nine states and the District of Columbia, so putative class members residing outside California have no class representative. Moreover, even if the TAC had named class representatives to protect the interests of non-resident class members, the TAC does not disclose a basis for applying the law of a single state to all claims. The Ninth Circuit’s decision in Mazza v. American Honda Motor Co., Inc. holds that conflicts of law preclude the certification of a class that would require the application of the law of all fifty states. 666 F.3d 581, 588 (9th Cir. 2012). The Mazza Court found “the district court abused its discretion in certifying a [nationwide] class under California law” because: (1) material differences existed between California’s UCL, FAL, and CLRA (the same laws at issue here) and the laws of the 43 other jurisdictions in which class members resided; (2) foreign Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.656 Page 24 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 16 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT jurisdictions had a compelling interest in applying their own consumer protection laws; and (3) the interests of these other states outweighed California’s interest in having its laws applied extraterritorially. The Court concluded that “variances in state law overwhelm[ed] common issues and preclude[d] predominance for a single nationwide class,” (id. at 590, 596), and that “each class member’s consumer protection claim should be governed by the…laws of the jurisdiction in which the transaction took place.” Id. at 594.5 As the Mazza court explained, there are important and meaningful differences between California’s laws and the laws of other states. Attached as Exhibit A to the Declaration of Stephanie Sheridan is a chart highlighting many material differences between each state’s statute, including: • Injury/Deception Requirements: States have different injury and deception requirements. While the majority of states require proof of an injury, DE, D.C., and NM have no injury requirement. Other states such as ME require a “substantial injury.” Similarly, while many states do not have a deception requirement, other states such as IL require proof of actual deception. • Scienter Requirement: The statutes of at least 13 states (AL, AZ, AK, CO, KS, MS, NV, PA, SD, UT, VA, WI, WY) require some degree of scienter, while other states, such as CA, CT, FL, and GA, do not have a scienter requirement. • Reliance/Causation: At least 8 states (AZ, CA, IN, OR, PA, VA, 5 The Ninth Circuit’s holding in Mazza is mirrored by decisions in other Circuits. See Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 946–49 (6th Cir. 2011); In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015–18 (7th Cir. 2002); Cole v. Gen. Motors Corp., 484 F.3d 717, 724 (5th Cir. 2007); Georgine v. Amchem Prods., Inc., 83 F.3d 610, 627 (3d Cir. 1996), aff’d sub nom. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997); In re Grand Theft Auto Video Game, 251 F.R.D. 139, 147 (S.D.N.Y. 2008); In re Am. Med. Sys., Inc., 75 F.3d 1069, 1085 (6th Cir. 1996); In re St. Jude Medical, Inc. Silzone Heart Valve Prods. Liab. Litig., 425 F.3d 1116 (8th Cir. 2005); In re Aqua Dots Products Liab. Litig., 654 F.3d 748 (7th Cir. 2011). Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.657 Page 25 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 17 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT WV, WI) include a reliance requirement in their consumer protection laws, whereas other states (AL, CT, DE, FL, IL, MA, MT, NH, NY) do not require any showing of reliance. See Siegel v. Shell Oil Co., 256 F.R.D. 580, 585 (N.D. Ill. 2008) (“several states’ consumer fraud laws require proof of deception or reliance, thus precluding class certification”). • Relief: Some states permit recovery of damages (AZ, AK, HI, IL, IN, MA, NH, RI, SD, TX), while other states limit the available remedies to equitable or restitutionary relief (CA (UCL, FAL), GA (UDTPA), UT). 21 states plus D.C. do not allow claims for unjust enrichment where the plaintiff received the benefit of her bargain: AZ, AK, CA, FL, IL, IA, MA, MI, MN, MS, MO, NE, NH, NM, NY, NC, ND, OR, RI, SC, UT. In addition, at least 8 states do not permit punitive damages: CA (UCL, FAL), LA, ME, MT, NJ, SC, SD, TN. • Statutes of limitations: Statutes of limitations for consumer protection laws vary significantly—from 1 to 10 years—among the states: 1 year (AZ, LA); 2 years (AK, ID, IN, KY, OH, TX, VA); 3 years (CA (CLRA, FAL), CT, CO, D.C., DE, IL, KS, MD, NH, NY, WI); 4 years (CA (UCL), FL, GA, HI, MA); 5 years (AR, MO); 6 years (ME, MN, NJ, ND, PA, VT); 10 years (RI). See In re Toyota Motor Corp., 785 F. Supp. 2d 925, 933 (C.D. Cal. 2011) (limitations period is material difference among consumer protection statutes). Differences between the scienter and reliance requirements imposed by each state’s consumer protection statutes are “not trivial or wholly immaterial,” because “[i]n cases where a defendant acted without scienter, a scienter requirement will spell the difference between the success and failure of a claim,” and “[i]n cases where a plaintiff did not rely on an alleged misrepresentation, the reliance requirement will spell the difference between the success and failure of the claim,” Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.658 Page 26 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 18 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT and that “there are also material differences in the remedies given by state laws.” Mazza, 666 F.3d at 591; see also Guzman v. Bridgepoint Educ., Inc., 305 F.R.D. 594, 615 (S.D. Cal. 2015) (Bashant, J.) (differences between the scienter requirements, reliance requirements, and limitations periods imposed by state consumer protection statutes are material). Indeed, several courts in other states have dismissed deceptive pricing claims very similar to Plaintiff’s after finding that the plaintiff lacked standing to bring a claim because he or she received the benefit of the bargain, and thus suffered no damage or injury. See, e.g., Shaulis v. Nordstrom Inc., 2015 WL 4886080 (D. Mass. Aug. 14, 2014) (dismissing deceptive pricing claim because Plaintiff failed to allege pecuniary loss); Belcastro v. Burberry Limited, Case No. 16-CV-1080 (VEC) (S.D.N.Y Feb. 23, 2017) (Dkt. No. 47) (RJN, Exhibit C) (same, under NY and FL law); Mulligan v. QVC, Inc., 382 Ill. App. 3d 620, 888 N.E.2d 1190 (2008); Johnson v. Jos. A. Bank Clothiers, 2014 WL 4129576, at *5 (S.D. Ohio Aug. 19, 2014); Waldron v. Jos. A. Bank Clothiers, 12-CV-02060, Dkt. 22, at *7-8 (D.N.J. Jan. 28, 2013) (RJN, Exhibit D). If Plaintiff was contends that the consumer protection laws of California, Massachusetts, New York, Florida, Illinois, Ohio, and New Jersey are not materially different, then these cases should support a similar outcome here and her entire case should be dismissed. B. Plaintiff Cannot Bring Claims on Behalf of Purchasers Who Viewed Different Representations from Those Viewed by Plaintiff The TAC, like the SAC, purports to bring claims on behalf of persons whose shopping experiences were patently different from Plaintiff’s. However, courts routinely dismiss claims for lack of standing where the plaintiff purports to bring claims based on representations that she did not see or rely on. See, e.g., Haskins v. Symantec Corp., 654 F. App’x 338, 339 (9th Cir. 2016) (affirming dismissal of UCL and CLRA claims where plaintiff “did not allege that she read and relied on a specific misrepresentation by Symantec”); Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.659 Page 27 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 19 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT Stanwood v. Mary Kay, Inc., 941 F. Supp. 2d 1212, 1218 (C.D. Cal. 2012) (finding the plaintiff had no standing to sue based on a website where “[s]he has not alleged that she viewed any of those sources, and therefore cannot link her injuries to those misrepresentations”).6 Indeed, “[t]o demonstrate standing ‘named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’” In re Ditropan XL, 529 F. Supp. 2d 1098, 1107 (N.D. Cal. 2007) (quoting Lewis v. Casey, 518 U.S. 343, 347 (1996)); see also In re Tobacco II Cases, 46 Cal. 4th 298, 306 (2009) (“[A] class representative … must demonstrate actual reliance on the allegedly deceptive or misleading statements, in accordance with well-settled principles regarding the element of reliance in ordinary fraud actions.”). 1. Plaintiff Lacks Standing to Bring Claims on Behalf of Online Purchasers In its Order dismissing the SAC (Dkt. 21), this Court explained that although Plaintiff had alleged that NY&C engaged in deceptive pricing online, “Nowhere does Plaintiff allege in her SAC that she ever visited NY&C’s online store or provide specific details of any online false representations.” (Dkt. 21 at 12.) In the TAC, Plaintiff does not claim to have visited NY&C’s website, let alone to have purchased an item from the site. She thus lacks standing to bring claims based on NY&C’s online pricing. 6 See also In re Ferrero Litig., 794 F. Supp. 2d 1107, 1112 (S.D. Cal. 2011) (“based on the allegations in the consolidated complaint, Plaintiffs did not actually rely on the statements on Nutella®’s website before making their purchases and lack standing to challenge these statements under the UCL, FAL, and CLRA.”); Reed v. NBTY, Inc., 2014 WL 12284044, at *7 (C.D. Cal. Nov. 18, 2014) (“It is undisputed that neither [Plaintiff] viewed the labels of NitroPump or NOS Pump or visited Defendants’ websites prior to purchasing the Products … the named plaintiffs do not have standing to pursue claims on the basis of representations made on the labels or on Defendants’ websites.”); Bruton v. Gerber Products Co., 961 F. Supp. 2d 1062, 1091 (N.D. Cal. 2013) (same); McCrary v. Elations Co., LLC, 2013 WL 6403073, at *8 (C.D. Cal. July 12, 2013) (same); Wilson v. Frito- Lay N. Am., Inc., 961 F. Supp. 2d 1134, 1143 (N.D. Cal. 2013) (same). Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.660 Page 28 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 20 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT In Branca v. Nordstrom, Inc., No. 14CV2062-MMA JMA, 2015 WL 1841231, at *4 (S.D. Cal. Mar. 20, 2015), the court did not allow the plaintiff to base her claims on alleged misrepresentations from Nordstrom Rack’s website, because the plaintiff did not claim to have ever viewed such representations: [T]o the extent Plaintiff’s claims arise from Nordstrom’s website or from the Nordstrom Rack name itself, the Court finds Plaintiff has not sufficiently alleged economic injury or actual reliance for the purpose of standing. … Plaintiff does not allege that he observed-or was even aware of-Nordstrom Rack’s website. Thus, Plaintiff alleges no facts to demonstrate, or even suggest, that he had would not have purchased the items absent the representations on the website. See also Azimpour, RJN, Exhibit A, at *7 (“[E]ven though Plaintiff alleges that the pillow was advertised online at a similar price as of the filing of his FAC, Plaintiff does not allege that he viewed and relied on this advertisement…”). Like in Branca and Azimpour, Plaintiff has not alleged any injury caused by NY&C’s online pricing, and thus lacks standing to bring claims based on such pricing. Additionally, the court should strike the references to online pricing, including all references to the Wayback Machine, which only apply to online pricing. 2. Plaintiff Lacks Standing to Bring Claims on Behalf of Outlet Store Customers For similar reasons, Plaintiff lacks standing to bring claims on behalf of NY&C customers who shopped only at NY&C outlet stores or who otherwise relied on “Our Prices.” Plaintiff does not claim to have ever shopped at a NY&C outlet store, or to have ever seen or relied on an “Our Price” listed on a price tag or anywhere else. Plaintiff was not injured by NY&C’s outlet pricing, and lacks standing to bring these claims. References to NY&C’s outlets and “Our Prices” should likewise be struck from the TAC. Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.661 Page 29 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 21 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT 3. Plaintiff Lacks Standing to Bring Claims on Behalf of Customers who Purchased Non-Clearance Items Although Plaintiff claims to have bought a single item on clearance, she purports to represent anyone who has bought something on sale from NY&C. She lacks standing to bring such claims. Plaintiff suggests that all NY&C discounts are the same, (see TAC ¶ 2, defining “regular price” merely to mean “the price listed on the original price tag”), but the face of the TAC makes clear that this is not the case. Plaintiff claims to have purchased a clearance item, as evidenced by: (a) Plaintiff’s receipt, which describes the item as being “final sale,” “RL” (redline), and “clearance,” (TAC, p. 33); and (b) Plaintiff’s claim that “there was a redline drawn through the price tag price with a red marker.” (TAC ¶ 14.) Plaintiff recognizes that clearance items are advertised differently from other items. (See TAC, p. 33, showing tag that was not marked with a red line.) Plaintiff alleges no basis on which the Court could conclude that customers interpret clearance and promotional (including temporary) sales in the same way. Indeed, several states recognize that clearance sales are different by creating special exceptions for retailers trying to sell out of clearance merchandise. See, e.g., Okla. Stat. tit. 15, § 598.6(a)(1); Wis. Stat. Ann. § 100.30(6)(1); 6 R.I. Gen. Laws Ann. § 6-13.2-5(3); 53 Pa. Stat. Ann. § 4471-5(b); N.Y. GBL § 584. The differences in how clearance and non-clearance items are advertised by NY&C and interpreted by consumers prevent Plaintiff from representing anyone who did not buy a clearance item. See, e.g., Bruton v. Gerber Prods., 961 F.Supp.2d 1134 (N.D.Cal.2014) (dismissing claims regarding specific categories of unpurchased products that she determined were not “substantially similar to any of the Purchased Products.”); Miller v. Ghirardelli, 912 F. Supp. 2d 861, 872 (N.D. Cal. 2012) (that although the representations at issue were similar across a series of products, the plaintiff did not have standing to sue on behalf of products he did not purchase, in part because “the products are too different.”). Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.662 Page 30 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 22 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT VI. THE COURT SHOULD DENY PLAINTIFF LEAVE TO FURTHER AMEND HER COMPLAINT In “the Ninth Circuit ... plaintiffs do not enjoy unlimited opportunities to amend their complaints.” Stone v. Conrad Preby’s, 2013 WL 139939, at *2 (S.D. Cal. Jan. 10, 2013) (citing McHenry v. Renne, 84 F.3d 1172, 1174 (9th Cir. 1996)). A district court may in its discretion deny leave to amend “due to undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (internal citation and quotation marks omitted). “The district court’s discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.” Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1072 (9th Cir. 2008); see also Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to its claims, ‘[t]he district court’s discretion to deny leave to amend is particularly broad.’”). This is Plaintiff’s fourth attempt to state a claim that NY&C’s pricing is deceptive, and yet it is no closer to stating a claim. Allowing Plaintiff a further opportunity to amend would be futile, and invite chicanery. She clearly cannot recall the circumstances of her purchase, and giving her another chance will not jog her memory. VI. CONCLUSION For the foregoing reasons, NY&C respectfully requests that the Court grant its motion to dismiss for lack of standing and for failure to state a claim for which relief can be granted, without leave to amend. In the alternative, NY&C requests that the Court strike all allegations by which Plaintiff seeks to represent a Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.663 Page 31 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84322734v6 23 Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ MOTION TO DISMISS THE THIRD AMENDED COMPLAINT nationwide class, online or outlet customers, or customers who bought items that were not on clearance. DATED: February 27, 2017 SEDGWICK LLP By: /s/ Stephanie Sheridan Stephanie Sheridan Attorneys for Defendants NEW YORK & COMPANY, INC. and NEW YORK & COMPANY STORES, INC. Case 3:16-cv-00369-BAS-JMA Document 25 Filed 02/27/17 PageID.664 Page 32 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84397482v1 1. Case No. 3:16-cv-00369-BAS-JMA DECLARATION OF STEPHANIE SHERIDAN IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SEDGWICK LLP STEPHANIE A. SHERIDAN, State Bar No. 135910 stephanie.sheridan@sedgwicklaw.com ANTHONY J. ANSCOMBE, State Bar No. 135883 anthony.anscombe@sedgwicklaw.com MEEGAN B. BROOKS, State Bar No. 298570 meegan.brooks@sedgwicklaw.com 333 Bush Street, 30th Floor San Francisco, CA 94104-2834 Telephone: 415.781.7900/Facsimile: 415.781.2635 Attorneys for Defendants NEW YORK & COMPANY, INC. and NEW YORK & COMPANY STORES, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA MONICA RAEL, on behalf of herself and all others similarly situated, Plaintiff, vs. NEW YORK & COMPANY, INC., a DELAWARE corporation, NEW YORK & COMPANY STORES, INC., a NEW YORK corporation, and DOES 1- 50, inclusive, Defendants. Case No. 3:16-cv-00369-BAS-JMA DECLARATION OF STEPHANIE SHERIDAN IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE PLAINTIFF’S THIRD AMENDED COMPLAINT Judge: Cynthia A. Bashant Date: Monday, April 3, 2017 NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Case 3:16-cv-00369-BAS-JMA Document 25-1 Filed 02/27/17 PageID.665 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84397482v1 2. Case No. 3:16-cv-00369-BAS-JMA DECLARATION OF STEPHANIE SHERIDAN IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS DECLARATION OF STEPHANIE SHERIDAN I, Stephanie Sheridan, declare as follows: 1. I am an attorney duly admitted to practice law in the State of California, including before this Court. I am a partner with the law firm of Sedgwick LLP, counsel of record for New York & Company, Inc. and New York & Company Stores, Inc. in this case. I have reviewed the necessary pleadings in this action and have personal knowledge of the facts set forth in this Declaration, and I could and would testify competently thereto if called upon to do so. 2. My firm has conducted research on the various consumer protection statutes in the fifty states and the District of Columbia. A chart setting forth the differences in the applicable law is attached hereto as Exhibit A. I declare on penalty of perjury under the laws of the United States that the foregoing is true and correct, and that this declaration was executed this twenty- seventh day of February, 2017, in San Francisco, California. DATED: February 27, 2017 By: /s/ Stephanie Sheridan______ Stephanie Sheridan Case 3:16-cv-00369-BAS-JMA Document 25-1 Filed 02/27/17 PageID.666 Page 2 of 2 Exhibit A Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.667 Page 1 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Alabama Deceptive Trade Practices Act Ala. Code §§ 8-19- 1, et seq. Private right of action permitted, but Ps must send a demand letter fifteen days before filing suit. The attorney general and district attorneys have power to investigate prohibited conduct and start legal proceedings. Class actions prohibited unless brought by the state's Attorney General. SOL expires one year from discovery, but no later than four years after the incident - unless the contract or warrant is for more than three years then no more than one year from the date of expiration or more than one year after discovery, whichever occurs first. "Monetary damages" are required for showing of injury. NA Reliance not controlling inquiry, but misconduct must cause monetary damage. "A representation is deceptive if it contains a material claim or omission that is reasonably like to mislead consumers acting reasonably under the circumstances to their detriment. A representation or omission is material if it is of the kind usually relied upon by a reasonably prudent person." Defense to culpability if defendant did not knowingly commit violation of the act. Greater of actual damages or$100; up to three times actual damages in discretion of the court; no prejudgment interest unless recovery based in contract; punitive damages available; attorney's fees mandatory. Prefiling demand required and must waive any other cause of action arising out of transaction to bring action under the act. Ala. Code §§ 8-19-1, 8-19-4, 8-19-10 Ala. Code § 8- 19-10(f) Ala. Code § 8- 19-14 Ala. Code § 8-19- 10(a)(1) Ala. Code § 8-19- 10(a) Ala. Code § 8- 19-13 Ala. Code §§ 8-8-10, 8- 19-10(a)(1)-(2) Ala. Code §§ 8-19- 10(e), 8-19-15 Ex Parte Exxon Corp., 725 So. 2d 930, 933 (1998); Billions v. White& Stafford Furniture Co., 528 So. 2d 878, 880 (Ala. Civ. App. 1988). Ex Parte Exxon Corp., 725 So. 2d 930, 933 (1998). Billions v. White & Stafford Furniture Co., 528 So. 2d. 878, 880 (Ala. Civ. App. 1988). F.T.C. v. Tachman, 318 F.3d1273, 1281 (11th Cir.2003); McGregor v. Chierico, 206 F.3d 1378, 1388 (11th Cir. 2000). F.T.C. v. Accent Mktg., Inc., No. 02-405, 2002 WL 31257708 (S.D. Ala. July 1, 2002) (internal citations omitted). Strickland v. Katko Mfg., Inc., 512 So. 2d 714, 717 (1987); Sam v. Beaird, 685 So. 2d 742, 744 (Ala. Ct. App. 1996). Orkin Exterminating Co., Inc. v. Jeter, 835 So. 2d 25, 43 (2001). Deerman v. Fed. Home Loan Mortg. Corp., 955 F. Supp. 1393 (N.D. Ala.1997). Alaska Unfair Trade Practices and Consumer Protection Act Alaska Stat. §§45.50.471, et seq. The attorney general may bring suit. Private right of action permitted. Class actions arguably allowed. Two years from discovery of violation. Ascertainable loss of money or property is required for a private right of action. Actual deception not required. Right of action requires ascertainable loss incurred as a result of violation. Prohibits: "knowingly concealing, suppressing, or omitting a material fact with intent that others rely upon the concealment, suppression, or omission in connection with the sale or advertisement of goods or services whether or not a person has in fact been misled, deceived or damaged." Intent to deceive need not be proven. However, intent that others rely upon the concealment, suppression, or omission in connection with the sale or advertisement of goods is needed. Greater of three times actual damages or $500; prejudgment interest not exempted; discretionary punitive damages allowed; attorney's fees allowed; injunctive relief available; treble damages for willful violations. Written notice prior to action for injunction required; 50% of punitive damages go to the state. Alaska Stat. §§45.50.531(a), (c) Alaska Stat. §45.50.531(f) Alaska Stat. §§45.50.471, 45.50.531(a) Alaska Stat. §§45.50.471, 45.50.531(a) Alaska Stat. § 45.50.531(a) Alaska Stat. § 45.50.471(b)(12) Alaska Stat. §45.50.471(b)(12) Alaska Stat. §§ 09.30.070,45.50.53 1(a), 45.50.535 Alaska Stat. §§ 45.50.531(i),45.50.53 5 Weimer v. Continental Car & Truck, LLC, 237P.3d 610 (2010); Neese v. Lithia Chrysler Jeep of Anchorage, Inc., 210P.3d 1213 (2009). Garrison v. Dixon, 19P.3d 1229, 1235 n.22 (2001) ("A person who suffers an ascertainable loss of money or property as a result of another person's act or practice declared unlawful by AS45.50.471 may bring a civil action.") C.f., State v. O’Neill Investigations Inc., 609P.2d 520, 534-35 (1980) (finding that "actual injury as a result of the deception is not required." "All that is required is a showing that the acts and practices were capable of being interpreted that way.") Odom v. Fairbanks Mem'l Hosp., 999 P.2d123, 132 (2000); State v. O'Neill Investigations, Inc., 609 P.2d 520, 535 (1980). State v. O'Neill Investigations Inc., 609 P. 2d 520, 524 (1980). Arizona Consumer Fraud Act The attorney general has the right to enforce the Consumer Fraud Act. Private right of action for Class actions permitted. One year from discovery of violation. Actual damage or injury required. Reliance required, but it need not be reasonable; proximate causation of injury Prohibits the use or employment of any deception, deceptive act or practice, fraud, false pretense, false promise, Wrongful concealment must be "intent that others rely." However, specific Permits compensatory damages; however no statutory damages in private actions; punitive damages if Requires: an enrichment, an impoverishment, connection between enrichment and Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.668 Page 2 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Ariz. Rev. Stat. Ann. §§44-1521, et seq. injured individuals. also required. misrepresentation, or concealment of a material fact. intent not required - intent to do the act is sufficient. violation is wanton, reckless or involves spite or ill will; and attorney's fees if fraud claim arises out of contract (court has discretion). impoverishment, absence of justification for enrichment and impoverishment, and absence of remedy provided by law. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain, or unjust enrichment claim requires that plaintiff lacks a legal remedy. Ariz. Rev. Stat. Ann. § 12-541(5) Ariz. Rev. Stat. Ann. § 44- 1522(A) Ariz. Rev. Stat. Ann. § 44-1522(A) Ariz. Rev. Stat. Ann. § 12-341.01(A) Sellinger v. Freeway Mobile Home Sales, Inc.,521 P.2d 1119, 1122 (1974); Haisch v. Allstate Ins. Co., 5 P.3d 940, 944 (Ariz. Ct. App. 1994). Sellinger v. Freeway Mobile Home Sales, Inc.,521 P.2d 1119, 1122 (1974); Haisch v. Allstate Ins. Co., 5 P.3d 940, 944 (Ariz. Ct. App. 1994). Murry v. W. Am. Mortg. Co., 604 P.2d 651, 654 (Ariz. Ct. App. 1979); Alaface v. Nat'l Inv. Co.,892 P.2d 1375, 1381 (Ariz. Ct. App. 1994). Holeman v. Neils, 803F.Supp. 237, 242 (D. Ariz.1992); Nataros v. Fine Arts Gallery of Scottsdale, Inc., 612P.2d 500, 504 (Ariz. Ct. App. 1980). Winkler v. DTE, Inc., 205 F.R.D. 235, 242 (D. Ariz. 2001); Holeman v. Neils,803 F. Supp. 237, 242 (D. Ariz. 1992); Kuehn v. Stanley, 91 P.3d 346, 351 (Ariz. Ct. App. 2004); Dunpal v. Jimmy GMC of Tuscon, Inc., 666 P.2d 83,87 (Ariz. Ct. App. 1983);Peery v. Hansen, 585 P.2d 574, 578 (Ariz. Ct. App.1978). Flagstaff Med. Ctr., Inc. v. Sullivan, 773 F. Supp.1325, 1361-62 (D. Ariz.1991), aff'd in part, rev'd in part by 962 F.2d 879 (9th Cir. 1992); Alaface v. Nat'l Inv., Co., 892P.2d 1375, 1380 (Ariz. Ct. App. 1994); Cearley v. Wieser, 727 P.2d 346,348 (Ariz. Ct. App. 1986); State v. Goodyear Tire & Rubber Co., 626 P.2d1115, 1118 (Ariz. Ct. App. 1981). Howell v. Midway Holdings, Inc., 362 F. Supp. 2d 1158,1165 (D. Ariz. 2005); Holeman v. Neils, 803 F. Supp. 237, 242-43 (D. Ariz. 1992); Linthicum v. Nationwide Life Ins. Co.,723 P.2d 675, 680 (1986); Bennett v. Appaloosa Horse Club, 35 P.3d 426, 432 (Ariz. Ct. App. 2001); Nataros v. Fine Arts Gallery ofScottsdale, Inc., 612 P.2d 500,504 (Ariz. Ct. App. 1980);Peery v. Hansen, 585 P.2d574, 578 (Ariz. Ct. App. 1978) . Cmty. Guardian Bank v. Hamlin, 182 Ariz. 627, 898 P.2d 1005 (Ct. App. 1995), corrected (July 10, 1995)(pleading requirements; Brooks v. Valley Nat’l Bank, 548 P.2d 1166, 1171 (Ariz. 1976) (affirming dismissal of unjust enrichment claims where plaintiff received the benefit of the bargain); US Life Title Co. of Ariz. v. Gutkin, 732 P.2d 579, 585 (Ariz. Ct. App. 1986); Trustmark Ins. Co. v. Bank One, Arizona, NA, 48 P.3d 485, 491 (Ariz. Ct. App. 2002) (“To establish a claim for unjust enrichment, a party must show . . . the absence of a legal remedy.”). Arkansas Deceptive Trade Practices Act Ark. Code. Ann §§ 4-88-101, et seq. The attorney general may bring an action. Private right of action for any person actually injured; private right of action for enhanced penalties only for elderly and disabled persons. Class actions permitted. Five years from the violation. Actual damage or injury required. Right of action requires actual damage or injury incurred as a result of a violation of the act. Prohibits acts, use, or employment by any person of any deception, fraud, or false pretense or concealment of a material fact. Prohibits making knowingly false representations of benefits of product; prohibits act, use, or employment by any person of any deception, fraud, or false pretense or concealment with intent that others reply. Allows only compensatory damages and reasonable attorney's fees; however, allows for punitive damages for elderly and disabled persons. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.669 Page 3 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Ark. Code Ann. §§ 4- 88-113(f), 4-88-204 Ark. Code Ann. § 4- 88-115 (2015). Ark. Code Ann. §§ 4- 88-113(f), 4-88-204. Ark. Code. Ann. § 4- 88-113(f) Ark. Code. Ann. § 4-88-108(2) Ark. Code Ann. §§ 4-88- 107(a)(1), 4-88- 108(2) Ark. Code Ann. §§ 4-88- 113(f)& 4-88-204 Lenders Title Co. V. Chandler, 186 S.W.3d 695, 702- 04 (2004). Frein v. Windsor Weeping Mary LP, 2009 Ark. App. 774, at *7-8 (Ark. Ct. App. 2009). California (I) Consumers Legal Remedy Act Cal. Civ. Code §§ 1750, et seq. Private right of action permitted, but limited to consumers who purchased product for personal, family or household purposes. Class action permitted. Three years from date of improper practice. Requires some showing of "any damage". Causation required as damages must be "as a result" of the unlawful practice. Reliance required where claim is based on fraudulent conduct; only permits a classwide inference of causation and reliance where a single, material misrepresentation was made directly to each class member. Materiality required. A misrepresentation is material if "it induced the plaintiff to alter his position to his detriment. Stated in terms of reliance, materiality means that without the misrepresentation, the plaintiff would not have acted as he did. It must be shown that the plaintiff actually relied upon the misrepresentation; i.e., that the representation was 'an immediate cause of his conduct which alters his legal relations' and that without such representations, he would not, in all reasonable probability, have entered into the contract or other transaction.'" No scienter requirement; however, violation must be intentional to receive damages. Greater of actual damages or$1,000 in a class action; injunctive relief permitted; prejudgment interest allowed; punitive damages allowed; attorney's fees available. Requires 30 day pre-suit notice and opportunity to cure. Cal. Civ. Code §§ 1761(d), 1780, 1781 Cal. Civ. Code §§ 1780,1781 Cal. Civ. Code § 1783 Cal. Civ. Code § 1780(a) Cal. Civ. Code § 1780(a) Cal. Civ. Code §§1770(a), 1784 Cal. Civ. Code §§ 1780(a), 1780(c), 1780(e) Cal. Civ. Code § 1782 Gonzalez v. Proctor & Gamble Co., 247 F.R.D. 616, 624-25 (S.D. Cal.2007); Vasquez v. Sup. Ct.,4 Cal. 3d 800, 814 (1971); Buckland v. Threshold Enters., Ltd., 155 Cal. App.4th 798, 811 (Cal. Ct. App.2008); Caro v. Proctor & Gamble Co., 18 Cal. App.4th 644, 668- 69 (Cal. Ct. App. 1993). Caro v. Procter & Gamble Co., 18 Cal. App. 4th 644, 667 (Cal. Ct. App.1993); Lacher v. Sup. Ct., 230 Cal. App. 3d 1038, 1049 (Cal. Ct. App.1991). California (II) Unfair Competition Law Cal. Bus. & Prof. The attorney general, district attorneys, and city and county counsel may bring actions to enforce. Private right of action Class certification required for private claims. Four years from accrual of action; three years for false advertising claims. Actual injury required. Only permits a classwide inference of causation where single, material misrepresentatio Plaintiff must establish causation and actual reliance in accordance with principles of ordinary fraud actions. Materiality required; duty to disclose required for omission based claim. No mens rea requirement under the Unfair Competition Law. No civil damages in private cause of action. Damages not permitted, only equitable relief including restitution. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Allows claim to be based on "unfair" conduct, but California courts have not reached a consensus on the standard of Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.670 Page 4 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Code,§§ 17200 et seq. permitted for those injured as a result of defendant's conduct. n was directly made to each class member. For a fraud prong claim under the UCL based on an alleged misrepresentatio n in a long-term advertising campaign, the misrepresentatio n must have been material. No attorney's fees, unless available through contract or other statute. Unjust enrichment is not a standalone cause of action. "unfairness" to be used in consumer actions. Cal. Bus. & Prof. Code §§ 17203, 17204 Cal. Bus. & Prof. Code §§ 17203, 17204 Cal. Bus. & Prof. Code §17208; Cal. Civ. Proc. Code §§ 338(a), 338(h) Cal. Bus. & Prof. Code §§ 17203, 17204 Cal. Bus. & Prof. Code §§ 17203, 17205, 17206 Melchior v. New Line Prods., Inc., 106 Cal. App. 4th 779, 792 (2003); McKell v. Wash. Mut., Inc., 142 Cal. App. 4th 1457, 1490 (2006); Brazil v. Dell Inc., No. C–07– 01700 RMW, 2010 WL 5258060, * 4 (N.D. Cal. Dec. 21, 2010); Levine v. Blue Shield of Cal., 189 Cal. App. 4th 1117, 1138 (2010) Arias v. Super. Ct., 46 Cal. 4th 969, 975 (2009); Californian's for Disability Rights v. Mervyn's, LLC, 39 Cal.4th 223, 227, 233 n.4 (2006); Hall v. Time, Inc., 158 Cal.App.4th 847, 852 (2008) Gonzalez v. Procter & Gamble Co., 247 F.R.D. 616, 624-26 (S.D. Cal. 2007); In re Tobacco II Cases, 46 Cal. 4th 298, 326-27 (2009); Vasquez v. Sup. Ct., 4 Cal. 3d 800,814 (1971); Caro v. Proctor & Gamble Co.,18 Cal. App. 4th 644, 668-69 (Cal. Ct. App. 1993). In re Tobacco II Cases, 46 Cal. 4th 298, 306 (2009) (holding that private plaintiffs must demonstrate "actual reliance . . . in accordance with well- settled principles regarding the element of reliance in ordinary fraud actions.") Berryman v. Merit Prop. Mgmt., Inc., 152 Cal. App. 4th 1544, 1556-57 (Cal. Ct. App. 2007); Daugherty v. Am. Honda Motor Co, Inc., 144 Cal. App.4th 824, 839 (Cal. Ct. App. 2006); Caro v. Procter & Gamble Co., 18 Cal. App. 4th 644, 667 (Cal. Ct. App.1993). In re Tobacco II Cases, 46 Cal. 4th 298, 306 (2009); State Farm Fire& Cas. Co. v. Sup. Ct., 45Cal. App. 4th 1093, 1105 (Cal. Ct. App. 1996). Korea Supply v. Lockheed Martin Corp., 29 Cal. 4th1134, 1144 (2003). Peterson v. Cellco P’ship, 164 Cal. App. 4th 1583 (4th Dist. 2008) (holding that the trial court properly sustained defendant’s demurrer to plaintiffs’ unjust enrichment claim because plaintiffs received the benefit of the bargain). See generally Bardin v. Daimler-Chrysler Corp., 136Cal. App. 4th 1255, 1265-74 (Cal. Ct. App. 2006) (applying several definitions of "unfair" to affirm dismissal of unfair competition claim and urging CA legislature and Supreme Court to clarify correct formulation governing consumer cases.) California (III) False Advertising Law Cal. Bus. & Prof. Code§§ 17500, et seq. Permits any person acting for the interests of itself, its members, or the general public, to initiate an action for restitutionary and/or injunctive relief against a person or business entity who has engaged in any unlawful, unfair, or fraudulent business actor practice or unfair, deceptive, Class certification required for private claims. 3 years for false advertising claims. Consumers must allege that they suffered damages as a result of the use or employment by any person of a method, act, or practice declared to be unlawful pursuant to the statute. The court may order relief without individualized proof of deception, injury, and reliance if it The statute affords protection against the probability or likelihood as well as the actuality of deception or confusion. Consumers allege that they suffered actual damage as a result of the defendant's actions. An inference of reliance would arise as to an entire class as long as material misrepresentations were made to the class members. Materiality is generally judged by a reasonable person standard, meaning that a misrepresentation is deemed material if a reasonable person would attach importance to its existence or nonexistence in determining his choice of A violation of this statute may be committed without any specific intent. "Any statement which is deceptive or merely misleading, without intent to deceive, violates the statute." Private individuals who bring suit are limited to restitution and equitable relief. Public officers can seek civil penalties capped at $2,500 per violation. The Attorney General has only one cause of action against a particular defendant for violating this Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.671 Page 5 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER untrue, or misleading advertising of any act prohibited by Chapter 1 (commencing with Cal. Bus. & Prof. Code § 17500). determines that such a remedy is necessary to prevent the use or employment of the unfair practice. action in the transaction in question. section, but the amount of civil penalties which may be imposed is dependent upon the number of violations committed. Public officers can seek civil penalties capped at $6,000 per violation for violating injunctions granted by the act. Cal. Bus. & Prof. Code §17500; Cal. Civ. Proc. Code §§ 338(a), 338(h) Cal. Bus. & Prof. Code §§ 17535.5, 17536 Rosales v. Citibank, 133F. Supp. 2d 1177, 1182 (N.D. Cal. 2001). Cole v. Asurion Corp .,267 F.R.D. 322, 331 (C.D. Cal. 2010). In re Toyota Motor Corp., 790 F. Supp. 2d1152, 1169-70 (C.D. Cal.2011); People v. Dollar Rent- A Car Sys., 211 Cal. App. 3d 119, 129- 31(Cal. Ct. App. 1989). In re Toyota Motor Corp.,790 F. Supp. 2d 1152, 1169-70 (C.D. Cal. 2011); People v. Toomey, 157 Cal. App.3d 1, 18 (Cal. Ct. App.1984). In re Toyota Motor Corp., 790 F. Supp. 2d 1152, 1169-70 (C.D. Cal. 2011). People ex rel. Mosk v. Lynam, 253 Cal. App. 2d959, 966 (Cal. Ct. App.1967); People v. Wahl,39 Cal. App. 2d Supp.771, 773 (Cal. App. Dep’t Sup. Ct. 1940). Rosales v. Citibank, 133 F. Supp. 2d 1177, 1182 (N.D. Cal.2001); Chern v. Bank of America, 15 Cal. 3d 866, 876 (1976); People ex rel. Mosk v. Lynam, 253 Cal. App. 2d 959,966 (Cal. Ct. App. 1967). Colorado Consumer Protection Act Colo. Rev. Stat. Ann.§§ 6-1-101, et seq. The attorney general and the district attorneys have the power to enforce the Act. Private right of action available too. Class actions permitted. Three years from violation (last instance), plus one year if defendant caused the delay. Requires injury in fact, caused by the challenged practice. False representation must induce party to act, refrain from acting, or have the capacity or tendency to attract consumers. Prohibits concealment of material information concerning goods if such a failure to disclose was intended to induce the consumer to enter into a transaction. Certain violations- including falsely representing benefits of a product-must be made knowingly. In a class action, only actual damages are permitted. In an individual action, there is a statutory minimum of $500; prejudgment interest is allowed; punitive damages allowed up to three times actual damages. Reasonable attorney's fees are allowed. Plaintiffs must demonstrate alleged deceptive practice significantly impacts the public as actual or potential customers. If claims are groundless or otherwise improper, then plaintiff is liable for defendant's fees and costs. Colo. Rev. Stat. Ann. §§ 6-1-103, 6-1-105, 6-1-113 Colo. Rev. Stat. Ann. § 6-1-113 Colo. Rev. Stat. Ann. § 6-1-115 Colo. Rev. Stat. Ann. § 6-1-113(1)(a) Colo. Rev. Stat. Ann. § 6-1- 105(1)(u) Colo. Rev. Stat. Ann. §§ 6-1- 105(1)(e),(g),(u) Colo. Rev. Stat. Ann. §§ 6-1-113(1)(a), 6-1- 113(2), 6-1-113(2)(a), 6- 1-113(3) Colo. Rev. Stat. Ann. §6-1-113(3) Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59, 63-64 (2005); Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 146-47 (2003). Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274, 281 (Colo. Ct. App. 1993). Hall v. Walter, 969 P.2d 224, 235 (1998). Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d. 142,147-48 (2003). Lexton-Ancira Real Estate Fund, 1972 v. Haller, 826 P.2d 819, 822-24 (1992). Hall v. Walter, 969 P.2d 224, 235 (1998). Connecticut Unfair Trade Practices Act Conn. Gen. Stat. Ann.§§ 42-110a, et Private right of action. Class permitted only on behalf of Connecticut residents or individuals injured in Connecticut. Three years after the violation occurred. Requires ascertainable loss of money for private right of action. Reliance not required. Materiality not required because misrepresentation need not be part of the basis for the bargain. Not required. Permits actual and injunctive relief; punitive damages and attorney's fees within the discretion of the court (dependent upon proof of reckless No jury trial right. Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.672 Page 6 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER seq. indifference to the rights of others or an intentional or wanton violation of those rights). Conn. Gen. Stat. Ann. §42-110g(b) Conn. Gen. Stat. Ann. §42-110g(b) Conn. Gen. Stat. Ann. §42-110g(f) Conn. Gen. Stat. Ann. §42-110g(a) Conn. Gen. Stat. Ann. §§ 42-110g(a), 42- 110g(d) Izzarelli v. R.J. Reynolds Tobacco Co., 117 F.Supp.2d 167, 176 (D. Conn.2000); Solomon v. WMN Assocs., Inc., 1994 WL 597390, at *6 (Conn. Super. Ct. Oct. 20, 1994). Izzarelli v. R.J. Reynolds Tobacco Co., 117 F.Supp. 2d 167, 176 (D. Conn.2000). Cheshire Mortg. Serv., Inc. v. Montes, 612 A.2d 1130, 1144 (Conn. 1992); Calandro v. Allstate Ins. Co., 778 A.2d 212, 221 (Conn. App. Ct. 2001); Muntz v. Kraus, 757 A.2d 1207,1214 (Conn. App. Ct.2000). Gargano v. Heyman, 525 A.2d 1343, 1347 (1987). Assoc. Invest. Co., v. Williams Assocs., 645 A.2d 505, 512 (1994). Delaware Consumer Fraud Act Del. Code. Ann. tit. 6,§§ 2511, et seq. Private right of action allowed. Attorney general may also enforce the act. Class action permitted to any victim of a violation of Subchapter II. Three years from discovery of violation. Neither deception nor injury is required elements under the act. However, monetary recovery is based on damages. Neither deception nor injury is required elements under the act. However, monetary recovery is based on damages. Reliance not required. Prohibits concealment of a material fact with the intent that others would rely on that concealment. Neither intent to make a deceptive or untrue statement, nor intent to induce reliance required, however some concealment claims require intent that others rely on the concealment at issue. Actual damages allowed; punitive damages allowed only in cases where compensatory damages are available and where the fraud was gross, oppressive, and aggravated or involves a breach of a trust or confidence. Injunctive relief permitted. Unjust enrichment requires (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) an absence of “justification” or “cause” for the enrichment and impoverishment; and (5) the absence of a remedy provided by law. (Same as AZ) SOL for unjust enrichment claims is 3 years. Del. Code. Ann. tit. 6, §§2525, 2532, 2533 . Del. Code Ann. tit. 10, §8106 (any action for statutory damages). Del. Code Ann. tit. 6, §2513(a) Del. Code Ann. tit. 6, §2513(a) Del. Code Ann. Tit. 6, § 2513(a) Del. Code. Ann. tit 6, §2513(a) Del. Code Ann. tit 6, §§ 2523, 2583 Jackson Nat’l Life Ins. Co. v. Kennedy, 741 A.2d 377, 393-94 (Del. Ch. 1999). Spark v. MBNA Corp.,157 F. Supp. 2d 330, 333 (D. Del. 2001). Pender v. DaimlerChrysler Corp., No. 03- 12022, 2004 WL 2191030, at *1 (Del. Sup. Ct. July 30, 2004); Pack & Process, Inc. v. Celotex Corp., 503 A.2d 646, 650 (Del. Super. Ct. 1985). Crosse v. BCBSD, Inc., 836 A.2d 492, 487 (2003); Stephenson v. Capano Dev. Inc., 462 A.2d 1069, 1077 (1983). Crosse v. BCBSD, Inc., 836 A.2d 492, 487 (2003); Stephenson v. Capano Dev. Inc., 462 A.2d 1069, 1077 (1983). Stephenson v. Capano Dev. Inc., 462 A.2d 1069, 1074 (1983); S & R Assocs. v. Shell Oil Co., 725 A.2d 431,440 (Del. Super. Ct. 1998); Pack & Process, Inc. v. Celotex Corp., 503 A.2d 646, 657 (Del. Super. Ct.1985). Brandywine Volkswagen, Ltd. V. State, 312 A.2d 632, 633 (1973). Stephenson v. Capano Dev. Inc., 462 A.2d 1069,1074 (1983); Pack & Process, Inc. v. Celotex Corp., 503 A.2d 646, 657 (Del. Super. Ct. 1985). Stephenson v. Capano Dev. Inc., 462 A.2d 1069, 1077 (1983). District of Columbia Consumer Private right of action - any person whether acting on behalf of himself or Class actions permitted. Three years. No actual deception or damage required. A merchant may A merchant may violate the act whether or not any deception Misrepresentation must be material and have tendency to mislead. Not settled. Once a consumer shows damages, the consumer may receive treble damages Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.673 Page 7 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Protection Procedures Act D.C. Code §§ 28- 3901,et seq. the general public may bring an action to enforce the Act. violate the act whether or not any consumer is in fact misled, deceived or damaged thereby. However, the district courts have standing requirements identical to those in Article III, requiring plaintiffs to suffer actual injury. actually takes place - "whether or not any consumer is in fact misled, deceived or damaged thereby." or$1,500 per violation, whichever is greater; attorney's fees; punitive damages in cases of outrageous or egregious wrongdoing proven "by clear and convincing evidence"; and an injunction. D.C. Code § 28- 3905(k)(1) D.C. Code § 12- 301(8) D.C. Code § 28- 3904 D.C. Code § 28-3904 D.C. Code § 28-3904(e) D.C. Code § 28- 3905(k)(1) Margolis v. U- Haul Int'l, Inc., No. 07-5245, 2009 D.C. Super. LEXIS 8, at *4 (D.C. Super. Ct. 2009) District Cablevision Ltd. P'ship v. Bassin, 828 A.2d 714, 725-26 728 (2003). Dahlgren v. Audiovox Commc’ns Corp., No. 2002 CA 007884 B, 2012 WL 2131937 (D.C. Super. Ct. March 15, 2012) (plaintiffs who receive the benefit of the bargain are not entitled to restitution). Florida Deceptive and Unfair Trade Practices Act Fla. Stat. Ann. §§501.201, et seq. Private right of action for anyone aggrieved by a violation of the act or anyone who has suffered a loss as a result of a violation of the Act. Class actions permitted. Four years. To recover damages, must show "actual damages" as a result of violation. However, right of action granted "without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation." Reliance and causation not required. Not required. Not required; however, must show that conduct is likely to mislead reasonable customers. Actual damages plus attorney's fees and costs; equitable relief available. Any party who is proven to have brought a frivolous, legally or factually meritless claim or claim for the purpose of harassment may be required to post bond in the amount which the court finds reasonable to indemnify the defendant for any damages incurred, including reasonable attorney's fees. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain, or if defendant has provided consideration for the benefit received. Unjust enrichment claim requires that plaintiff lack a legal remedy. Plaintiff must allege that violation of the Act occurred in Florida. Fla. Stat. Ann. § 501.211 Fla. Stat. Ann. § 501.211 Fla. Stat. Ann. § 95.11.(3)(f) Fla. Stat. Ann § 501.211(2) Fla. Stat. Ann. §§ 501.211, 501.211(3) Martinez v. Rick Case Cars, Inc., 278 F. Supp.2d 1371, 1373 (S.D. Fla.2003); PNR, Inc. v. Beacon Prop. Mgmt.,Inc., 842 So. 2d 773, 777 (2003). Barnhill v. Fla. Microsoft Anti- Trust Litig., 905 So.2d 195, 197 (Fla. Dist. Ct. App. 2005). Fitzpatrick v. Gen. Mills, Inc., 263 F.R.D. 687, 695 (S.D. Fla. 2010) (citing Rollins, Inc. v. Butland,951 So. 2d 860, 869 (Fla. Dist. Ct. App. 2006)). Davis v. Powertel, Inc., 776So. 2d 971, 973-74 (Fla. Dist. Ct. App. 2000); Latman v. Costa Cruise Lines N.V., 758 So. 2d 699,703 (Fla. Dist. Ct. App.2000). Davis v. Powertel, Inc., 776 So. 2d971, 973-74 (Fla. Dist. Ct. App. 2000). Davis v. Powertel, Inc.,776 So. 2d 971, 973-74 (Fla. Dist. Ct. App. 2000); W.S. Badcock Corp. v. Myers, 696 So. 2d 776,779 (Fla. Dist. Ct. App.1996). Prohias v. Pfizer, Inc., 485 F. Supp. 2d 1329, 1335 (S.D. Fla. 2007)); Am. Safety Ins. Serv., Inc. v. Griggs, 959 So. 2d 322, 331-32 (Fla. Dist. Ct. App. 2007). Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So. 2d 383, 390 (Fla. Dist. Amar Shakti Enters., LLC v. Wyndham Worldwide, Inc., No. 10-1857, 2011 WL3687855, at *3 (M.D. Fla. Aug. 22, 2011). Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.674 Page 8 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Ct. App. 1997);Am. Safety Ins. Serv., Inc. v. Griggs, 959 So. 2d 322, 331-32 (Fla. Dist. Ct. App. 2007); Am. Honda Motor Co. v. Motorcycle Info. Network, Inc., 390 F. Supp. 2d 1170, 1178 (M.D. Fla. 2005); Prohias v. Pfizer, Inc., 490 F. Supp. 2d 1228, 1236-37 (S.D. Fla. 2007) . Georgia Uniform Deceptive Trade Practices Act (Ga. Code Ann. §§ 10-1-370, et seq.) Fair Business Practices Act (Ga. Code Ann. §§10-1- 390, et seq.) Private right of action for injunctive relief under the Uniform Deceptive Trade Practices Act ("UDTPA"). Private right of action, but no class actions under the Fair Business Practices Act ("FBPA"). Prohibited under the FBPA. Four years from discovery under the UDTPA. Two years from discovery under the FBPA. Must establish likely to be damaged under the UDTPA. FBPA requires injury or damages. Reliance not required under the UDTPA. Reliance and causation required under the FBPA. Misrepresentation must cause a likelihood of confusion, but need not cause actual confusion under the UDTPA. Material omissions required under the FBPA. Intent to deceive not required under the UDTPA. Neither knowledge of deception nor intent to deceive required under FBPA. No civil damages under UDTPA, including statutory damages; only injunctive relief available; attorney's fees also permitted. FBPA permits recovery of actual damages, injunctive relief, and punitive damages if specific intent is shown; no statutory damages or prejudgment interest. Treble damages may be available if a violation is found to be intentional. FBPA requires presuit demand letter. FBPA requires administrator to be served with complaint and provided an opportunity to be heard in case. FBPA limits "consumers" to natural persons and "consumer transactions" to those involving goods for personal, family, or household purchases. Ga. Code Ann. §§ 10- 1-373(a), 10-1-399(a) Ga. Code Ann. § 10-1-399 Ga. Code Ann. §§ 9-3-31,10-1-401(a) Ga. Code Ann. §§ 10- 1-373, 10-1-399 Ga. Code Ann. §§ 10- 1-372(b), 10-1-399(a) Ga. Code Ann. § 10-1-373 Ga. Code Ann. §§ 10-1- 373(a),10-1-373(b), 10- 1-373(c), 10-1-399(a), 10-1-399(c) Ga. Code Ann. §§ 10-1-392(a)(6), 10- 1-392(a)(10),10-1- 399(b), 10-1-399(g) Kason Indus. Inc. v. Component Hardware Group, Inc., 120 F.3d 1199, 1204-05 (11th Cir. 1997). Kason Indus., Inc. v. Component Hardware Group, Inc., 120 F.3d 1199, 1200 (11th Cir.1997); Regency Nissan, Inc. v. Taylor, 391 S.E.2d 467, 470 (Ga. Ct. App.1990). Baranco, Inc. v. Bradshaw,456 S.E.2d 592, 594 (Ga. Ct. App. 1995); Regency Nissan, Inc. v. Taylor, 391S.E.2d 467, 470 (Ga. Ct. App. 1990); Zeeman v. Black, 273 S.E.2d 910, 916 (Ga. Ct. App. 1980). Looney v. M-Squared, Inc., 586 S.E.2d 44, 50-51 (Ga. Ct. App. 2003); Regency Nissan, Inc. v. Taylor, 391S.E.2d 467, 470 (Ga. Ct. App. 1990). Henderson v. Gandy, 608 S.E.2d 248, 252 (Ga. Ct. App. 2004); Regency Nissan, Inc. v. Taylor,391 S.E.2d 467, 470 (Ga. Ct. App. 1990). Moore v. Davis Motors, Inc. v. Joyner, 556 S.E.2d 137, 140 (2001); Catrett v. Landmark Dodge, Inc., 560 S.E.2d 101 (Ga. Ct. App. 2002); Conseco Fin. Serv. Corp. v. Hill, 556 S.E.2d 468, 473 (Ga. Ct. App.2001). Hawaii Unfair Practices Act Haw. Rev. Stat. §§ 480-1, et seq. The attorney general or the director of the Office of Consumer Protection may bring an action. Also, private right of action permitted. Right of action limited to consumers, defined as natural persons. Class action permitted. Four years from discovery. Suit for damages requires private damage. Monetary damage not required to obtain injunctive relief. Actual confusion or misunderstanding not required. In a suit for damages, violation must "cause" actual damage. Materiality required. A deceptive act or practice is: (1) a representation, omission, or practice; that (2) is likely to mislead consumers acting reasonably under the circumstances where; (3) the representation, omissions, or practice is material. A Intent not required for damages or for injunctive relief. A sum not less than $1,000 or three times actual damages, whichever is greater, unless plaintiff is an "elder" in which case it is the greater of $5,000 or three times damages; injunctive relief available; Unjust enrichment claim requires that plaintiff lacks a legal remedy. Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.675 Page 9 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER representation, omission or practice is considered "material" if it involves information that is important to the consumer and, hence, likely to affect their choice of, or conduct regarding, a product. Moreover, the ...test is an objective one, turning on whether the act or omission is likely to mislead consumers, as to information important to the consumers, in making a decision regarding the product or service. attorney's fees mandatory. In class actions, only compensatory damages are awarded; $1,000 minimum does not apply. Haw. Rev. Stat. Ann. §§ 480-1, 480-2, 480-13 Haw. Rev. Stat. Ann. §§480-1, 480-13 Haw. Rev. Stat. Ann. §480-24 Haw. Rev. Stat. Ann. §§ 480-13, 481A-4, 481A-3(b) Haw. Rev. Stat. Ann. § 480-13 Haw. Rev. Stat. Ann. §§ 480A-4, 480-2 Haw. Rev. Stat. Ann. §§ 480-13, 480-13(c)(1) Leibert v. Fin. Factors, Ltd., 788 P.2d 833, 837-38 (1990); Hunt v. FirstIns. Co. of Haw., 922P.2d 976, 985-86 (Haw. Ct. App. 1996); Beerman v. Toro Mfg. Corp., 615P.2d 749, 754 (Haw. Ct. App. 1980). Leibert v. Fin. Factors, Ltd., 788 P.2d 833, 837-38 (1990). Sambor v. Omnia Credit Servs., Inc., 183 F.Supp.2d 1234, 1244 (D. Haw.2002); Davis v. Wholesale Motors, 949P.2d 1026, 1038 (Haw. Ct. App. 1997) (elements for recovery under § 480-13(b)(1) are: (1) a violation of § 480-2; (2) injury to the consumer caused by such violation; and (3) proof of the amount of damages). Sambor v. Omnia Credit Servs., Inc., 183 F.Supp 2d1234, 1244 (D. Haw. 2002). Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 262 (Haw. 2006) Davis v. Wholesale Motors, 949 P.2d 1026, 1038 n.15 (Haw. Ct. App.1997). Cieri v. Leticia Query Realty, Inc., 905 P.2d 29 (1995); Liebert v. Fin. Factors, Ltd.,788 P.2d 833 (1990); Eastern Star, Inc. v. Union Bldg. Materials Corp., 712 P.2d 1148, 1151 (1985). Porter v. Hu, 169 P.3d 994, 1006-07 (Haw. Ct. App. 2007); Davis v. Four Seasons Hotel Ltd., No. 08- 00525, 2011 WL 5025521, at *6 (D. Haw. Oct. 20, 2011) (“Hawaii courts observe the principle that equitable remedies, like unjust enrichment, are only available when legal remedies are inadequate.”). Idaho Consumer Protection Act Idaho Code Ann. §§ 48-601, et seq. Private right of action permitted. Class action permitted. Two years from discovery. Requires "ascertainable loss" for private right of action. "Actual deception" not required; tendency to deceive is enough. Requires ascertainable loss incurred as a result of violation. Material omissions required. Knowledge of falsity required for affirmative representations. In an individual action, greater of actual damages or$1,000 and punitive damages if "repeated" or "flagrant;" prejudgment interest and injunctive relief available. Statutory minimum of damages of $1,000 must be entered if elements of statute are established. Mandatory attorneys' fees for prevailing plaintiff. Discretionary to defendant. Class action damages limited to "actual damages" or "a total for the class that may not exceed $1,000, whichever is greater. An action brought by an elderly or disabled person shall also recover from the offending party an enhanced penalty of$15,000 or treble the actual damages, whichever is greater. Idaho Code Ann. § Idaho Code Ann. Idaho Code Ann. § Idaho Code Ann. § 48- Idaho Code Ann. § Idaho Code Ann. § Idaho Code Ann. §§ 48- Idaho Code Ann. § Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.676 Page 10 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER 48-608 § 48-608 48-619 608 48-608 48-603 608(1), 48-608(5) 48-608(2) In re Wiggins, 273 B.R.839, 856-57 (Bankr. D. Idaho 2001); Yellowpine Water Users' Ass'n v. Imel, 670 P.2d 54, 56- 57(1983); Jackson v. Wood, 859 P.2d 378, 380 (Idaho Ct. App. 1993). State ex rel. Kidwell v. Master Distribs., Inc.,615 P.2d 116, 122-23 (1980). Jackson v. Wood,, 859 P.2d 378, 380 (Idaho Ct. App.1993). State ex rel. Kidwell v. Master Distribs., Inc., 615 P.2d 116, 122-23 (Idaho 1980). State ex rel. Kidwell v. Master Distribs., Inc.,615 P.2d 116, 122-23 (Idaho 1980). In re. Wiggins, 273 B.R. 839, 881-82 (Bankr. D. Idaho2001); Fenn v. Noah, 133 P.3d 1240, 1244-45 (2006); Israel v. Leachman, 72 P.3d 864 (2003); Mac Tools, Inc. v. Griffin, 126 Idaho 193, 196-98 (1994); Nalen v. Jenkins, 741 P.2d 366 (Idaho 1987). Illinois Consumer Fraud and Deceptive Business Practice Act 818 Ill. Comp. Stat. 5051/1, et seq. Private right of action permitted, but applies only to fraudulent transactions which take place "primarily and substantially" in Illinois. Class action permitted, but applies only to fraudulent transactions which take place "primarily and substantially" in Illinois. Three years from discovery. Actual injury required. Actual deception required. Proximate causation required. The deception must occur in the course of conduct involving trade and commerce and proximately cause the damage. Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material facts, with intent that others reply upon the concealment, suppression or omission of such material fact or the use or employment of any practice described in Section 2 of the "Uniform Deceptive Trade Practices Act," approved August 5, 1965 [815ILCS 510/2], in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. Intent to deceive is not required, but intent that consumer rely on the information is required. Statutory and compensatory damages permitted. Statute does allow for punitive damages under "other relief" provision. Grounds for relief must be alleged, including fraud, malice, or gross negligence indicating wanton disregard for the rights of others. Injunctive relief permitted. Attorneys' fees permitted. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Jury trial right does not exist in state court in certain cases. 815 Ill. Comp. Stat. Ann.505/10a 815 Ill. Comp. Stat. Ann.505/10a 815 Ill. Comp. Stat. Ann.505/10a(e) 815 Ill. Comp. Stat. Ann.505/10a 815 Ill. Comp. Stat. Ann.505/10a 815 Ill. Comp. Stat. Ann. 505/2 815 Ill. Comp. Stat. Ann.505/2AA, 2S, 2W, 7, 10a Barbara's Sales, Inc. v. Intel Corp., 227 Ill.2d 45,60 (2007); Avery v. State Farm Mutt. Auto Ins., Co.,835 N.E.2d 801, 849-50 (2005). Barbara's Sales, Inc. v. Intel Corp., 227 Ill.2d 45,60 (2007); Avery v. State Farm Mutt. Auto Ins., Co.,835 N.E.2d 801, 849- 50 (2005). Highsmith v. Chrysler Credit Corp., 18 F.3d434, 441 (7th Cir. 1994) (quoting Knox Coll. v. Celotex Corp., 88 Ill. 2d407, 415 (1981)); Walsh v. Barry-Harlem Corp.,649 N.E.2d 614, 616 (Ill. Ct. App. 1995). Avery v. State Farm Mut. Auto. Ins. Co. , 216 Ill. 2d 100, 199 (2005); Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 155 (2002); Bunting v. Progressive Corp., 809 N.E.2d 225, 231 (Ill. App. Ct. 2004). Avery v. State Farm Mut. Auto. Ins. Co. , 216 Ill. 2d 100, 199 (2005); Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 155 (2002); Bunting v. Progressive Corp., 809 N.E.2d 225, 231 (Ill. App. Ct. 2004). Xydakis v. Target , 333 F.Supp. 2d 686, 688 (N.D. Ill. 2004); Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 164 (2002); Seigel v. Levy Org. Dev. Co., 607 N.E.2d 194, 198 (1992); Bunting v. Progressive Corp., 809 N.W.2d 225, 231 (Ill. App.Ct. 2004). Ryan v. Werst Elec. GmbH & Co., 59 F.3d 52, 53-54 (7th Cir. 1995). Bunting v. Progressive Corp., 809 N.E.2d 225, 231 (Ill. App. Ct. 2004); Griffin v. Universal Cas. Co. , 654 N.E.2d 694, 700-01 (Ill. App. Ct. 1995);Smith v. Prime Cable of Chi., 658 N.E. 2d 1325, 1335 (Ill. App. Ct. 1992). Guess v. Brophy, 517 N.E.2d 693, 697 (Ill. Ct. App. 1987). La Throp v. Bell Fed. Sav. & Loan Ass’n, 370 N.E.2d 188, 195 (Ill. 1977) (affirming dismissal of an unjust enrichment claim because “[a] person is not entitled to compensation on the grounds of unjust enrichment if he receives . . . that which it was agreed between them the other should give in return” (citing Brooks, Martin v. Heinold Commodities, Inc., 643 N.E.2d 734, 753 (1994). Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.677 Page 11 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER 548 P.2d at 1171)). Indiana Deceptive Consumer Sales Act Ind. Code Ann. §§ 24-5-0.5-1, et seq. Private right of action Class action permitted. Two years from the occurrence of act. "Actual damages" required. Reliance and proximate causation required. Claims are based on misrepresentation of material fact. However, the IDCSA, does NOT have “general fraud" category. “The categories of deceptive acts giving rise to liability under the IDCSA are very specifically defined... there is no general 'fraud' category. Compare consumer protection acts in many other states, which either specifically refer to failure to state material facts or include 'catch-all' clauses...the IDCSA contains no such provisions." "Incurable" deceptive practices require "knowing violation" and "intent to mislead;" most "uncured" deceptive practices require defendant had "[known] or should reasonably have known." Before 2005 amendment, recovery limited to "damages actually suffered." After 2005 amendment, damages "actually suffered" or $500, whichever is greater. Allows attorneys' fees. Allows damages for a willful deceptive act of three times actual damages or $1,000, whichever is greater. Injunctive relief and discretionary attorneys' fees available. Prejudgment interest recoverable. Requires notice to defendant unless deceptive act is "incurable. “Money recovered in a class action that cannot be returned to consumers within one year reverts back to the defendant. Ind. Code Ann. § 24- 5-0.5-4 Ind. Code Ann. § 24-5-0.5-4 Ind. Code Ann. § 24-5-0.5-5(b) Ind. Code Ann. § 24-5- 0.5-4(a) Ind. Code Ann. § 24- 5-0.5-4(a) Ind. Code Ann. § 24-5- 0.5-3(a) Ind. Code Ann. § 24-5- 0.5-4; P.L. 165-2005 Ind. Code Ann. §§ 24- 5-0.5-4(b), 24-5-0.5-5 McKinney v. State, 693N.E.2d 65, 66 (Ind.1998). McKinney v. State, 693N.E.2d 65, 66 (Ind.1998). Captain & Co. v. Steinberg, 505 N.E.2d 88, 98-99 (Ind. Ct. App. 1987). McKinney v. State, 693 N.E.2d 65, 72 (Ind. 1998); Lawson v. Hale, 902N.E.2d 267, 274 (Ind. Ct. App. 2009). McKinney v. State, 693N.E.2d 65, 68- 69 (Ind.1998). Missi v. CCC Custom Kitchens, Inc., 731 N.E.2d 1037, 1041 (Ind. Ct. App. 2000); Clark's Pork Farms v. Sand Livestock Sys., Inc., 563 N.E. 2d 1292,1301 (Ind. Ct. App. 1990). Iowa Consumer Fraud Act Iowa Code § 714.16 No private right of action; attorney general only. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Iowa Code § 714.16 Molo Oil Co. v. River City Ford Truck Sales, Inc.,578 N.W.2d 222, 227-28 (Iowa 1998). Smith v. Stowell, 125 N.W.2d 795, 800 (Iowa 1964) (“[A] person is not entitled to compensation on the ground of unjust enrichment if he received . . . that which it was agreed Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.678 Page 12 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER between them the other should give in return.” (quoting Restatement (First) of Restitution § 107 cmt. (1)a (1937))), overruled on other grounds, Lamp v. Amer. Prosthetics, Inc., 379 N.W.2d 909, 910 (Iowa 1986). Kansas Consumer Protection Act Kan. Stat. Ann. §§ 50-623, et seq. Private right of action allowed. Class action allowed. Class action only allowed for certain claims. Three years from date of violation. Only "aggrieved" consumer can file an individual private cause of action and receive damages; only one who suffers loss or injury may recover damages in a class action. "Causal connection" required. However, reliance not required. Misrepresentation or omission must be of a "material fact." Most deceptive acts or practices require willful or knowing (or have reason to know of) misrepresentation or omission. Party must not willfully violate Act, but must merely engage in the willful use of a misrepresentation or an omission. In individual action, plaintiff may recover equitable relief or the greater of damages or civil penalty of up to $10,000 per violation. Punitive damages may be awarded. Attorneys' fees are discretionary. Recovery in class actions limited to recover of actual damages. Unjust enrichment is unavailable if defendant has provided consideration for benefit received. Consumers limited to individuals, husbands and wives, sole proprietors, or family partnerships. Jury trial allowed. Kan. Stat. Ann. § 50- 634,50-634(d) Kan. Stat. Ann. §§ 50-634, 50-634(d) Kan. Stat. Ann. § 60-512(2) Kan. Stat. Ann. §§ 50- 634(b), (d) Kan Stat. Ann. §§ 50- 626,50-634(b), (d) Kan. Stat. Ann. §§ 50- 626(a), (b)(2)- (4) Kan. Stat. Ann. §§ 50-626(a), (b) Kan. Stat. Ann. §§ 50- 636, 50-634(b), 50- 634(e), 50-636(a),50- 636(d) Kan. Stat. Ann. § 50- 624(b) Alexander v. Certified Master Builders Corp., 1P.3d 899, 905-08 (Kan.2000); Haag v. Dry Basement, Inc., 732 P.2d392 (Kan. Ct. App. 1987). Lowe v. Surpass Res. Corp., 253 F. Supp. 2d1209, 1229 n.16 (D. Kan.2003); Finstad v. Washburn Univ. of Topeka, 845 P.2d 685,691 (Kan. 1993). Finstad v. Washburn Univ. of Topeka, 845 P.2d 685,690-92 (Kan. 1993); Cole v. Hewlett-Packard Co., No.90-164, 2004 WL 376471, at *6 (Kan. Ct. App. Feb 27,2004). Moore v. Bird Eng'g Co., 41 P.3d 755, 762-64 (Kan. 2002); York v. InTrust Bank, N.A., 962 P.2d 405, 420-21 (Kan.1998). Haag v. Dry Basement, Inc. 732 P.2d 392 (Ct. App. 1987). Dodson v. U-Need a Self Storage, 96 P.3d 667, 673-74 (2004); York v. InTrust Bank, N.A., 962 P.2d 405, 429 (Kan.1998); Equitable Life Leasing Corp. v. Abbick, 757 P.2d 304,307-08 (Kan. 1988); Watkins v. Roach Cadillac, Inc., 637P.2d 458, 464 (Kan Ct. App.1981). Senne & Co. v. Simon Capital Ltd. P’ship, No. 93-302, 2007 WL 1175858, at *8 (Kan. Ct. App. Apr. 20, 2007) (underlying premise of a claim for unjust enrichment is that the D received a benefit w/o providing consideration); Tradesmen Int’l, Inc. v. U.S. Postal Serv., 234 F. Supp. 2d 1191, 1205-06 (D. Kan. 2002) (finding that requirement of unjust enrichment claim not met where P fails to allege that D failed to pay for the benefits conferred upon it). Waggener v. Seever Sys., Inc., 664 P.2d 813, 816 (1983). Kentucky Consumer Private right of action allowed. Class action likely prohibited. One year after any action brought by attorney general Must suffer "ascertainable loss of money or property, Does not require proof of actual deception Proximate causation or causal relationship between the act or Materiality required. Kentucky follows the FTC's definition of "deceptive act”: Must show defendant's actions are intentional or Actual damages, discretionary punitive damages, equitable Limited to persons who purchase or lease goods or Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.679 Page 13 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Protection Act Ky. Rev. Stat. Ann §§367.110, et seq. terminated or within two years after violation of the Act, whichever is later. Discovery rule does not apply. real or personal, as a result of" violation. of some person. practice and injury. “First, there is a representation, omission, or practice that, second, is likely to mislead consumers acting reasonably under the circumstances, and third, the representation, omission, or practice is material. " grossly negligent. relief, reasonable attorney's fees, and costs allowed. services for personal, family, or household purposes. Ky. Rev. Stat. Ann. §367.220(1) Ky. Rev. Stat. Ann. §367.220(5) Ky. Rev. Stat. Ann. §367.220(1) Ky. Rev. Stat. Ann. §367.220(1) Ky. Rev. Stat. Ann. §§367.220(1), (3) Ky. Rev. Stat. Ann. §367.220(1) Arnold v. Microsoft Corp., No. 00-123, 2001WL 193765, at *6 (Ky. Cir. Ct. July 21, 2000). But see Ky. Laborers Dist. Council Health & Welfare Trust Fund v. Hill & Knowlton, Inc., 24F. Supp. 2d 755, 774 (W.D. Ky. 1998) (class action alleging among its claims, claims under the Consumer Protection Act, and dismissing such claims on other grounds). Cook v. State Farm Mutt Auto Ins. Co., No. 02-000804, 2004 WL2012375, at *3-4 (Ky. Ct. App. Sept. 10, 2004). Telcom Directories, Inc. v. Commw. ex . rel. Cowan, 833 S.W.2d 848,850 (Ky. Ct. App. 1991). Ky. Laborers Dist. Council Health & Welfare Trust Fund v. Hill & Knowlton, Inc., 24 F. Supp. 2d 755,774 (W.D. Ky. 1998); Woods v. Walgreen Co., No. 3:01 CV-646-S, 2003WL 1239364, at *3 (W.D. Ky. Mar. 17, 2003). Corder v. Ford Motor Co., 285 Fed. Appx. 226, 227- 28 (6th Cir. 2008). Capitol Cadillac Olds, Inc. v. Roberts, 813 S.W.2d287, 291 (1991); Sparks v. Re/Max Allstar Realty, Inc., 55 S.W.3d 343, 348 (Ky. Ct. App. 2000). Hunt Enters., Inc. v. John Deere Indus. Equip. Co., 18F.Supp. 2d 697, 702 (W.D. Ky. 1997), aff'd, 162 F.3d1161 (6th Cir. 1998) Louisiana Unfair Trade Practices Act La. Rev. Stat. Ann. §§51:1401, et seq. Private right for individuals only. Class actions prohibited. One year from the time of the transaction or the act. Ascertainable loss of money or movable property required. Must prove some element of fraud, misrepresent ation, deception or other unethical conduct. Loss must have occurred as a result of the use or employment by another person of an unfair or deceptive method, act or practice. Must prove some element of fraud, misrepresentation, deception or other unethical conduct. Defendant must have acted knowingly for treble damages. Permits recovery of actual damages, attorney's fees, and treble damages for knowing violations, but only if the defendant is put on notice by the director or attorney general. Prejudgment interest available in all Louisiana tort actions. No punitive damages beyond treble damages. Consumer transaction defined to require a natural person transacting primarily for personal, family or household use. La. Rev. Stat. Ann. §51:1409(A) La. Rev. Stat. Ann. §51:1409(A) La. Rev. Stat. Ann. §51:1409(E) La. Rev. Stat. Ann. §51:1409(A) La. Rev. Stat. Ann. §51:1409(A) La. Rev. Stat. Ann. §51:1409(A) La. Rev. Stat. Ann. § 51:1409(A) La. Rev. Stat. Ann. §51:1409(A) La. Rev. Stat. Ann. §51:1409(A) La. Rev. Stat. Ann. §51:1402(3) Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 174-75 (5th Cir. 2004). Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 174-75 (5th Cir. 2004). Mayo v. Simmon, 646So. 2d 973, 976 (La. Ct. App. 1994). Landrum v. Bd. Of Comm'rs of Orleans Levee Dist., 758 F.Supp.387, 392 (E.D. La. 1991). Garbutt v. Fairbanks Capital Corp., No. 03-1666, 2004 U.S. Dist. LEXIS 17138, at *5 (E.D. La. Aug. 27, 2004). Garbutt v. Fairbanks Capital Corp., No. 03-1666, 2004 U.S. Dist. LEXIS17138, at *5 (E.D. La. Aug. 27, 2004). Laurents v. La. Mobile Homes, Inc., 689 So. 2d 536, 542-43 (La. Ct. App. 1997). Maine Private right of action. Class action Six years from Injury must be Act or practice An injury under the Intent to deceive Actual damages or Applies only to Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.680 Page 14 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Unfair Trade Practices Act Me. Rev. Stat. Ann. tit.5, §§ 205-A, et seq. permitted. discovery. substantial. Recovery limited to persons who actually purchased defendant's goods or services. Injury must be loss of money or property, real or personal. must have the effect of deceiving the consumer, or inducing her to purchase something that she would not purchase otherwise. Act must be an injury that consumers themselves could not have reasonably avoided. not required. restitution and equitable relief, including injunctive relief, as the court determines necessary and proper. Attorney's fees permitted. Prejudgment interest allowed. No punitive damages. purchase of goods or services primarily for personal, family, or household purposes. Statute provides for the right to a jury trial. Plaintiff must send presuit notice to defendants 30 days prior to filing suit. No claim is possible if the injury is outweighed by any countervailing benefits to consumers or competition that the practice produces. Me. Rev. Stat. Ann. tit. 5,§ 213 Me. Rev. Stat. Ann. tit. 5,§ 213 Me. Rev. Stat. Ann. tit.14, § 752 Me. Rev. Stat. Ann. tit. 5,§ 213(1) Me. Rev. Stat. Ann. tit. 5, §§213(1)-(2) Me. Rev. Stat. Ann. tit. 5, §§213(1), (1-A) Sanford v. Nat'l Ass'n for the Self-Employed, Inc., 264 F.R.D. 11, 16 (D. Me. 2010). Sanford v. Nat'l Ass'n for the Self- Employed, Inc., 264 F.R.D. 11, 16 (D. Me. 2010). Campbell v. Machias Sav. Bank, 865 F. Supp. 26, 34 (D. Me. 1994); State v. Bob Chambers Ford, Inc., 522 A.2d 866, 873-74 (1981). Tungate v. MacLean- Stevens Studios, Inc., 714 A.2d 792, 797 (Me. 1998); Hoglund ex rel. Johnson v. DiamlerChrysler Corp., 102 F. Supp. 2d 30, 30-32 (D. Me. 2000). State v. Weinschenk, 868 A.2d 200, 206 (2005), Tungate v. MacLean- Stevens Studios, Inc., 714 A.2d 792, 797 (1998). State v. Weinschenk, 868 A.2d 200, 206 (2005), Tungate v. MacLean-Stevens Studios, Inc., 714 A.2d 792, 797 (1998). Auto Europe, LLC v. Conn. Indem. Co., 321F.3d 60, 66-68 (1st Cir.2003); State v. Weinschenk, 868 A.2d200, 206 (2005);Courtney v. Bassano,733 A.2d 973, 976 (1999); Binette c. Dyer Library Ass'n, 688 A.2d898, 906 (1996). State v. Bob Chambers Ford, Inc., 522 A.2d 866, 873-74 (1981); Taylor v. Phillip Morris. Inc., No. 00-203, 2001WL 1710710, at *4 (Me. Sup. Ct. May 29, 2001). Tungate v. MacLean- Stevens Studios, Inc., 714 A.2d 792, 797 (1998). Maryland Consumer Protection Act Md. Code Ann., Com. Law §§ 13- 1010, et seq. The Consumer Protection Division or the attorney general may take action. Also, Act provides for a private right of action. Class action permitted. Three years. Private right of action may be brought to recover for injury or loss sustained as a result of prohibited practices. May only be invoked to compensate a consumer for an actual injury or loss. Representation must have the capacity, tendency, or effect of deceiving or misleading the consumer. However, actual deception not necessary. Private right of action for damages requires injury or loss as the result of proscribed practice. Misrepresentation or omission must be of a material fact. A deceptive practice must include a material misrepresentation involving information important to consumers and therefore likely to affect their choice of product. No intent required. For private right of action, compensatory damages; no punitive damages. Attorney's fees may also be recovered after other damages are awarded. Attorney's fees may also be available to defendants where the court is satisfied that the action was brought in bad faith or is of a frivolous nature. The Consumer Protection Act applies only where the purchaser intends to use the goods for personal, household, family, or agricultural purposes. The intent of the Maryland General Assembly is that, in construing "unfair or deceptive trade practices," due consideration and weight should be given to the interpretations of §5(a)(1) of the Federal Trade Commission Act by the Federal Trade Commission and the federal courts. Md. Code Ann., Com. Law §§ 13-301, 13- 408(a) Md. Code Ann., Com. Law § 13- Md. Code Ann., Cts. & Jud. Proc. § 5-101 Md. Code Ann., Com. Law § 13- 408(a) Md. Code Ann., Com. Law §§ 13- 301(1), 13-302 Md. Code Ann., Com. Law §13-408(a) Md. Code Ann., Com. Law §§ 13-301(3), (4), (9) Md. Code Ann., Com. Law § 13- 301(1) Md. Code Ann., Com. Law §§13-408(a), (b), (c) Md. Code Ann., Com. Law§§ 13-105 Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.681 Page 15 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER 408(a) Philip Morris Inc. v. Angeletti, 752 A.2d 200,234-36 (2000); Morris v. Osmose Wood Preserving, 667 A.2d 624, 634 (1995). Greene Tree Home Owners Ass'n, Inc. v. Green Tree Assocs., 749 A.2d 806, 820-21 (2000). Morris v. Osmose Wood Preserving, 667 A.2d624, 634 (1995); Berg v. Byrd, 720 A.2d 1283, 1286 (Md. Ct. Spec. App.1998). Luskin's, Inc. v. Consumer Prot. Div.,726 A.2d 702, 713 (1999). Consumer Prot. Div. v. Morgan, 874 A.2d 919 (2005); Golt v. Phillips, 517 A.2d 328, 332-33 (1986). Hoffman v. Stamper, 867 A.2d 276, 304 (2005); Golt v. Phillips, 517 A.2d 328, 332-33 (1986); McGraw v. Loyola Ford, Inc., 723 A.2d 502, 510 (Md. Ct. Spec. App. 1999). Morris v. Osmose WoodPreserving, 667 A.2d 624,634 (1995). Massachusetts Consumer Protection Act Mass. Ann. Laws ch.93A, §§ 1, et seq. Private right of action. Class action permitted. Four years from discovery. Injury required. Causation required between unfair acts and claimed loss. Reliance not required. Deceptive if contains material omission. No intention to deceive need be shown; defendant need not know representation was false. Greater of actual damages or $25 and double to treble damages for willful or knowing violations. Prejudgment interest allowed. Attorneys' fees mandatory in class actions unless a reasonable settlement was rejected. Court shall award injunctive and other equitable relief as deemed necessary and appropriate. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain, or where defendant has provided consideration for the benefit received. Unjust enrichment claim requires that plaintiff lacks a legal remedy. Whether receipt of benefit was unjust depends on parties’ reasonable expectations. Presuit demand required at least 30 days prior to filing action. If reasonable settlement offer is rejected by the plaintiffs, then the court may limit recovery to settlement amount. Jury trials are allowed, but only upon the request of a judge. Mass. Ann. Laws ch. 93A,§§ 9(1), (2) Mass. Ann. Laws ch. 93A,§§ 9(1), (2) Mass. Ann. Laws ch. 260,§ 5A Mass. Ann. Laws ch. 93A,§ 9(1) Mass. Ann. Laws ch. 93A, §§9(3), (4) Mass. Ann. Laws ch. 93A,§§ 9(3), (4) Szymanski v. Boston Mut. Life Ins. Co., 778 N.E.2d 16, 19-20 (Mass App. Ct. 2002). Hershenow v. Enter. Rent-a-Car Co. of Boston, Inc., 840 N.E.2d 526, 535 (2006). Sebago, Inc. v. Beazer E., Inc., 18 F. Supp. 2d 70, 103 (D. Mass. 1998); Aspinall v. Philip Morris Cos., 813 N.E.2d 476, 486- 87 (2004); Slaney v. Westwood Auto, Inc., 322 N.E.2d 768, 779 (1975); Fraser Eng'g Co. v. Desmond, 524 N.E.2d 110,113 (Mass App. Ct. 1988). Aspinall v. Philip Morris Cos., 813 N.E.2d 476, 486-87 (2004); Underwood v. Risman, 605 N.E.2d 832, 835 (1993). Swanson v. Bankers Life Co., 450 N.E.2d 577, 580 (1983); Slaney v. Westwood Auto, Inc., 322 N.E.2d 768, 779 (1975); Golber v. BayBank Valley Trust Co., 704 N.E.2d 1191,1194 (Mass App. Ct.1999); Fraser Eng'g Co. v. Desmond, 524 N.E.2d110, 113 (Mass App. Ct.1988). Aspinall v. Philip Morris Cos., 813 N.E.2d 476, 486-87 (2004); McEvoy Travel Bureau Inc. v. Norton Co., 563 N.E.2d 188, 196 (1990). Cmty. Builders, Inc. v. Indian Motorcycle Associates, Inc., 692 N.E.2d 964, 979 (Mass. App. Ct. 1998)(holding that to recover under restitution there must be an unjust benefit and whether the benefit is unjust is determined by the reasonable expectations of the parties); Ferola v. Allstate Life Ins. Co., No. 050996, 2007 WL 2705534, at *14 (Mass. Super. Ct. Aug. 30, 2007). Ferola v. Allstate Life Ins. Co., No. 050996, 2007 WL 2705534, at *14 (Mass. Super. Ct. Aug. 30, 2007) (unjust enrichment will not lie where defendant provided valuable Travis v. McDonald, 490N.E.2d 1169, 1172 (1986); Newly Wed Foods, Inc. v. Superior Nut Co., Inc., No.05-0454E, 2010 WL1178404, at *2 (Mass. Super. Ct. Feb. 18, 2010). Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.682 Page 16 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER consideration). Fernandes v. Havkin, 731 F. Supp. 2d 103, 114 (D. Mass. 2010). Metro Life v. Cotter, 464 Mass. 623, 644 (2013) (defining “unjust” based on parties’ expectations). Michigan Consumer Protection Act Mich. Comp. Laws Serv. §§ 445.901, et seq. Private right of action allowed. Class action allowed. Later of six years after occurrence of act and one year after last payment. Plaintiff must have “suffer[ed a] loss. “The Act allows recovery for mental distress where those damages are the "legal and natural consequences of the wrongful act and might reasonably have been anticipated." Loss must be "as a result of a violation" of the Act. Misleading acts or practices must be proximate cause of any damages. Members of a class action "need not individually prove reliance on the alleged misrepresentations," just need to show reasonable person would have relied. Requires proof that a "reasonable person would have relied on the representations. “Actions under §§ 455. 903(1)(s), (bb), and (cc) require omission or misrepresentation as to a material fact, which is a fact "that is important to the transaction or affects the consumer's decision to enter into the transaction." Plaintiff must show defendant's intent to deceive through a pattern of misrepresentation In individual actions, the greater of actual damages or$250 and attorney's fees. Class actions are limited to actual damages. Injunctive and declaratory relief also available. Punitive damages are allowed for persistent and knowing violations, not to exceed$25,000 in actions brought by the Attorney General. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Purchase must be "primarily for personal, family or household purposes.""[I]f an item is purchased primarily for business or commercial rather than personal purposes, the [Act] does not supply protection. “If a defendant shows that a violation was made through a good-faith error, plaintiff's damages are limited to actual damages. Mich. Comp. Laws Serv. § 445.911 Mich. Comp. Laws Serv. § 445.911 Mich. Comp. Laws Serv. § 445.911(7) Mich. Comp. Laws Serv. §§ 445.911(2),(3) Mich. Comp. Laws Serv. §§445.911(2), (3) Mich. Comp. Laws Serv. §§454.903(1)(s), (bb), (cc) Mich. Comp. Laws Serv. §§445.905(1), 445.911(1), (2), (3) Mich. Comp. Laws §§445.902(g), 445.911(6) Lozada v. Dale Baker Oldsmobile, Inc., 136 F. Supp. 2d 719, 728 (W.D. Mich. 2001). Dix v. Am. Bankers Life Assurance Co. of Fla., 415N.W.2d 206, 209 (1987);Zine v. Chrysler Corp., 600N.W.2d 384, 399 (Mich. Ct. App. 1999). Dix v. Am. Bankers Life Assurance Co. of Fla., 415 N.W.2d 206, 209 (1987); Zine v. Chrysler Corp., 600 N.W.2d384, 398 (Mich. Ct. App. 1999). Dix v. Am. Bankers Life Assurance Co. of Fla.,415 N.W.2d 206, 209 (1987). Smolen v. Dahlmann Apartment, Ltd., 186 Mich. App. 292, 296- 97 (1990). Isom v. NE Lots LLC, No. 288378, 2010 WL 143470, at *6 (Mich. Ct. App. Jan. 14, 2010) (finding that a party cannot state a claim of unjust enrichment when said party received the benefit of its bargain); Russell v. Zeemering, No. 260660, 2006 WL 2382511, at *5 (Mich. Ct. App. Aug. 17, 2006). Zine v. Chrysler Corp., 600N.W.2d 384, 393 (Mich. Ct. App. 1999). Minnesota Prevention of Consumer Fraud Act Minn. Stat. §§325.F.68, et seq. Private right of action allowed. Class action allowed. Six years. Civil remedy available to “any person injured. “Not limited to actual purchaser of products "as long as the plaintiff alleges an injury" from conduct prohibited under the Act. Injunction available without showing Deception not necessary only "intent that others rely. . . whether or not any person has in fact been misled, deceived, or damaged thereby" Injury must be "by a violation of the Act. There must be a "proper legal nexus between the complained of acts and their alleged monetary losses. “Proof of reliance is required for damages, but not for injunctive relief. Deception must be "material" l to the "buying decisions" of plaintiffs. "[I]ntent that others rely. . . whether or not any person has in fact been misled, deceived or damaged thereby." Actual damages, "costs of investigation," reasonable attorney's fees and injunction relief. Actual damages are to be measured by the "out-of pocket" loss, or the difference between the actual value of the merchandise and the price paid for the Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Unjust enrichment claims require that plaintiff lacks a legal remedy. SOL for unjust enrichment claims is 6 years. Complained of- misrepresentation "must allege that Defendants made fraudulent or misrepresentative statements in connection with sale of goods." Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.683 Page 17 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER actual damages. Causation is a necessary element in an action to recover damages under Minn. Stat. § 8.31(3a). merchandise "along with any special damages naturally and proximately caused by the fraud prior to its discovery, including expenses incurred in mitigating the damages." Minn. Stat. § 8.31(3a) Minn. Stat. § 8.31(3a) Minn. Stat. §§ 541.05(1)- (2) Minn. Stat. § 8.31(3a) Minn. Stat. §§325F.69(1) , 325F.70 Minn. Stat. § 8.31(3a) Minn. Stat. §§325F.69(1); 325F.70 Minn. Stat. § 8.31(3a) Dahl v. Charles Schwab & Co., 545 N.W.2d 918, 920 (Minn. 1996). Dahl v. Charles Schwab & Co., 545 N.W.2d 918 ,920 (Minn. 1996). Estate of Riedel v. Life Care Ret. Communities, Inc., 505 N.W.2d 78, 83 (Minn. Ct. App. 1993). Group Health Plan, Inc. v. Philip Morris, Inc., 621 N.W.2d 2, 11 (Minn.2001); LeSage v. Norwest Bank Calhoun- Isles, N.A., 409 N.W.2d 536, 539 (Minn. Ct. App.1987). LeSage v. Norwest Bank Calhoun-Isles, N.A., 409N.W.2d 536, 539 (Minn. Ct. App. 1987). Thompson v. Am. Tobacco Co., 189 F.R.D. 544, 553 (D. Minn. 1999); Parkhill v. Minn. Mutt. Life Ins. Co.,188 F.R.D. 332, 344-45 (D. Minn. 1999); Group Health Plan, Inc. v. Philip Morris, Inc., 621 N.W.2d 2, 11 (2001); LeSage v. Norwest Bank Calhoun-Isles, N.A., 409 N.W.2d 536, 539 (Minn. Ct. App. 1987). Nordale, Inc. v. Samsco, Inc., 830 F.Supp. 1263, 1272 (D. Minn. 1993). LeSage v. Norwest Bank Calhoun- Isles, N.A., 409N.W.2d 536, 539 (Minn. Ct. App. 1987). B.F. Goodrich Co. v. Mesabi Tire Co., 430 N.W.2d 180, 182 (Minn. 1988); Higgins v. Harold-Chevrolet- Geo, Inc., No. A04- 596, 2004 WL2660923, at *3-4 (Minn. Ct. App. Nov. 23, 2004). Zinter v. Univ. of Minn., 799 N.W.2d 243, 247 (Minn. Ct. App. 2011) (holding a claim for unjust enrichment fails where a plaintiff receives the benefit for which she was entitled under an agreement),review denied (Aug. 16, 2011). Kelley v. College of St. Benedict, 901 F. Supp. 2d 1123, 1132- 33 (D. Minn. 2012) (granting motion to dismiss unjust enrichment claims where the statute “provided [plaintiff] with an adequate legal remedy” even where plaintiff “did not timely avail himself of the statute”); Arena Dev. Grp., LLC v. Naegele Commc’ns, Inc., Civ. No. 06–2806, 2007 WL 2506431, at *11 (D. Minn. Aug. 30, 2007); Mon-Ray, Inc. v. Granite Re, Inc., 677 N.W.2d 434, 440 (Minn. Ct. App. 2004 ; Southtown Plumbing, Inc. v. Har- Ned Lumber Co., Inc., 493 N.W.2d 137, 140 (Minn. Ct. App. 1992) (“It is well settled in Minnesota that one may not seek a remedy in equity when there is an Group Health Plan, Inc. v. Philip Morris, Inc., 68 F. Supp. 2d 1064, 1069-70 (D. Minn. 1999). Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.684 Page 18 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER adequate remedy at law.”). Mississippi Consumer Protection Act Miss. Code Ann. §§ 75-24-1, et seq. Private right of action allowed, but (1) only for people leasing or purchasing goods or services primarily for personal use; and only after exhausting administrative remedies. No class actions permitted. Three years. Plaintiff must have suffered "any ascertainable loss of money or property." Statements need not be literally false, but only must be capable of deceiving a reasonable person. "Ascertainable loss" must be as "a result of" unlawful acts. Materiality required. It is the intent of the Legislature that in construing what constitutes unfair or deceptive trade practices that the courts will be guided by the interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act (15USCS 45(a)(1)) as from time to time amended. The FTC has consistently adhered to the Cliffdale Associates standard which requires that the representation, omission, or practice is material. Only some subsections require intent. Compensatory damages only. Court may award prevailing defendant attorney's fees and costs if plaintiff's claims were frivolous or to harass. Civil penalty of $10,000 if violation was knowing or willful upon petition of the Attorney General. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Private right of action limited to purchases of goods or services "primarily for personal, family or household purposes." Prior to bringing a claim, plaintiff must have made a reasonable attempt to resolve any claim through informal dispute program. No class actions. Miss. Code Ann. § 75- 24-15 Miss. Code Ann. § 75-24-15 Miss. Code Ann. § 15-1-49 Miss. Code Ann. § 75- 24-15(1) Miss. Code Ann. § 75- 24-15(1) Miss. Code Ann. § 75-24-3(c) Miss. Code Ann. §§ 75-24-5(i), (j) Miss. Code. Ann. §§ 75- 24-15(1), (3), 75-24-19 Miss. Code Ann. §§ 75-24-15(1), (2), (4) Clark v. Commercial Credit Corp., 357 F. Supp. 2d 962, 965 (S.D. Miss. 2005). Sw. Starving Artists Group, Inc. v. State ex rel. Summer, 364 So. 2d1128, 1131 (Miss. 1978). FTC v. Panton 1 Corp., 33 F.3d 1088,1095 (9th Cir. Cal. 1994). Omnibank of Mantee v. United S. Bank, 607 So. 2d 76, 92 (Miss. 1992) (noting that the Supreme Court of Mississippi historically cites the Restatement of Restitution with approval). Missouri Merchandising Practice Act Mo. Rev. Stat. §§ 407.010, et seq. Private right of action allowed; limited to "merchandise primarily for personal, family or household purposes." Class action allowed. Five years. Plaintiff must have suffered an "ascertainable loss of money or property." Reliance is not required "Ascertainable loss" must be "a result of" unlawful acts. Injury must be "proximately caused by defendant's actions." The act, use or employment by any person of any deception, fraud, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri, is declared to be an unlawful practice. No need to prove intent. Actual damages and discretionary punitive damages and attorney's fees. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain, or where defendant has provided consideration for the benefit received. Consumers who purchase goods for their business do not have standing to sue under the Act. Specific class action requirements in the Act. Mo. Rev. Stat. § 407.025 Mo. Rev. Stat. § 407.025 Mo. Rev. Stat. § 516.120 Mo. Rev. Stat. §407.025(1) Mo. Rev. Stat. § 407.025(1) Mo. Rev. Stat. § 407.020(1) Mo. Rev. Stat. § 407.025(1) Mo. Rev. Stat. §§407.025(3)-(4) State v. Area Co. Inv. Co.,756 S. W. 2d 633, 635-36 (Mo. App. 1988). Willard v. Bic Corp., 788 F. Supp. 1059, 1070 (W.D. Mo. 1991). State ex rel. Nixon v. Beer Nuts, 29 S.W.3d828, 837 (Mo. Ct. App.2000); State ex rel. Webster v. Area Co Inv. Co. Howard v. Turnbull, 316 S.W.3d 431, 438 (Mo. Ct. App. 2010) (affirming that plaintiff cannot recover for unjust enrichment when he received Saey v. CompUSA, Inc., 174F.R.D. 448, 450 (E.D. Mo.1997). Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.685 Page 19 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER 756 S. W. 2d 633,635 (Mo. Ct. App. 1988) ("It is the defendant's conduct, not his intent, which determines whether a violation has occurred."). “precisely what he bargained for”), transfer denied (Aug. 31, 2010). Cnty. Asphalt Paving, Co. v. Mosley Constr., Inc., 239 S.W.3d 704, 710 (Mo. Ct. App. 2007) (finding that plaintiff must plead nonpayment by defendant in order to assert an unjust enrichment claim). Montana Unfair Trade Practices and Consumer Protection Act Mont. Code Ann. §§30-14-101, et seq. Private right of action. Class actions prohibited. Two years. Plaintiff need only show an ascertainable loss of money or property. Reliance probably not required. Materiality required. The intent of the legislature is that, in construing the Act, due consideration and weight should be given to the interpretations of § 5(a)(1) of the Federal Trade Commission Act by the Federal Trade Commission and the federal courts. The FTC has consistently adhered to the Cliffdale Associates standard which requires that the representation, omission, or practice is material. No mention of any requirement that the party first must prove malice, oppression or fraud. Actual damages or $500, whichever is greater, recoverable by individual. Discretionary attorney's fees to prevailing plaintiff; discretionary attorneys' fees to defendant if action is frivolous. Treble damages available, only remedial and not punitive in nature. Mont. Code Ann. § 30-14-133(1) Mont. Code Ann. § 30-14-133(1) Mont. Code Ann. § 27-2-211 Mont Code Ann. § 30- 14-133(1) Mont Code Ann. § 30-14-104 Mont. Code Ann. §§ 30- 14-133(1), (3) Osterman v. Sears Roebuck & Co., 80 P.3d 435, 440 (2003). Durbin v. Ross, 916 P.2d758, 762 (1996) (listing reliance as an element for fraud but not specifically required for CPA violations.) FTC v. Pantron I. Corp., 33 F.3d 1088,1095 (9th Cir. 1994). T & W Chevrolet v. Darvial, 641 P.2d 1368,1371-72 (1982). Tripp v. Jeld-Wen, Inc., 112 P.3d 1018, 1026 (2005); Plath v. Schonrock, 64 P.3d 984,989-90 (2003). Nebraska Consumer Protection Act (Neb. Rev. Stat. Ann. §§ 59- 1601 to1623 (LexisNexis201 2));Uniform Deceptive Trade Practices Act (Neb. Rev. Stat. Ann.§§ 87- 301 to 306 Under the CPA, private right of action if deceptive act affects the public interest. Under the Uniform Deceptive Trade Practices Act (DTPA), private right of action for equitable relief. Class actions prohibited. Under the CPA, four years after the cause of action accrues. Under the DTPA, four years from the date of the purchase of the goods. Plaintiff must be injured in his business or property. Plaintiff must prove the practice possessed the tendency or capacity to mislead, or created the likelihood of deception. A claim may be brought by any person who is injured by a violation of the CPA. Knowledge of truth by plaintiff prior to acting may negate claim. No cases found. The CPA is patterned off the Sherman Act. The DTPA does not have a general material misrepresentation of fraud cause of action. None of the cases that discuss violations of Neb. Rev. Stat. Ann. § 87- 302 (LexisNexis 2012) mention materiality. No particular intent required. Under the CPA, recovery of actual damages allowed. Court can increase the award of damages to an amount that bears to actual damages which are not susceptible to measurement, but not to exceed $1,000. Under the DTPA, recovery of actual damages not allowed. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain To be actionable under the CPA, the unfair practice or deceptive act or practice must have an impact upon the public interest, which can be direct or indirect. Neb. Rev. Stat. Ann. §§59-1601(2), 59- 1609, 87-303(a) Neb. Rev. Stat. Ann. §§59- 1601(2), 59-1609, 87-303(a) Neb. Rev. Stat. Ann. §§59- 1612, 87- 303.10 Neb. Rev. Stat. § 59- 1609 (LexisNexis 2012). Neb. Rev. Stat. Ann. § 59-1609 (LexisNexis 2012); but see Neb. Rev. Stat. Ann. §87-303(a) Neb. Rev. Stat. Ann. §§59- 1069, 87- 303(a) Neb. Rev. Stat. Ann. § 59-1609 Washa v. Miller, 546 N.W.2d 813, 819 (Neb. 1996) (“[T]he enrichment of one party at the expense Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.686 Page 20 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER (LexisNexis 2012) (allowing injunctive relief for any person likely to be damaged by a deceptive trade practice of another). of the other is not unjust where it is permissible under the terms of an express contract.”). Nelson v. Lusterstone Surfacting Co., 605 N.W.2d 136, 141-42 (2000); Reinbrecht v. Walgreen Co., 742 N.W.2d 243, 247- 48 (Neb. Ct. App. 2007). Meyer Bros. Inc. v. Travelers Ins. Co., 250 Neb. 389, 390- 91 (1996). Road v. Wal- MartStores, Inc., 13 F.Supp.2d 1003, 1014 (D. Neb.1998). Road v. Wal-Mart Stores, Inc., 13 F.Supp. 2d 1003,1016 (D. Neb. 1998). Triple-7, Inc. v. Intervet, Inc., 338 F.Supp. 2d 1082, 1087 (D. Neb. 2004). Arthur v. Microsoft Corp., 676 N.W.2d 29, 38 (2004); Nelson v. Lusterstone Surfacting Co., 605 N.W.2d136, 141-42 (2000). Nevada Deceptive Trade Practices Act Nev. Rev. Stat. Ann. §§598.0903, et seq. Only an elderly or disabled person has a private right to action under the Act. However, the attorney general has the power to enforce the Act and seek penalties. Class actions not permitted. Four years accruing from the date facts constituting deceptive trade practices were discovered or should have been discovered. Claim is limited to recovery of any damages sustained. Deceptive trade practices include failure to disclose a material fact in connection with the sale of goods. A claim may be brought by or on behalf of any person who is a victim of consumer fraud. A person engages in a deceptive trade practice when in the course of his business or occupation he knowingly fails to disclose a material fact in connection with the sale or lease of goods or services . . . Or fails to state a material fact which is necessary to make another statement, considering the circumstances under which it is made, not misleading. Requires defendant knowingly made a false representation or knowingly failed to disclose a material fact. Only elderly or disabled may recover actual damages, punitive damages, and attorney's fees. Unjust enrichment is unavailable if defendant has provided consideration for benefit received. Nev. Rev. Stat. Ann. §§ 598.0915, 598.0925, 598.0977 Nev. Rev. Stat. Ann. §598.0977 Nev. Rev. Stat. Ann. §11.190(2)(d) Nev. Rev. Stat. Ann. §41.600(1) Nev. Rev. Stat. Ann. §598.0923(2) Nev. Rev. Stat. Ann. §41.600(1) Nev. Rev. Stat. Ann. §598.0923(2) Nev. Rev. Stat. Ann. §§598.0915, 598.0923 Nev. Rev. Stat. Ann. §598.0977 Scaffidi v. United Nissan, 425 F.Supp. 2d 1172, 1184-85 (D. Nev. 2005). Bowyer v. Davidson, 584 P.2d 686, 687 (Nev. 1978) (finding no unjust enrichment where defendant paid the amounts due on the contract). New Hampshire N.H. Consumer Protection Act ("CPA") N.H. Rev. Stat. Ann. §§358-A:1, et seq. Attorney general may enforce the Act. Also provides for a private right of action. Class actions allowed. Three years from date violation was known or reasonably should have been known, but evidence of conduct more than three years earlier may be introduced. Act allows any person injured to bring a claim and to bring a class action if the unlawful act or practice has caused similar injury to numerous other persons. The Act does not require a showing of actual damages for the claimant to be awarded the statutory minimum and attorneys' fees. Plaintiff must establish a causal link between the unlawful conduct and their injuries. Material omissions may be actionable. No level of intent is required for normal damages. Damages doubled or trebled for willful or knowing violations. In individual actions, greater of action damages or $1,000 and attorney's fees; if the violation was willful or knowing, then the court shall double or treble actual damages. Class action damages limited to actual damages, equitable relief, and discretionary attorneys' fees. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain, or where defendant has provided consideration for the benefit received. Unjust enrichment claims allowed where D innocently received a benefit and passively accepted it. Specific class action provision within Act. N.H. Rev. Stat. Ann. §§358-A:2, 358-A:10, 358- A:10-a N.H. Rev. Stat. Ann. §§358-A:10, 358-A:10-a N.H. Rev. Stat. Ann. §358-A:3 N.H. Rev. Stat. Ann. §358-A:10-a N.H. Rev. Stat. Ann. §358-A:11 N.H. Rev. Stat. Ann. §358-A:10 N.H. Rev. Stat. Ann. §§ 358- A:10, 358-A:10-a N.H. Rev. Stat. Ann. § 358- A:10-a Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.687 Page 21 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Preferred Nat'l Ins. Co. v. Docusearch, Inc., 829 A.2d 1068, 1075 (2003). Mulligan v. Choice Mortg. Corp. USA, No. 96-596-B, 1998 WL 544431, at *11 (D.N.H. Aug. 11, 1998). FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir.1988); State v. Moran, 861 A.2d 763,766 (2009). Barrows v. Boles, 687A.2d 979, 986- 87 (1996) ("The objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce."). Clapp v. Goffstown Sch. Dist., 977 A.2d 1021, 1025 (N.H. 2009) (holding that a person who has conferred a benefit is not entitled to compensation, other than in accordance with the terms of such bargain, unless the transaction is rescinded). Axenics, Inc. v. Turner Constr. Co., 62 A.3d 754, 766-67 (N.H. 2013). Petrie- Clemons v. Butterfield, 441 A.2d 1167, 1172 (N.H. 1982)(applying passive acceptance standard). New Jersey Consumer Fraud Act N. J. Stat. Ann. §§ 56:8-19, et seq. Private right of action allowed. Class actions allowed. Six years. Plaintiff must show "ascertainable loss of money or property." Standing requires a plaintiff to plead a claim for damages that would survive in a summary judgment motion. In cases of misrepresentation, either out of pocket loss or loss in value will be sufficient. “While the element of traditional reliance required in a fraud case need not be proven in order to recover damages under the CFA, a private plaintiff must still ‘prove a causal nexus between the alleged [misrepresentation]’ and his or her damages.” Dabush. Materiality required. There are three kinds of violations of the Act, one of which is a knowing omission of material facts in connection with the advertisement or sale of merchandise. Defendant's intent is not an element; liability for affirmative misrepresentations requires no knowledge of the falsity of the misrepresentation, negligence, or the intent to deceive. Fraud requires a showing of intent that others rely upon such concealment or omission. “The requirement that knowledge and intent be shown is limited to the concealment, suppression or omission of any material fact.” (Fenwick, at 377). Damages limited to party's "ascertainable loss of moneys or property." No punitive damages, but treble damages mandatory once plaintiff proves unlawful practice under Act and resulting ascertainable loss. Attorney’s fees mandatory if plaintiff proves unlawful practice defined by Act. Unjust enrichment requires some direct relationship between the parties. Plaintiff must mail a copy of the complaint to the attorney general within 10 days of filing. Only AG can bring actions for purely injunctive relief. N.J. Stat. Ann. § 56:8- 19 N.J. Stat. Ann. § 56:8-19 N. J. Stat. Ann. § 2A:14-1 N. J. Stat. Ann. § 56:8- 19 N. J. Stat. Ann. § 56:8-19 N.J. State Ann. § 56:8-2 N. J. Stat. Ann. § 56:8- 19 N. J. Stat. Ann. § 56:8-20 Weinberg v. Sprint Corp., 801 A.2d 281, 283-84 (N.J. 2002). Kulger v. Romain, 58 N.J. 522 (1971); Varacallo v. Mass. Mut. Life Ins. Co., 332 N.J. Super. 31, 45 Mirra v. Holland Am. Line, 331 N.J. Super. 86, 90 (N.J. App. Div. 2000). Thiedemann v. Mercedes-Benz U.S. LLC, 183 N.J. 234, 246 (2005); Weinberg v. Sprint Corp., 801 A.2d 281, 283 (N.J. Cox v. Sears Roebuck & Co., 647 A.2d 454, 464 (N.J.1994); Dabush v. Mercedes Benz USA, Inc., 874 A.2d1110, 1121 (N. J. Talalai v. Cooper Tire & Rubber Co., 360 N. J. Super. 547, 562 (Law Div.2001); Fenwick v. Kay Am. Jeep, Inc., 72 N.J. 372, 377 (1977). Fenwick v. Kay Am. Jeep, Inc., 72 N.J. 372, 377 (1977); Lingar v. Live-In Companions, Inc., 300 N.J. Super. 22, Cox v. Sears Roebuck & Co., 647 A.2d 454, 465 (N. J.1994); BJM Insulation & Constr. Inc. v. Evans, 287 N. J. Super. 513, 517 (N.J. Callano v. Oakwood Park Homes Corp., 91 N.J. Super. 105, 109-110 (1966). Zorba Contractors, Inc. v. Housing Authority, City of Newark, 362 N.J. Super. 124, 137 (N.J. App. Div. 2003). Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.688 Page 22 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER (App. Div. 2006). Int’l Union of Operating Eng’rs Local 68 Welfare Fund v. Merck & Co., 192 N.J. 372, 389-391 (N.J. 2007) (decertifying a nationwide class). 2002). Super. Ct. App. Div. 2005); Fink v. Ricoh Corp., 839 A.2d 942,976-77 (N. J. Super. Ct. Law Div. 2003); N.J. Citizen Action v. Schering- Plough Corp., 842 A.2d 174, 178 (N.J. Super. Ct. App. Div.2003). 28 (App. Div. 1997); Thiedmann v. Mercedes- Benz USA, Inc., 872 A.2d 783, 791 (N.J. 2005); Gennari v. Weichert Co. Realtors, 691 A.2d 350,365 (N.J. 1997). App. Div.1996) (attorneys’ fees). New Mexico Unfair Trade Practices N.M. Stat. Ann. §§ 57-12-1, et seq. Private right of action allowed. Class actions allowed. Four years from discovery of violation. No injury requirement for injunctive relief only. In a suit for damages, plaintiffs must have suffered a "loss of money or property. “Only named plaintiffs may recover statutory damages of $100 without proving actual damages. Any person who suffers a loss of money or property "as a result of" unlawful acts may bring an action. Plaintiff must show that defendant's violation proximately caused plaintiff damages. Materiality required. It is the intent of the legislature that in construing Section 3 of the Unfair Practices Act, the courts to the extent possible will be guided by the interpretations given by the Federal Trade Commission and the federal courts. The FTC has consistently adhered to the Cliffdale Associates standard which requires that the representation, omission, or practice is material. Need not be intentionally made, but defendant must know that representation is false or exercise of reasonable diligence should have known that representation is false. Greater of actual damages or$100; discretionary treble damages if willful violation. Mandatory attorney's fees to successful plaintiff; attorney's fees and costs to defendant if suit was "groundless. “Unnamed class members limited to actual damages. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Attorney's fees awarded to defendant where plaintiff's claims are groundless. “Good faith" defense is available. N.M. Stat. Ann. § 57- 12-10 N.M. Stat. Ann. § 57-12-10 N.M. Stat. Ann. § 37-1-4 N.M. Stat. Ann. § 57- 12-10(A), (B), (E) N.M. Stat. Ann. § 57- 12-10(B) N.M. Stat. Ann. § 57-12- 2(D)(14) N.M. Stat. Ann. § 57-12-2(D) N.M. Stat. Ann. §§ 57- 12-10(B), (C), (E) N.M. Stat. Ann. § 57- 12-10(c) Tiberi v. Cigna Corp., 89 F.3d 1423, 1430 (10th Cir. 1996). Stevenson v. Louis Dreyfus Corp., 811 P.2d 1308, 1311 (N.M. 1991). FTC v. Panton 1 Corp., 33 F.3d 1088,1095 (9th Cir. 1994). Taylor v. United Mgmt., Inc., 51 F. Supp. 2d1212, 1216 (D.N.M.1999); Stevenson v. Louis Dreyfus Corp., 811P.2d 1308, 1311 (N.M.1991). Arena Res., Inc. v. Obo, Inc., 238 P.3d 357, 361 (N.M. Ct. App. 2010) (finding a person that has conferred a benefit is not entitled to compensation, other than in accordance with the terms of such bargain, unless the transaction is rescinded). Hubbard v. Albuquerque Truck Ctr. Ltd., 958 P.2d111, 118-19 (N.M. Ct. App.1998). New York Consumer Protection from Deceptive Acts and Practices N.Y. Gen. Bus. Law §§ 349 to 350-f- 1 (Consol. 2013) Private right of action allowed Class actions allowed. Split on whether New York law applies to non- residents. Three years. Plaintiff must prove actual injury but "not necessarily pecuniary harm." Plaintiff "must plead facts showing actual injury, not merely the alleged deceptive act." Justifiable reliance by the plaintiff is not an element of the statutory claim.” "Whether a representation or omission, the deceptive practice must be likely to mislead a reasonable consumer acting reasonably under the circumstances." Intent to defraud is not an element of a claim under the Act. Discretionary treble damages for willful or knowing violations. Greater of actual damages or $50 in individual action; discretionary treble damages for willful or knowing violations; discretionary attorney's fees to prevailing party. Class recovery limited to actual damages and injunctive relief. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. The deception of a consumer must occur in New York. A "complete defense" exists if the act or practice is "subject to and complies with the rules and regulations of . . . the federal trade commission" or other governmental entity of the United States. Plaintiff must show harm to the public interest. N.Y. Gen. Bus. Law §349(h) (Consol. N.Y. Gen. Bus. Law §349(h) N.Y. Gen. Bus. Law §349(h) (Consol. N.Y. Gen. Bus. Law § 349(h) (Consol. N.Y. Gen. Bus. Law § 349(d) (Consol. Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.689 Page 23 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER 2013). (Consol. 2013). 2013). 2013). 2013). Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris USA, Inc., 344 F.3d 211, 218 (2d Cir. 2003). Solomon v. Bell Atlantic Corp., 777 N.Y.S.2d 50, 52-53 (App. Div. 2004); Small v. Lorillard Tobacco Co., 679N.Y.S.2d 593, 598-99 (App. Div. 1998). Scott v. Bell Atl. Corp., 726 N.Y.S.2d 60 (2001); but see Peck v. AT&T Corp., N.Y.L.J., Aug. 1, 2002, p. 18, col. 3 (N.Y. Sup.); Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 325 (2002). Gaidon v. Guardian Life Ins. Co. of Am., 750 N.E.2d 1078, 1084 (N.Y.2001); State v. Daicel Chem. Indus., Ltd., 840 N.Y.S.2d 8, 11 (2007); Avdon Capitol Corp. v. Nationwide Mut. Fire Ins. Co., 658 N.Y.S.2d 383, 384 (1997). Stutman v. Chem. Bank, 731 N.E.2d 608, 611-612 (N.Y. 2000); Baron v. Pfizer, Inc., 840 N.Y.S.2d 445, 448 (3d Dep’t 2007); Small v. Lorillard Tobacco Co., Inc., 94 N.Y.2d 43, 55-56 (1999). Oswego Laborers' Local214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 26 (N.Y.1995). Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012); Pelman ex. rel. Pelman v. McDonald's Corp., 396 F.3d 508, 511 (2d Cir. 2005); Stutman v. Chem. Bank, 731 N.E.2d 608, 611-12 (N.Y. 2000). Stutman v. Chem. Bank, 731 N.E.2d 608, 611-12 (N.Y. 2000). Stutman v. Chem. Bank,731 N.E.2d 608, 612 (N.Y. 2000). Karlin v. IVF Am., Inc., 93 N.Y.2d 282, 291 (1999) (characterizing discretionary treble damages as "limited punitive damages"); Teller v. Hayes, 213 A.D.2d 141, 147 (N.Y. App. Div. 1995); Super Glue Corp. v. Avis Rent A Car Sys., Inc., 517 N. Y.S.2d 764, 767 (N.Y. App. Div. 1987). Jermyn v. Best Buy Stores, L.P., 256 F.R.D. 418, 437 (S.D. N.Y. 2009) (certifying class based upon UCL and unjust enrichment claims); One Step Up, Ltd. v. Webster Bus. Credit Corp., 925 N.Y.S.2d 61, 70 (N.Y. App. Div. 2011) (dismissing claim for unjust enrichment where “plaintiff received the benefit of its bargain”). U-Neek, Inc. v. Wal- Mart Stores, Inc., 147 F. Supp. 2d 158, 176 (S.D.N.Y. 2001); Goshen v. Mut. Life Ins. Co., 774 N.E.2d 1190, 1195-96 (N.Y. 2002). North Carolina Monopolies, Trusts and Consumer Protection N.C. Gen. Stat. §§ 75-1, et seq. Private right of action allowed. Class actions allowed. Four years. Actual injuries required. Defendant's misrepresentations must have "proximately caused actual injury to the plaintiff." "Substantial factor" test applies in proximate cause determination. Unclear whether reliance is required. In determining whether a representation is deceptive, its effect on the average consumer is considered. No particular scienter requirements. Actual damages that were the proximate result of prohibited conduct. Mandatory treble damages. Discretionary attorney's fees upon a finding that defendant's conduct was willful and defendant refused to negotiate settlement. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Prevailing defendant may receive attorney's fees and costs if court deems plaintiff's claims frivolous. N.C. Gen. Stat. § 75- 16 N.C. Gen. Stat. § 75-16 N.C. Gen. Stat. § 75-16.2 N.C. Gen. Stat. §§ 75- 16, 16.1 N.C. Gen. Stat. § 75- 16.1 Dash v. First Plus Home Owner Loan Trust, 248F. Supp. 2d 489, 494-95 (M.D.N.C. 2003). Dash v. First Plus Home Owner Loan Trust, 248F. Supp. 2d 489, 494-95 (M.D.N.C. 2003). Dash v. First Plus Home Owner Loan Trust, 248F. Supp. 2d 489, 500-01 (M.D.N.C. 2003). Wilson v. Blue Ridge Elec. Membership Corp.,578 S.E.2d 692, 694 (N.C. Ct. App. 2003). Am. Rockwool, Inc., v. Owens-Corning Fiberglass Corp., 640 F. Supp. 1411,1444 (E.D.N.C. 1986); Wilson v. Blue Ridge Elec. Membership Corp., 578S.E.2d 692, 694 (N.C. Ct. App. 2003); Tucker v. Boulevard at Piper Glen, LLC, 564 S.E.2d 423, 431(N.C. Ct. App. 2003) (stating that "actual reliance on the alleged Spartan Leasing Inc. v. Pollard, 400S.E.2d 476, 482 (N.C. Ct. App. 1991). Excel Staffing Serv., Inc. v. HP Reidsville, Inc., 616S.E.2d 349, 355 (N.C. Ct. App. 2005). Standing v. Midgett, 850 F. Supp. 396, 402 (E.D.N.C.1993); Ellis v. Northern Star Co., 388 S.E.2d 127, 131 (N.C.1990). Britt v. Britt, 359 S.E.2d 467, 471 (N.C. 1987) (holding plaintiff cannot recover for unjust enrichment where she received the agreed to consideration for the benefit conferred), abrogated on other grounds by Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 374 S.E.2d 385 (N.C. 1988). Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.690 Page 24 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER misrepresentation" was required for proximate causation); but see Cullenv. Valley Forge Life Ins.,589 S.E.2d 423, 431 (N.C. Ct. App. 2003)(indicating that proof of reliance may not be required). North Dakota Consumer Fraud N.D. Cent. Code §§ 51-15-01, et. seq. Private right of action allowed. Class actions allowed. Six years. Plaintiffs must have suffered a loss of money or property. Requires actual injury. Reliance not required. Deceptive act must be made with the "intent that others rely" upon it. "Knowing" conduct may subject defendant to treble damages. Actual damages; if conduct was "knowing" treble damages allowed; reasonable attorney's fees and costs are mandatory if violation is found. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Unjust enrichment claims require that plaintiff lacks a legal remedy. N.D. Cent. Code § 51- 15-09 N.D. Cent. Code § 51-15-09 N.D. Cent. Code § 28-01-16(2) N.D. Cent. Code § 51-15-02 N.D. Cent. Code §§ 51-15-02,-09 N.D. Cent. Code § 51-15-09 Hanson v. Acceleration Life Ins. Co., No. A3-97-152, 1999 WL 33283345, at *7 (D.N.D. July 1,1999). N.D. Fair Hous. Council, Inc. v. Haider, No. A1-98- 077, 1999 WL 33283355, at *3 (D.N.D. Mar. 9,1999); Ziegelmann v. Daimler-Chrysler Corp.,649 N.W.2d 556, 559 (N.D. 2002). Jerry Harmon Motors, Inc. v. Heth, 316 N.W.2d 324, 328 (N.D. 1982) (“[A] person is not entitled to compensation on the ground of unjust enrichment if he received from the other that which it was agreed between them that the other should give in return.” (citing 17 CJS Contract § 6, 570-574)). Schroeder v. Buchholz, 622 N.W.2d 202, 207 (N.D. 2001) (including “[a]n absence of a remedy provided by law” as an essential element of unjust enrichment); Apache Corp. v. MDU Res. Group, Inc., 603 N.W.2d 891, 894-95 (N.D. 1999) (same). Ohio Ohio Consumer Sales Pratices Act Ohio Rev. Code Ann.§§ 1345.01, et seq. Private right of action allowed. Must be a "consumer" -a person who engages in a consumer transaction with a supplier. "Consumer transaction" means a sale of primarily personal, family, or Class actions allowed. Class actions not allowed for claims based upon Attorney General's opinion or court decision and not express violation of Act. Two years from the occurrence or one year after the government enforcement action, whichever is later. No discovery rule for suits seeking damages. Plaintiff must have suffered some damages or engaged in a transaction to be rescinded. Remedies of cancellation of contract and statutory damages Deceptive act or practice need only be "in connection with" a consumer transaction. Materiality required .No supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction. In construing "Intent to deceive is not an element required for a violation of the deceptive practices portion of the act." In an individual action, actual damages or rescission; statutory damages available. If the defendant has a pattern of violation, a consumer may recover treble damages. Discretionary attorney's fees to prevailing party if Transaction must involve goods or services for "primarily personal, family, or household" use. Practices not expressly listed in the Act may become actionable Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.691 Page 25 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER household goods. do not require actual damages. division (A) of this section, the court shall give due consideration and great weight to federal trade commission orders, trade regulation rules and guides, and the federal courts' interpretation of subsection 45(a)(1) of the "Federal Trade Commission Act." action brought in bad faith or the act committed knowingly. upon a ruling by the state Attorney General or decision by state court, but no class actions are allowed for these claims. Defense If defendant furnished similar merchandise of equal or greater value as a good faith substitute for a previous representation. Ohio Rev. Code Ann. §§1345.01(A), (D), 1345.09 Ohio Rev. Code Ann. §1345.09(B) Ohio Rev. Code Ann. §1345.10(c) Ohio Rev. Code Ann. §1345.09(A) Ohio Rev. Code Ann. §1345.02(A) Ohio Rev. Stat. Ann §§ 1345.02(A), (C) Ohio Rev. Code Ann. §§1345.09(A), (B), (F) Ohio Rev. Code Ann. §§1345.01(A), 1345.09(B),1345.02(B )(5) Parker v. I&F Insulation Co., 730 N.E.2d 972, 978-79 (Ohio 2000). Weaver v. Armando's Inc., No. 02-153, 2003Ohio App. LEXIS 4273, at*16 (Ohio Ct. App. Sept.3, 2003). New Phila., Inc. v. Sagrilla, No. 01-04- 0033,2002 WL 1467771, at *5 (Ohio Ct. App. June 26,2002). Rose v. Zaring Homes, Inc., 702 N.E.2d 952, 956 (Ohio Ct. App. 1997). Perkins v. Stapleton Buick- GMC Truck, Inc., No. 2001-10,2001 Ohio App. Lexis 2651, at*11- 12 (Ohio Ct. App. June 15,2001). Oklahoma Consumer Protection Act Okla. Stat. Ann. tit. 15, §§ 751, et seq. Private right of action allowed. Class actions allowed. Three years for damages claims, one year for penal claims. Deceptive trade practice is a misrepresentation or omission that "could reasonably be expected to deceive or mislead a person" to that person's detriment. The challenged practice must have caused the plaintiff's injuries. Misrepresentation or omission must "have the capacity to deceive the customer." Whether knowledge is required depends upon the particular provision alleged to have been violated. Actual damages and reasonable attorney's fees; up to $10,000 in costs if the other party asserts a claim or defense in bad faith. For individual actions only, if the unlawful acts are “unconscionable," discretionary award up to$2,000 per act. Unlawful conduct need not implicate a public interest to be actionable. Court may award attorney's fees to non- prevailing party for bad faith or frivolous claims. Okla. Stat. Ann. tit. 15,§§ 761.1(A), (B) Okla. Stat. Ann. tit. 15,§§ 761.1(A), (B) Okla. Stat. Ann. tit. 15, §752(13) Okla. Stat. Ann. tit. 15, §§753, 761.1(A) Okla. Stat. Ann. tit. 15,§§ 752(13), (14); but see Okla. Stat. Ann. tit. 15, §§ 753(2)-(5); tit.78, § 53(3) (requiring knowledge of a false representation). Okla. Stat. Ann. tit. 15, §§761.1(A), (B) Okla. Stat. Ann. tit. 15, §761.1(A) Patterson v. Beall, 19P.3d 839, 846 (Okla.2000). Patterson v. Beall, 19P.3d 839, 846 (Okla.2000). Brashears v. Sight 'NSound Appliance Ctrs.,981 P.2d 1270, 1273-79 (Okla. 1999). Patterson v. Beall, 19P.3d 839, 847 n.12 (Okla.2000). Patterson v. Beall, 19 P.3d839, 846-47 (Okla. 2000). Patterson v. Beall, 19 P.3d 839, 847 n.12 (Okla. 2000). Patterson v. Beall, 19P.3d 839, 847 n.12 (2000). Patterson v. Beall, 19 P.3d839, 847 (Okla. 2000). Oregon Unlawful Trade Practices Act ("UTPA") Or. Rev. Stat. §§646.605, et seq. Private right of action. Applies to goods obtained primarily for personal, family, or household purposes. Class actions allowed. One year from discovery of the deceptive practice. Must suffer "ascertainable loss of money or property" to recover "actual damages. “Plaintiff is required to plead and prove some actual injury. Ascertainable loss must be "as a result of willful use or employment" of unlawful "methods, acts or practices. “Plaintiff must have "relied in fact" on Materiality required. A person engages in an unlawful practice when in the course of the person's business, vocation or occupation the person does any of the following: Concurrent with tender or While scienter is not required to establish violation of the UTPA, plaintiff must prove "willful use or employment" of unlawful practice in In individual actions, greater of actual damages or $200; reasonable attorney's fees may be awarded to the prevailing party. Discretionary punitive damages are awardable Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Upon commencement of action, plaintiff must mail copy of the complaint to state Attorney General. Trade practice must have a sufficient Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.692 Page 26 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER certain misrepresentations. Reliance not necessary for omissions. delivery of any real estate, goods or services fails to disclose any known material defect or material nonconformity. order to recover damages. However, "willful violation" means only that the actor should have known the act was unlawful. only when jury finds deterrence is necessary and deception is aggravated. Attorney’s fees are available in class actions. Statutory damages may be recover on behalf of class members only if "ascertainable loss" results from reckless or knowing acts. nexus in Oregon to give rise to a claim. Or. Rev. Stat. §§646.638(1), (8),646.605(6)(a) Or. Rev. Stat. §§646.605(6)(a) Or. Rev. Stat. §646.638(6) Or. Rev. Stat. §646.638(1) Or. Rev. Stat. § 646.638(1) Or. Rev. Stat. § 646.608(t) Or. Rev. Stat. §§646.605(10); 646.638(1) Or. Rev. Stat. §§ 646.638(1), (3), (4), (8)(a) Or. Rev. Stat. § 646.638(2) Weigel v. Ron Tonkin Chevrolet Co., 690 P.2d488, 492-93 (1984). Creditors Protective Ass'n v. Britt, 648 P.2d414, 416 (Or. Ct. App.1982). Sanders v. Francis, 561P.2d 1003, 1006 (Or. 1977); Feitler v. Animation Celection, Inc., 13 P.3d1044, 1050 (Or. Ct. App.2000). Raudebaugh v. Action Pest Control, Inc., 650P.2d 1006, 1009 (Or. Ct. App. 1982). Crooks v. Payless Drug Stores,592 P.2d 196, 199 (1979). High v. Davis, 584 P.2d 725, 736 (Or. 1978) (en banc) (“We … do not believe that the claimants will be unjustly enriched. They are receiving what they bargained and paid for.”); Winters v. County of Clatsop, 150 P.3d 1104, 1108 (Or. Ct. App. 2007) (“[W]e agree with the [defendant] that plaintiff has not carried her burden . . . Under the circumstances, it is not unjust to deny restitution and to honor the terms of the bargain. . . that [plaintiff] accepted.”). Julian-Ocampo v. Air Ambulance Network, Inc., No. 00-1262, 2001 U. S. Dist. Lexis 22173, at *7-8 (D.Or. 2001). Pennsylvania Unfair Competition Acts or Practices 73 Pa. Cons. Stat. §§201-1, et seq. Private right of action allowed. Class actions allowed. Six years. Must suffer "ascertainable loss of money or property" to recover "actual damages. " Plaintiff must show "justified reliance" for common-law fraud. Causal connection between unlawful practices and damages required. Plaintiff must show materiality for common-law fraud-based deceptive acts and practices. Plaintiff must show elements of common- law fraud, including knowledge of fraud or reckless disregard thereto. Actual damages or $100, whichever is greater; discretionary treble damages and reasonable attorney's fees. Discretionary punitive damages are recoverable. Discretionary attorney's fees are recoverable. SOL for unjust enrichment claims is 4 years Act restricted to those goods and services purchased or leased "primarily for personal, family or household purposes. "No right to jury trial. 73 Pa. Cons. Stat. § 201-9.2 73 Pa. Cons. Stat. § 201-9.2 73 Pa. Cons. Stat. § 201-9.2(a) 73 Pa. Cons. Stat. § 201-9.2(a) 73 Pa. Cons. Stat. § 201-9.2(a) 73 Pa. Cons. Stat. § 201-9.2(a) Agliori v. Met. Life Ins. Co., 879 A.2d 315, 319 (2005). Agliori v. Met. Life Ins. Co., 879 A.2d 315, 319 (2005). Drelles v. Mfrs. Life Ins. Co., 881 A.2d 822, 831 (2005). Weinberg v. Sun Co., Inc., 777 A.2d 442, 446 (Pa. 2001). Weinberg v. Sun Co., Inc., 777 A.2d 442, 446 (2001); Toy v. Metro. Life Ins., Co., 863 A.2d 1, 11 Debbs v. Chrysler Corp., 810 A.2d137, 155 (Pa. Super. Ct. 2002); Zwiercan v. General Motors Corp., No. 3235, 2003 WL 1848571, at *1-2 Debbs v. Chrysler Corp.,810 A.2d 137, 155 (Pa. Super. Ct. 2002). Arsonson v. Creditrust Corp., 7F. Supp. 2d 589, 594 (W.D. Pa.1998); In re Bryant, 111 Greiner v. Erie Ins. Exch., No. 3053, 2000 WL33711041, at *7 (Pa. Ct. Com. Pl. Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.693 Page 27 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER (Pa. Super. Ct. 2004). (Pa. Ct. Com. Pl. Mar. 18, 2003). B.R.474, 480 (E.D. Pa. 1990) (unfair conduct breaching parties' contract justified attorney's fees). Nov. 13, 2000). Rhode Island Unfair Trade Practices& Consumer Protection Act R.I. Gen. Laws §§ 6-13.1-1, et seq. Private right of action allowed. Class actions allowed. Class certification governed by special rules. Ten years. Must suffer "ascertainable loss of money or property" to recover "actual damages." Ascertainable loss must be "as a result of the use or employment . . . of a method, act or practice declared unlawful." Covers material misrepresentations. Undecided. Actual damages or $200, whichever is greater; discretionary punitive damages and reasonable attorney's fees. Must show malice, bad faith, or intent to harm for punitive damages. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Limited to purchases or leases of goods or services for personal, family, or household purposes. Business entities have no private right of action. R.I. Gen. Laws §§ 6- 13.1-5.2(a), (b) R.I. Gen. Laws §§ 6-13.1-5.2(a), (b) R.I. Gen. Laws § 9-1-13 R.I. Gen. Laws § 6- 13.1-5.2(a) R.I. Gen. Laws § 6- 13.1-5.2(a) R.I. Gen. Laws §§ 6- 13.1-5.2(a), (d) R.I. Gen. Laws § 6- 13.1-5.2(a) Park v. Ford Motor Co.,844 A.2d 687, 693 (R.I.2004). Park v. Ford Motor Co.,844 A.2d 687, 691- 92 (R.I. 2004). Groff v. Am. Online, Inc., No. 97-0331, 1998 WL 307001, at *5 (R.I. Super. Ct. May 27, 1998). Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 182 F.R.D.386, 400 (D.R.I. 1998); Park v. Ford Motor Co., 844 A.2d 687,691-92 (R.I. 2004). Rosetta v. Moretti, No. 98-89, 2005 WL 1109638, at *8 (R.I. Super. May 4, 2005) (granting motion for judgment as matter of law in favor of defendant because plaintiffs failed to establish that allowing defendant to retain the negotiated purchase price would be inequitable). Scully Signal Co. v. Joyal,881 F. Supp. 727, 741, 745 (D.R.I. 1995); ERI Max Entm't Inc., v. Streisand,690 A.2d 1351, 1354 (R.I.1997). South Carolina Unfair Trade Practices Act S.C. Code Ann. §§ 39-5-10, et seq. Private right of action allowed. Class actions not allowed. Three years after discovery of conduct. Requires "ascertainable loss of money or property." Ascertainable loss must be "as a result of the use or employment . . . of an unfair or deceptive method, act or practice." Must be a material misrepresentation of fact. Violation need not be knowing or willful to recover actual damages; must be willful for treble damages. Actual damages; discretionary treble damages for willful or knowing violations. Punitive damages are not permitted. Attorney's fees awarded to prevailing plaintiff, reasonably determined by six enumerated factors. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. An adverse effect on public interest must be proven by "specific facts." S.C. Code Ann. § 39- 5-140(a) S.C. Code Ann. § 39-5-140(a) S.C. Code Ann. § 39-5-150 S.C. Code Ann. § 39- 5-140(a) S.C. Code Ann. § 39- 5-140(a) S.C. Code Ann. § 39-5- 140(a) Prestwick Golf Club, Inc. v. Prestwick Ltd. P'ship, 503 S.E.2d 184, 188 (S.C. Ct. App. 1998). Omni Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d502, 507 (4th Cir. 1992). Inman v. Ken Hyatt Chrysler Plymouth, Inc.,363 S.E.2d 691, 692 (S.C.1988) (requiring "capacity to deceive"). Clarkson v. Orkin Exterminating Co., 761 F.2d 189, 191 (4th Cir. 1985) (puffing not misrepresentation); Wingard v. Exxon Co., USA, 819 F. Supp. 497, 506 (D.S.C. 1992). Haley Nursery Co. v. Forrest, 381 S.E.2d 906,909 (S.C. 1989); Inman v. Ken Hyatt Chrysler Plymouth, Inc., 363S.E.2d 691, 692 (S.C.1988) (noting that intent to deceive is not required). Tousley v. N. Am. Van Lines, Inc., 752 F.2d 96, 104-05 (4th Cir. 1985) (reversing lower court's award of punitive damages); Rowel v. Whisnant, 600 S.E.2d 96, 99 (S.C. Ct. App. 2004); Payne v. Holiday Towers, Inc., 321S.E.2d 461, 466 (S.C. Ct. App.1984). Johnston v. Brown, 348 S.E.2d 391, 395 (S.C. Ct. App. 1986) (holding plaintiff cannot recover under unjust enrichment where he received the agreed to consideration for the benefit conferred), rev’d on other grounds, 357 S.E.2d 450 (S.C. 1987). Singleton v. Stokes Motors, Inc., 595 S.E.2d461, 466 (S.C. 2004);Jeffries v. Phillips, 451S.E.2d 21, 23 (S.C. Ct. App.1994). South Dakota Private right of Class actions Four years after Plaintiff must claim to Requires "proof of an Materiality required. It is a A deceptive Actual damages Unjust enrichment is None found. Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.694 Page 28 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Deceptive Trade Practices and Consumer Protection Act S.D. Codified Laws §§37-24-1 et seq. action allowed. allowed. occurrence or discovery of conduct. be "adversely affected" by an unlawful act or practice and have "actual damages." intentional misrepresentation or concealment of a fact on which plaintiff relied and that caused an injury to the plaintiff." deceptive act to practice for any person to: Knowingly and intentionally act, use, or employ any deceptive act or practice, fraud, false pretense, false promises or misrepresentation or to conceal, suppress, or omit any material fact in connection with the sale or advertisement of any merchandise, regardless of whether any person has in fact been misled, deceived, or damaged thereby. act/omission must be knowing and intentional. only; no punitive damages. Actual damages are synonymous with compensatory damages. unavailable if defendant has provided consideration for benefit received. S.D. Codified Laws § 37-24-31 S.D. Codified Laws § 37-24-31 S.D. Codified Laws § 37-24-33 S.D. Codified Laws § 37-24-31 S.D. Codified Laws § 37-24- 6(1) S.D. Codified Laws § 37-24-6(1) S.D. Codified Laws § 37-24-31 Wyman v. Terry Schulte Chevrolet, Inc., 584N.W.2d 103, 105 (S.D.1998). Northwestern Pub. Serv. v. Union Carbide Corp., 236 F. Supp. 2d 966, 973-74 (D.S.D. 2002). Wyman v. Terry Schulte Chevrolet, Inc., 584 N.W.2d103, 107 (S.D. 1998). Parker v. W. Dakota Insurors, Inc., 605 N.W.2d 181, 187 (S.D. 2000) (plaintiff cannot recover under unjust enrichment where defendant already paid consideration for the benefit conferred). Tennessee Consumer Protection Act Tenn. Code Ann. §§ 47-18-101, et seq. Private right of action. Plaintiff must have purchased goods for individual, personal, family or household purpose. Class actions not allowed. One year after discovery of deceptive act but not more than five years after conduct. Requires "ascertainable loss of money or property." Requires an "ascertainable loss . . . as a result of the use or employment . . . of an unfair or deceptive act or practice." No reliance requirement, but plaintiffs must show proximate cause of harm. Undecided. Unfair or deceptive act "need not be willful or knowingly made to recover actual damages;" statute contemplates recovery for negligence. Willful and knowing acts are required for treble damages. Actual damages and attorney's fees; discretionary treble damages for "willful and knowing violation." Punitive damages not available. Unjust enrichment is unavailable if defendant has provided consideration for benefit received. Unjust enrichment claims require that plaintiff lacks a legal remedy. Damages can be limited to settlement offer. Defendants may recoup attorney's fees and costs from plaintiffs who bring frivolous actions. Tenn. Code Ann. §§ 47-18-103, 47-18- 109(a)(1) Tenn. Code Ann. § 47-18-109(a)(1) Tenn. Code Ann. § 47-18-110 Tenn. Code Ann. § 47- 18-109(a)(1) Tenn. Code Ann. § 47-18-109(a)(1) Tenn. Code Ann. §§ 47- 18-109(a)(1), (3) Tenn. Code Ann. §§ 47-18-109(c)(4), 47- 18-109(e)(2) Walker v. Sunrise Pontiac-GMC Truck, Inc.,249 S.W.3d 301, 308-11 (Tenn. 2008). Harvey v. Ford Motor Credit Co., No. 03A01-9807- CV- 00235, 1999 WL486894, at *2 (Tenn. Ct. App. July 13, 1999) (proximate cause required). Smith v. Scott Lewis Chevrolet, Inc., 843S.W.2d 9, 12-13 (Tenn. Ct. App. 1992). Smith v. Scott Lewis Chevrolet, Inc., 843 S.W.2d 9,12 (Tenn. Ct. App. 1992); Paty v. Herb Adcox Chevrolet Co., 756 S.W.2d 697, 699 (Tenn. Ct. App. 1988). Paschall’s, Inc. v. Dozier, 407 S.W.2d 150, 155 (Tenn. 1966); McKee v. Meltech, Inc., No. 10- 2730, 2011 WL 1770461, at *10 (W.D. Tenn. May 9, 2011) (rejecting unjust enrichment claim where defendant “has already given consideration for any benefit that [plaintiff]’s services provided”); Weather Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.695 Page 29 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Doctor Servs. Co., Inc. v. Stephens, No. E2000-1427-COA-R3- CV, 2001 WL 849540, at *2-3 (Tenn. Ct. App. July 27, 2001). Freeman Indus. LLC v. Eastman Chem. Co., 172 S.W.3d 512, 525-26 (Tenn. 2005). Texas Deceptive Trade Practices Act Tex. Bus. & Com. Code§§ 17.41, et seq. Private right of action allowed. Class actions allowed. Two years after occurrence or discovery by reasonable diligence. Must cause "economic damages or damages for mental anguish." Act or practice must be a "producing cause" of damages and "relied on by a consumer to the consumer's detriment." The misrepresentation must be of a material fact. Knowledge or intent is not an element unless required by a particular provision. To recover treble damages, defendant's actions must have been intentional. Actual damages, mental anguish (if intentional); and reasonable and necessary attorney's fees. Punitive damages of not more than three times actual damages are available for intentional acts. Requires; 1) valuable services were rendered or materials furnished; 2) for the person sought to be charged; 3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him; 4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged. Presuit notice letter by certified mail, including specific allegations and all damages sought, required at least 60 days before the complaint is filed. Defendants may recoup attorney's fees and costs from plaintiffs who bring a bad-faith or harassment action. Tex. Bus. & Com. Code §17.50 Tex. Bus. & Com. Code §17.50 Tex. Bus. & Com. Code §17.565 Tex. Bus. & Com. Code §17.50(a) Tex. Bus. & Com. Code §17.50(a) Tex. Bus. & Com. Code § 17.46(b)(24) Tex. Bus. & Com. Code §17.50(b) Tex. Bus. & Com. Code §§17.50(b), (d) Tex. Bus. & Com. Code §§17.50, 17.50(c) Mahoney v. Cupp, 638 S.W.2d 257, 261 (Tex. Ct. App. 1982). McAdams v. Cap. Prods. Corp., 810 S.W.2d 290,292-93 (Tex. Ct. App.1991). Church & Dwight Co. v. Huey, 961S.W.2d 560, 567 (Tex. Ct. App. 1997). Smith v. Herco, Inc., 900S.W.2d 852, 859 (Tex. Ct. App. 1995). Gunn Infiniti, Inc. v. O'Byrne,996 S.W.2d 854, 860-61 (Tex.1999); Houston Livestock Show v. Hamrick, 125 S.W.3d555, 584 (Tex. Ct. App. 2003). Bashara v. Baptist Mem'l Hosp. Sys., 685 S.W.2d 307, 310 (Tex. 1985) Utah Consumer Sales Practice Act Utah Code Ann. §§ 13-11-1, et seq. Private right of action allowed. Act contains specific class action requirements. Two years. Requires that plaintiff suffer a "loss. “Loss" should be construed more broadly than "damages." Requires a plaintiff suffer loss as a result of violations of the Act. Materiality of fact required. The purpose of the act is "to make state regulation of consumer practices not inconsistent with the policies of the Federal Trade Commission Act relating to consumer protection. “The FTC requires that the representation, omission, or practice is material. Requires knowing or intentionally deceptive act or practice. In individual actions, greater of actual damages or $2,000; reasonable attorney's fees. In class actions, equitable relief ONLY unless specific actions of defendant previously declared unlawful by court or other authority. Unjust enrichment is unavailable if plaintiff has received the benefit of its bargain. Unjust enrichment claims require that plaintiff lacks a legal remedy. Bona fide error defense limits remedy to amount defendant was unjustly enriched. Good faith is an affirmative defense. Utah Code Ann. § 13- Utah Code Utah Code Ann. § Utah Code Ann. § 13- Utah Code Ann. § 13- Utah Code Ann. § 13-11-2 Utah Code Ann. § Utah Code Ann. §§ 13- Utah Code Ann. Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.696 Page 30 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER 11-19 Ann. §§ 13- 11-19(4), 13-11-20 13-11-19(8) 11-19(2) 11-19(2) 13-11-4(2) 11-19(2), (4), (5) §§ 13-11-2(6), 13- 11-19(4)(c), (5) Andreason v. Felsted,137 P.3d 1, 4 (Utah Ct. App. 2006). Rawson v. Conover, 20 P.3d 876, 883 (Utah 2001). S. Title Guar. Co., Inc. v. Bethers, 761 P.2d 951, 955 (Utah Ct. App. 1988); Bray Lines Inc. v. Utah Carriers, Inc., 739 P.2d 1115, 1117 (Utah Ct. App. 1987) (holding unjust enrichment does not occur when a party receives the benefit of its bargain). Mann v. Am. W. Life Ins. Co., 586 P.2d 461, 465 (Utah 1978); Ockey v. Lehmer, 189 P.3d 51, 61 n.42 (Utah 2008); Am. Towers Owners Ass’n, Inc. v. CCI Mech., Inc., 930 P.2d 1182, 1193 (Utah 1996) (“The doctrine is designed to provide an equitable remedy where one does not exist at law.”), abrogated on other grounds by Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 221 P.3d 234 (Utah 2009); Nickerson Co. v. Energy W. Mining Co., No. 20090221–CA, 2009 WL 4681778, at *2 (Utah Ct. App. Dec. 10, 2009) (barring recovery on an unjust enrichment theory where there is an express contract). Sampson v. Richins, 770P.2d 998, 1005 (Utah Ct. App. 1989). Vermont Private right of action allowed. Class actions allowed. Six years. Suit can be brought by "[a]ny consumer Cause of action available to consumer The misleading effects must be material measured No intent or bad faith required. If Actual damages, reasonable attorney's Unjust enrichment is unavailable if No derivative liability absent direct Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.697 Page 31 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER Consumer Fraud Act Vt. Stat. Ann. tit. 9, §§2451, et seq. who contracts for goods or services in reliance upon false or fraudulent representations . . . or who sustains damages or injury as a result of any false or fraudulent representations." who contracts for goods or services in reliance upon false or fraudulent representations or who sustains damages or injury as a result of such representations. Actual reliance is not required; a statement need only be capable of misleading the consumer. by an objective standard, that is, likely to affect a reasonable consumer's conduct or decision with regard to a product. defendant knows or should know that omission is important, materiality is presumed. fees, exemplary damages not to exceed three times actual damages. defendant has provided consideration for benefit received. participation in the unfair or deceptive acts, direct aid to the actor, or a principal/agent relationship. Vt. Stat. Ann. tit. 9, §2461(b) Vt. Stat. Ann. tit. 9, §2461(b) Vt. Stat. Ann. tit. 12, §511 Vt. Stat. Ann. tit. 9, §2461(b) Vt. Stat. Ann. tit. 9, §2461(b) Vt. Stat. Ann. tit. 9, § 2461(b) Vermont Mobile Home Owners' Ass'n, Inc. v. Lapierre, 94 F. Supp. 2d519, 520 (D. Vt. 2000). Vermont Mobile Home Owners' Ass'n, Inc. v. Lapierre, 94 F. Supp. 2d519, 520 (D. Vt. 2000). Jordan v. Nissan N. Am., 853 A.2d 40, 44 (Vt. 2004). Carter v. Gugliuzzi, 716 A.2d 17, 23 (Vt. 1998). Carter v. Gugliuzzi, 716A.2d 17, 23-24 (Vt.1998); Winston v. Johnson & Dix Fuel, 515A.2d 371, 376 (Vt. 1986);Poulin v. Ford Motor Co.,513 A.2d 1168, 1171 (Vt.1986). Gramatan Home Investors Corp. v. Starling, 470 A.2d 1157, 1161-62 (Vt. 1983). Ray Reilly’s Tire Mart, Inc. v. F.P. Elnicki, Inc., 537 A.2d 994, 995 (Vt. 1987) (“[I]f the [defendant] has given any consideration to any person for the [benefit], it would not be unjust for him to retain the benefit without paying the furnisher.” (quoting Paschall’s v. Dozier, 407 S.W.2d 150, 155 (Tenn. 1966))); Will v. Mill Condo. Owners’ Ass’n, Inc., No. 457- 10-01 WRCV, 2002 WL 34340312 (Vt. Sup. Ct. July 5, 2002). State v. Stedman, 547 A.2d1333, 1335-36 (Vt. 1988). Virginia Consumer Protection Act Va. Code Ann. §§ 59.1-196 et seq. Private right of action. Class actions generally not allowed. Two years. Right of action runs from the date of injury and not from the date of discovery unless the claim is solely equitable. Actual loss required to initiate action. Requires loss as the result of a violation of the Act. Reliance is necessary to state a claim. A false misrepresentation must be of an existing fact, not a mere expression of an opinion. Intent requirement of fraud applies. Misrepresentation by omission of a material fact requires evidence of a knowing or deliberate decision to conceal the fact. Provides for greater of actual damages or $500, reasonable attorney's fees, and costs; if the violation was willful, then there is discretion for the court to award discretionary treble damages or $1,000. If a defendant tenders a cure offer, it cannot be liable for attorney's fees or costs unless actual damages exceed the cure offer. Bona fide error or lack of control is a defense; attorney's fees can be awarded nonetheless. Acceptance of cure offer forecloses further actions based on same allegations of fact. Va. Code Ann. § 59.1- 204(A) Va. Code Ann. § 59.1-204(A) Va. Code Ann. §§ 8.01-230, 59.1- 204(A) Va. Code Ann. § 59.1- 204(A) Va. Code Ann. § 59.1-200 (A)(8) Va. Code Ann. §§ 59.1- 204(A)- (C) Va. Code Ann. §§ 59.1-204(A), (C), 59.1-207 Almeter v. Va. Dep't Almeter v. Va. Gavin v. Koons Buick Alston v. Crown Auto, Graham v. RRR, LLC, 202 F. Cooper v. GGGR Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.698 Page 32 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER of Taxation, No. LL- 821-4, 2000 WL 1687589, at *1 n.1 (Va. Cir. Ct. Nov. 6, 2000). Dep't of Taxation, No. LL-821- 4,2000 WL 1687589, at *1 n.1 (Va. Cir. Ct. Nov. 6,2000). Pontiac GMC, Inc., 28Fed. Appx. 220, 223 (4th Cir. 2002); Alston v. Crown Auto, Inc., 224F.3d 332, 336 (4th Cir.2000). Inc.,224 F.3d 332, 336 (4th Cir.2000); Polk v. Crown Auto, Inc., 228 F.3d 541, 543 (4th Cir. 2000); Cooper v. GGGR Invs., LLC, 334 B.R. 179,188 (E.D. Va. 2005). Supp. 2d483, 491 (E.D. Va. 2002); Lambert v. Downtown Garage, 553 S.E.2d 714,717 (Va. 2001). Invs., LLC, 334 B.R. 179, 188 (E.D. Va. 2005); Lambert v. Downtown Garage, Inc., 553 S.E.2d 714, 718 (2001); Weiss v. Cassidy Dev. Corp., No. 206766,2003 WL 22519650, at*2 (Va. Cir. Ct. Aug. 18,2003). Washington Unfair Business Practices - Consumer Protection Act Wash. Rev. Code Ann.§§ 19.86.010, et seq. Private right of action. Class actions permitted. Four years. Allows cause of action by any person who is injured in his or her business or property by a violation of the Act. The knowing failure to reveal something of material importance is deceptive within the Act. A causal link must exist between the unfair or deceptive act and the injury suffered. A plaintiff establishes causation by showing that he or she relied upon a misrepresentation of fact; however, some cases hold that a plaintiff need not prove reliance to establish an unfair trade practice. The knowing failure to reveal something of material importance is deceptive within the Act. Intent not required if the action has the capacity to deceive a substantial portion of the purchasing public. Provides for actual damages, attorneys' fees, discretionary treble damages not to exceed$25,000. Defense if acts or practices complained of have an adverse effect on the public interest or are reasonable in relation to the development and preservation of business. Wash Rev. Code Ann. §19.86.090 Wash Rev. Code Ann. §19.86.090 Wash Rev. Code Ann. §19.86.120 Wash Rev. Code Ann. §19.86.090 Wash Rev. Code Ann. §19.86.090 Wash Rev. Code Ann. §19.86.920 Smith v. Behr Process Corp., 54 P.3d 665, 675 (Wash. Ct. App. 2002). Nordstrom, Inc. v. Tampourlos, 733 P.2d 208, 210-11 (1987);Girard v. Myers, 694P.2d 678, 685-86 (Wash. Ct. App. 1985). Robinson v. Avis Rent-A- Car Sys. Inc., 22 P.3d818, 824 (Wash Ct. App.2001). Pickett v. Holland Am. Line- Westours, Inc., 35 P.3d351, 360 (2001); Leingang v. Pierce Cty. Med. Bureau, Inc., 930 P.2d 288, 296 (1997); State v. A.N.W. Seed Corp., 802 P.2d 1353,1355; Wash. v. Williams Chrysler Plymouth, 553P.2d 423, 436-37 (1976); Robinson v. Avis Rent-A- Car Sys. Inc., 22 P.3d 818,823 (Wash Ct. App. 2001); Testo v. Russ Dunmire Olds., 554 P.2d 349, 356-57 (Wash. Ct. App. 1976). Robinson v. Avis Rent-A-Car Sys. Inc., 22 P.3d 818, 824 (Wash Ct. App.2001); Testo v. Russ Dunmire Olds., 554 P.2d 349, 356-57 (Wash. Ct. App.1976). Haner v. Quincy Farm Chems., Inc., 649 P.2d 828, 831 (1982). Leingang v. Pierce County Med. Bureau, Inc., 930 P.2d 288, 296 (1997). West Virginia Consumer Credit and Protection Act W. Va. Code Ann. §§46A-1-101, et seq. Private right of action. Class actions permitted. Two years. Statute of limitations begins to run when fraud discovered or should have been discovered by reasonable diligence. Plaintiff must suffer ascertainable loss of money in order to bring a claim. A consumer is not required to list specific amount of actual damages. Deceptive acts prohibited whether or not any person has in fact been misled, deceived or damaged Ascertainable loss must have been suffered as a result of a prohibited act. Reliance on affirmative misrepresentation s must be proven In false advertising claims, the offending misrepresentation must be a material fact. Prohibited omissions must be made with intent to deceive. In false advertising claims, the offending misrepresentation must be made with the intent that others rely on it. Greater of actual damages or$200. Punitive damages and attorneys' fees not allowed. Act should not be construed to prohibit acts or practices that are reasonable in relation to the development and preservation of business. Must notify Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.699 Page 33 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER thereby. in certain instances. defendant of alleged violation and provide 20 days for cure offer in certain instances. W. Va. Code Ann. § 46A-6-106(a) W. Va. Code Ann. § 46A-6-106(a) W. Va. Code Ann. § 55-2-12 W. Va. Code Ann. § 46A-6-106(a) W. Va. Code Ann. §§ 46A-6- 102(7)(M), 46A-6- 106(a) W. Va. Code Ann. §§ 46A-6- 102(7)(M), 46A-6- 106(a) W. Va. Code Ann. § 46A-6- 102(7)(M) W. Va. Code Ann. § 46A-6-102(7)(M) W. Va. Code Ann. § 46A-6-106(a) W. Va. Code Ann. §§ 46A-6- 101(2), 46A-6- 106(b) In re W. Va. Rezulin Litig., 585 S.E.2d 52, 74 (2003). Brumbaugh v. Princeton Partners, 985 F.2d 157,161- 62 (4th Cir. 1993). In re W. Va. Rezulin Litig., 585 S.E.2d 52, 75 (2003). White v. Wyeth, 705S.E.2d 828, 837 (2010). White v. Wyeth, 705 S.E.2d 828, 837 (2010). Virden v. Altria Group, Inc.,304 F.Supp. 2d 832, 850 (N.D. W. Va. 2004). Wisconsin Deceptive Trade Practices Act Wis. Stat. § 100.18 Private right of action. Class actions permitted. Three years. Discovery rule does not apply. A plaintiff must have suffered a pecuniary loss. Pecuniary loss must be because of a violation of Section 100.18 in order to state a claim. Must show a causal connection between the alleged conduct and any pecuniary loss suffered. Individual reliance required. Representation must be untrue, deceptive, or misleading. Puffery is not actionable. Material omissions are not actionable. Representation must be made with knowledge that the representation was false. There is strict liability for misrepresentations. Plaintiffs must show that the defendant's intentionally induced the public to buy the merchandise. Allows only actual damages, costs and attorneys' fees. Discretionary doubling of pecuniary damages. Punitive damages are recoverable but plaintiff cannot get duplicative recovery. Unjust enrichment is unavailable if defendant has provided consideration for benefit received. Good faith may be an affirmative defense. Discovery rule does not apply to toll the statute of limitations. Wis. Stat. §100.18(11)(b)(2) Wis. Stat. §100.18(11)(b)(2) Wis. Stat. §100.18(11)(b)(3) Wis. Stat. §100.18(11)(b)(2) Wis. Stat. §100.18(11)(b)(2) Wis. Stat. §§ 100.18(11)(b)(2),100.20 (5) Tietsworth v. Harley- Davidson, Inc., 661N.W.2d 450, 452 (Wis. Ct. App. 2003). Skrupky v. Elbert, 526N.W.2d 264, 273-74 (Wis. Ct. App. 1994). Reusch v. Roob, 610N.W.2d 168, 176 (Wis. Ct. App. 2000). Valente v. Sofamor, S.N.C.,48 F. Supp. 2d 862, 874 (E.D. Wis. 1999); State v. Satermus, 361 N.W.2d 728,731 (Wis. Ct. App. 1984). State v. Am. TV & Appliance of Madison, Inc., 430 N.W.2d 709, 712 (1988). Shephard Invs. Int'l, Inc. v. Verizon Commc'ns., Inc., 373 F. Supp. 2d 853, 872 (E.D. Wis.2005); Valente v. Sofamor, S.N.C., 48 F. Supp. 2d 862, 874 (E.D. Wis. 1999). Sydney v. Badgerland Mobile Homes, Inc., 659 N.W.2d 887,894-95 (Wis. Ct. App. 2003);Seay v. Gardner, 541 N.W.2d837, 839 (Wis. Ct. App. 1995). Tri-State Mech., Inc. v. Northland Coll., 681 N.W.2d 302, 305-06 (Wis. Ct. App. 2004) (denying unjust enrichment claim where defendant “has fully paid for the benefits it received”) Am. Fed. of State v. Brown County, 432 N.W.2d 571,574-75 (1988); Skrupky v. Elbert, 526 N.W.2d 264,273-74 (Wis. Ct. App.1994). Wyoming Consumer Protection Law Wyo. Stat. Ann. §§ 40-12-101 et seq. Private right of action. Cause of action only for uncured unlawful deceptive trade practices. An uncured practice is one that remains unresolved after the consumer provides statutory notice to the alleged violator. Class actions permitted. Written notice of the alleged violation must be given to defendant within one year of discovery or two years of occurrence, whichever is first. Plaintiff may only bring claims for damages she has actually suffered. Damages must be suffered by a consumer as a result of unlawful deceptive trade practices. Materiality of fact required. Requires that defendant knowingly engage in unfair or deceptive trade practices. Provides for actual damages and reasonable attorneys' fees (attorneys' fees in class action only if actual damages found and awarded); any monies recovered in a class action which cannot be distributed to consumers within one year after final judgment shall be returned to the Prefiling demand notice requesting cure required within a year of discovery or two years following the transaction, whichever is earlier. Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.700 Page 34 of 35 Variations in State Consumer Protection and Deceptive Trade Practices Laws 82854911v1 JDX PRIVATE RIGHT OF ACTION CLASS ACTION PROHIBITION STATUTE OF LIMITATIONS & DISCOVERY RULE ACTUAL INJURY DECEPTION RELIANCE / PROXIMATE CAUSATION AFFIRMATIVE ACTS / MATERIAL OMISSIONS SCIENTER DAMAGES & REMEDIES LIMITATIONS ON UNJUST ENRICHMENT OTHER defendants. Wyo. Stat. Ann. §§ 40-12-102(a)(ix), 40-12-108, 40-12- 108(a), 40-12-109 Wyo. Stat. Ann. §§ 40-12- 102(a)(ix), 40- 12-108, 40-12- 108(a), 40-12- 109 Wyo. Stat. Ann. § 40-12-109 Wyo. Stat. Ann. § 40- 12-108(a) Wyo. Stat. Ann. § 40- 12-108(a) Wyo. Stat. Ann. § 40-12-105(a) Wyo. Stat. Ann. § 40- 12-108(b) Wyo. Stat. Ann. §§ 40-12-102(a)(ix), 40- 12-108(a), 40-12-109 Big-O Tires v. Santini, 838 P.2d 1169, 1177 (1992). Case 3:16-cv-00369-BAS-JMA Document 25-2 Filed 02/27/17 PageID.701 Page 35 of 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84397504v1 1. Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS SEDGWICK LLP STEPHANIE A. SHERIDAN, State Bar No. 135910 stephanie.sheridan@sedgwicklaw.com ANTHONY J. ANSCOMBE, State Bar No. 135883 anthony.anscombe@sedgwicklaw.com MEEGAN B. BROOKS, State Bar No. 298570 meegan.brooks@sedgwicklaw.com 333 Bush Street, 30th Floor San Francisco, CA 94104-2834 Telephone: 415.781.7900/Facsimile: 415.781.2635 Attorneys for Defendants NEW YORK & COMPANY, INC. and NEW YORK & COMPANY STORES, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA MONICA RAEL, on behalf of herself and all others similarly situated, Plaintiff, vs. NEW YORK & COMPANY, INC., a DELAWARE corporation, NEW YORK & COMPANY STORES, INC., a NEW YORK corporation, and DOES 1- 50, inclusive, Defendants. Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE PLAINTIFF’S THIRD AMENDED COMPLAINT Judge: Cynthia A. Bashant Date: Monday, April 3, 2017 NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Case 3:16-cv-00369-BAS-JMA Document 25-3 Filed 02/27/17 PageID.702 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84397504v1 2. Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS Defendants New York & Company, Inc. and New York & Company Stores, Inc. (together, “New York & Company,” or “NY&C”) request that the Court take judicial notice, pursuant to Federal Rules of Evidence Rule 201, of the following documents in consideration of Defendants’ concurrently-filed Memorandum of Points and Authorities in Support of its Motion to Dismiss the Third Amended Complaint (TAC) of Plaintiff Monica Rael (“Plaintiff”). Exhibit A: Signs posted in NY&C’s store in Westfield Mission Valley mall, in San Diego, California, on November 24, 2015. Exhibit B: The Court’s Order Granting in Part Defendant’s Motion to Dismiss in Azimpour v. Sears, Roebuck & Company, Case No. 15- CV-2798 JLS (WVG) (S.D. Cal Oct. 17, 2016) (Dkt. No. 22). Exhibit C: The Court’s Opinion Granting Defendant’s Motion to Dismiss in Belcastro v. Burberry Limited, Case No. 16-CV-1080 (VEC) (S.D.N.Y Feb. 23, 2017) (Dkt. No. 47). Exhibit D: The Court’s Opinion Granting Defendant’s Motion to Dismiss in Waldron, et al., v. Jos. A. Bank Clothiers, Inc., Case No. 2:12-cv-02060-DMC-JAD (D. N.J. Jan. 28, 2013) (Docket No. 22). Under Federal Rules of Evidence Rule 201, a fact is judicially noticeable when it is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. F.R.E. 201(b) (2015). Exhibits B through D are copies of official court records on file with the courts of the United States. Courts regularly take judicial notice of filings from other proceedings, where those filings are relevant to the issues in a case. See, e.g., United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (Courts “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” ); see also Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998) (the court Case 3:16-cv-00369-BAS-JMA Document 25-3 Filed 02/27/17 PageID.703 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84397504v1 3. Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS may take judicial notice of court filings and other matters of public record). Here, the decisions attached as Exhibits B through D are directly relevant to the issues in this case, as they involved deceptive pricing claims similar to Plaintiff’s claims in this case. Additionally, NY&C requests that the Court take judicial notice of the signs posted in NY&C’s Westfield Mission Valley Mall store on November 24, 2015, attached as Exhibit A. Under the “incorporation by reference” doctrine, the court “may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). This is to “[p]revent [] plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting . . . documents upon which their claims are based.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds as stated in Abrego v. Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006). Plaintiff bases this lawsuit, in part, on her claim to have been deceived by signage posted in the Mission Valley store on November 24, 2015, which allegedly advertised a discount of “70% Off” the shoes she purchased. (TAC ¶ 14.) More generally, she alleges that “Defendants convey their deceptive pricing scheme to consumers through in store signage offering steep discounts from the regular prices listed on the products’ price tags in the retail stores.” (TAC ¶ 4.) Although Plaintiff does not include a copy of any sign she viewed, the signs posted in the store on the date of Plaintiff’s purchase to advertise the “70% Off” sale are judicially noticeable because their contents are alleged in the TAC. See McMahon v. Take–Two Interactive Software, Inc., No. EDCV 13–02032–VAP (SPx), 2014 WL 324008, *2 (C.D. Cal. Jan. 29, 2014) (“When a complaint alleges UCL and FAL claims, a court may take judicial notice of and consider ‘advertising,’ including product labeling and promotional announcements, [under the incorporation by reference doctrine] even where those materials are not Case 3:16-cv-00369-BAS-JMA Document 25-3 Filed 02/27/17 PageID.704 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84397504v1 4. Case No. 3:16-cv-00369-BAS-JMA DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS attached to a complaint, because those documents are central to the UCL and FAL claims.”); Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1161 (9th Cir. 2012)(“[H]aving based his allegations on the contents and appearance of the Important Terms & Disclosure Statement, Davis can hardly complain when [Defendants] refer to the same information in their defense.”) (internal quotations omitted); Sperling v. Stein Mart, Inc. et al., case no. 5:15-cn-01411-BRO-KK, at *5 (C.D. Cal. Jan. 26, 2016) (taking judicial notice of price tags in deceptive pricing case where the complaint included allegations about information printed on the tags); see also Koehler v. Litehouse, Inc., Case No. 12-cv-4055, 2012 WL 6217635, at *3 (N.D. Cal. Dec. 13, 2012) (the allegedly deceptive “statement must be read in context of the entire advertisement”) (citing Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995)). For the foregoing reasons, NY&C respectfully requests that this Court take judicial notice of Exhibits A through D. DATED: February 27, 2017 SEDGWICK LLP By: /s/ Stephanie Sheridan Stephanie Sheridan Attorneys for Defendants NEW YORK & COMPANY, INC. and NEW YORK & COMPANY STORES, INC. Case 3:16-cv-00369-BAS-JMA Document 25-3 Filed 02/27/17 PageID.705 Page 4 of 4 Exhibit A Case 3:16-cv-00369-BAS-JMA Document 25-4 Filed 02/27/17 PageID.706 Page 1 of 4 70% all redlines take an extra off nyandcompany.com the lowest ticketed price excluded from coupons and storewide promotions. final sale! no returns or exchanges. tablesign 14” x 29.5” FIre red k/o & 100k type sign # prints no larger than 6pt! H13-tSC-12099 212230 Redlines TS.indd 5 10/28/13 2:00 PM Case 3:16-cv-00369-BAS-JMA Document 25-4 Filed 02/27/17 PageID.707 Page 2 of 4 S 12 -H LI -9 68 7 S 15 -H LI -1 43 00 shoes shoes 213027 Footwear HLI 2.indd 1 2/13/15 11:29 AM Case 3:16-cv-00369-BAS-JMA Document 25-4 Filed 02/27/17 PageID.708 Page 3 of 4 27” x 59” at 1/4 scale 6.75” x 14.75” New markdowns taken! look for the redliNes U12-eAC-9945 100k type Fire red sign # printed no larger than 6pt! Case 3:16-cv-00369-BAS-JMA Document 25-4 Filed 02/27/17 PageID.709 Page 4 of 4 Exhibit B Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/17 PageID.710 Page 1 of 15 1 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SAEID AZIMPOUR, on behalf of himself and all others similarly situated, Plaintiff, v. SEARS, ROEBUCK & COMPANY, Defendant. Case No.: 15-CV-2798 JLS (WVG) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SEARS, ROEBUCK & COMPANY’S MOTION TO DISMISS (ECF No. 13) Presently before the Court is a Motion to Dismiss or, in the Alternative, Strike Plaintiff’s First Amended Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(f) filed by Defendant Sears, Roebuck & Company (“Sears”). (MTD, ECF No. 13.) Also before the Court is Plaintiff’s Response in Opposition to (Opp’n, ECF No. 14) and Defendant’s Reply in Support of (Reply, ECF No. 16) Defendant’s MTD. Having considered the parties’ arguments and the law, the Court GRANTS IN PART and DENIES IN PART Defendant’s MTD. / / / / / / / / / / / / Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 1 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.711 Page 2 of 15 2 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BACKGROUND This action arose after Plaintiff purchased a pillow at Defendant’s store in San Diego, California on July 19, 2015. (FAC ¶ 17, ECF No. 10.) At the store, Plaintiff saw “pricing information” indicating that the pillow’s “regular” price was $19.99, but was being offered at a “sale” price of $9.99. (Id. at ¶ 18.) Specifically, Plaintiff “observed merchandise for which ‘regular’ prices were listed alongside ‘discounted’ prices in larger, bold fonts.” (Id. at ¶ 17.) Plaintiff relied upon this purported discounted price in making his purchase, (id.), and claims he would not have purchased the pillow but-for the misrepresented price, (id. at ¶¶ 19, 22). Additionally, upon check-out on July 19, 2015, Sears provided Plaintiff with a receipt containing the allegedly misrepresented price, specifically stating “SALE” in large letters above the item he purchased. (Id. ¶ 20.) Plaintiff alleges that Defendant has employed a scheme to defraud consumers by advertising merchandise at fabricated “sale” prices. (See, e.g., id. ¶¶ 1, 2, 3, 4, 35.) On January 15, 2016, Plaintiff filed his amended complaint seeking a class action against Defendant for false and misleading advertisements in connection with merchandise sold in its retail stores. (FAC ¶ 1, ECF No. 10.) Plaintiff brings six causes of action,1 including: (1) violation of California’s Unfair Competition Law—unlawful acts (UCL, Cal. Bus. & Prof. Code § 17200, et seq.) on behalf of the California Class; (2) violation of UCL—unfair acts (Bus. & Prof. Code § 17200, et seq.) on behalf of the California Class; (3) violation of the California False Advertising Law (FAL, Cal. Bus. & Prof. Code § 17500, et seq.) on behalf of the California Class; (4) violation of the Consumers Legal Remedies Act (CLRA, California Civil Code § 1750) on behalf of the California Class; (5) Unjust Enrichment on behalf of the Classes, or in the alternative, on behalf of the California Class; and (6) violations of the Consumer Protection Laws on behalf of Classes in states with similar laws. (See generally FAC.) 1 Plaintiff’s last cause of action is listed as “EIGHTH CAUSE OF ACTION,” but Plaintiff’s fifth and sixth cause of action are missing from the list. (See FAC at ¶¶ 66–72.) Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 2 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.712 Page 3 of 15 3 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant now moves to dismiss or, in the alternative, strike Plaintiff’s FAC. (MTD, ECF No. 13.) Because the Court finds that Plaintiff’s FAC fails to allege standing for certain claims and fails to allege sufficient facts required to allege fraud under Rule 9(b) for all claims, the Court dismisses Plaintiff’s FAC on those bases. Thus the Court does not at this point address Defendant’s other arguments relating to Plaintiff’s claims for restitution and disgorgement (MTD 13, ECF No. 13-1), class allegations (id. at 14–23), or whether Plaintiff complied with the CLRA notice requirements (id. at 23). MOTION TO DISMISS PURSUANT TO RULE 12(b)(1) I. Legal Standard A. Rule 12(b)(1) Federal courts are courts of limited jurisdiction, and as such have an obligation to dismiss claims for which they lack subject-matter jurisdiction. Demarest v. United States, 718 F.2d 964, 965 (9th Cir. 1983). Because the issue of standing pertains to the subject- matter jurisdiction of a federal court, motions raising lack of standing are properly brought under Federal Rule of Civil Procedure 12(b)(1). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The plaintiff bears the burden of establishing he has standing to bring the claims asserted. Takhar v. Kessler, 76 F.3d 995, 1000 (9th Cir. 1996); see also In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008) (“The party asserting jurisdiction bears the burden of establishing subject matter jurisdiction on a motion to dismiss for lack of subject matter jurisdiction.”). Rule 12(b)(1) motions may challenge jurisdiction facially or factually. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. Here, Defendant’s challenge is facial because it disputes whether Plaintiff’s alleged harm is sufficiently particularized to confer Article III standing as well as statutory standing under the UCL and FAL. Defendant does not rely upon extrinsic evidence, but instead relies only Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 3 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.713 Page 4 of 15 4 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on the pleadings. Accordingly, the Court will assume the truth of Plaintiff’s factual allegations, and draw all reasonable inferences in favor of Plaintiff. Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005); Safe Air for Everyone, 373 F.3d at 1039. B. Article III Standing Under Article III of the United States Constitution, a federal court may only adjudicate an action if it constitutes a justiciable “case” or a “controversy” that has real consequences for the parties. Raines v. Byrd, 521 U.S. 811, 818 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A threshold requirement for justiciability in federal court is that the plaintiff have standing to assert the claims brought. Id. See also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (“Article III standing . . . enforces the Constitution’s case-or-controversy requirement”) (citations omitted). As the sole2 proposed class representative, Plaintiff has the burden of showing that Article III standing exists in this case. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 978 (9th Cir. 2011). The essence of the standing inquiry is to determine whether the party seeking to invoke the Court’s jurisdiction has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends.” Baker v. Carr, 369 U.S. 186, 204 (1962). Three elements form the core of the standing requirement: First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 2 In a class action, only one named plaintiff must meet the requirements of Article III standing. Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007). Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 4 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.714 Page 5 of 15 5 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lujan, 504 U.S. at 560–61 (quotations, citations, and footnote omitted). This irreducible constitutional minimum, often termed “Article III standing,” seeks to limit the reach of the judiciary into matters properly reserved for other branches of government. See DaimlerChrysler, 547 U.S. at 341; see also Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474 (1982). Although the Supreme Court has noted that “the concept of ‘Art. III standing’ has not been defined with complete consistency,” Valley Forge, 454 U.S. at 475, these three “bedrock” requirements of injury, causation, and redressability are uniformly essential to federal court jurisdiction. Raines v. Byrd, 521 U.S. at 818–20; see also Bennett v. Spear, 520 U.S. 154, 164–66 (1997). C. Statutory Standing Under the UCL and FAL Standing under the UCL and FAL is further limited to any person “who has suffered injury in fact and has lost money or property” as a result of unfair competition. Cal. Bus. & Prof. Code §§ 17204, 17535; see also Kwikset Corp. v. Sup. Ct., 51 Cal. 4th 310, 321 (2011). To plead standing under the UCL, a party must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” Kwikset, 51 Cal. 4th at 322 (emphasis in original). II. Analysis With these principles in mind, the Court assesses whether Plaintiff has standing to sue on behalf of himself and the putative class. A. Injury Defendant argues that Plaintiff fails to allege an injury that satisfies Article III and the statutory standing requirements of the UCL and FAL. (MTD 4–5, ECF No. 13-1.) In particular, Defendant argues that Plaintiff has not alleged any economic injury because while he relied on allegedly false representations about the price when he purchased the Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 5 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.715 Page 6 of 15 6 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pillow, he does not allege it was worth less than what he paid or that it was otherwise lacking in quality. (Id. at 5.) Central to Defendant’s argument is that, under the UCL and FAL, economic injury requires that the “misrepresentation alleged by plaintiff must go to the nature of the product itself and therefore affect the worth of the product.” (Id. at 4.) Plaintiff counters that his injury satisfies the requirements of Article III and of the UCL and FAL. (Opp’n 3–4, ECF No. 14.) Specifically, Plaintiff argues that, contrary to Defendant’s assertion, the California Supreme Court’s decision in Kwikset does not limit economic injury to the nature or worth of the product. (Id. at 5.) The Court agrees with Plaintiff that the Kwikset decision is not so limited. To the contrary, the Kwikset Court broadly declared that “plaintiffs who can truthfully allege they were deceived by a product’s label into spending money to purchase the product, and would not have purchased it otherwise, have ‘lost money or property’ . . . and have standing to sue.” Kwikset, 51 Cal. 4th at 317. Additionally, the court noted that “[t]here are innumerable ways in which economic injury from unfair competition can be shown,” such as where a plaintiff “surrender[s] in a transaction more . . . than he or she otherwise would have.” Id. at 323; see also Hinojos v. Kohl's Corp., 718 F.3d 1098, 1105 (9th Cir. 2013) (“Kwikset cannot be so easily limited. . . . Nothing in Kwikset . . . suggests that these examples were intended to be exhaustive instead of illustrative.”). Such is Plaintiff’s allegation in this case, since he claims he would not have purchased the pillow but-for his mistaken belief that he was getting a better bargain. Accordingly, the Court finds that Plaintiff has suffered an economic injury under Article III as well as under the UCL and FAL. See Hinojos, 718 F.3d at 1107 (“[W]hen a consumer purchases merchandise on the basis of false price information, and when the consumer alleges that he would not have made the purchase but for the misrepresentation, he has standing to sue under the UCL and FAL because he has suffered an economic injury.”). B. Causation In addition to an injury in fact, “there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 6 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.716 Page 7 of 15 7 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action of the defendant.” Lujan, 504 U.S. at 560–61. Additionally, “[f]or fraud-based claims under all three consumer statutes [UCL, FAL, and CLRA] the named Class members must allege actual reliance to have standing.” In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 903 F. Supp. 2d 942, 969 (S.D. Cal. 2012) (citing In re Tobacco II Cases, 46 Cal. 4th 298, 306 (2009)). Defendant argues that Plaintiff fails to adequately plead reliance to sustain the class claims because, although he visited a Sears store and saw pricing information for the pillow showing ‘regular’ prices alongside ‘discounted’ prices, he “does not allege he visited the Sears website, saw any advertisements online, or saw any print advertisements” that are central to Plaintiff’s class claims beyond his own injury. (MTD 7, ECF 13-1.) Thus, Defendant argues Plaintiff’s allegations are “insufficient to show actual reliance on anything other than the ‘discounted’ price tags.” (Id.) The Court partially agrees with Defendants. At the outset, the Court finds that Plaintiff has properly pled a causal connection between his economic injury and Defendant’s actions, since he “would not have made such purchases but for Defendant’s representations of fabricated ‘original’ prices and false discounts.” (FAC ¶ 22, ECF 10.) Additionally, Plaintiff specifically pleads that he “rel[ied] upon Defendant’s misrepresentations and false and deceptive advertising . . . [when he] purchased a Cannon firm density standard pillow.” (Id. ¶ 18.) Such allegations satisfy reliance as to Plaintiff’s in-store purchase. See Hinojos, 718 F.3d at 1104 n.5 (“Pleading that one would not have otherwise purchased the product but for the misleading advertising also satisfies the consumer’s obligation to plead a causal link between the advertising and the alleged economic injury.”). However, aside from the in-store advertisement regarding the pillow, Plaintiff has not alleged that he relied on any other statements or advertisements in purchasing the pillow or other products from Defendant’s stores. For instance, even though Plaintiff alleges that the pillow was advertised online at a similar price as of the filing of his FAC (FAC ¶ 19, ECF No. 10), Plaintiff does not allege that he viewed and relied on this advertisement prior to purchasing the pillow. Thus, to the extent Plaintiff’s FAL, Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 7 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.717 Page 8 of 15 8 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UCL, CLRA, or other claims arise from Defendant’s statements or advertisements other than those Plaintiff relied on when purchasing his pillow, as currently pled Plaintiff has not sufficiently alleged standing to raise such claims. C. Redressability Once a court finds that a plaintiff has suffered an injury that is fairly traceable to defendant’s conduct, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560–61. At the outset, the Court finds that Plaintiff’s claims can be redressed by a favorable decision from this Court. However, Defendant argues that Plaintiff lacks standing to seek injunctive relief “because he fails to allege he is likely to purchase a product from Sears in the future.” (MTD 10, ECF No. 13-1.) The Court agrees with Defendant. As currently pled, Plaintiff fails to allege that he is likely to be harmed by Defendant’s allegedly fraudulent conduct in the future. For example, Plaintiff fails to plead that he will purchase products from Defendant’s stores in the future, and Plaintiff’s new allegations in his responsive brief are irrelevant to the Court’s analysis. See Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“The ‘new’ allegations contained in [the opposition] . . . are irrelevant for Rule 12(b)(6) purposes.”). Thus, Plaintiff has not sufficiently alleged standing to raise a claim for injunctive relief. Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendant’s motion to dismiss for lack of standing. The Court finds that, as currently pled, Plaintiff has standing to sue for his alleged injury based solely on the in-store advertisement he relied on in making his pillow purchase. However, as pled, Plaintiff does not have standing to sue for injunctive relief. Additionally, at this stage the Court declines to rule on whether Plaintiff has standing to sue on behalf of others who have similarly relied on misrepresented pricing information because, as discussed below, the Court finds that Plaintiff has failed to plead with particularity the “pricing information” he relied on in purchasing his pillow. Cf. Branca v. Nordstrom, Inc., No. 14CV2062-MMA (JMA), 2015 WL 10436858, at *5 (S.D. Cal. Oct. 9, 2015) (holding that plaintiff had standing to sue on Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 8 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.718 Page 9 of 15 9 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 behalf of a class after finding that the “‘Compare At’ tags are substantially similar because the characteristics and format that Plaintiff complains of remain consistent across such tags”) (emphasis added). The Court will grant Plaintiff an opportunity to amend these deficiencies—if he can—in an amended complaint. MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) I. Legal Standard A. Rule 12(b)(6) Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted,” generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned, the-defendant-unlawfully-harmed- me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 555 (alteration in original). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “[F]acts that are Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 9 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.719 Page 10 of 15 10 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘merely consistent with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” contained in the complaint. Id. at 678–79 (citing Twombly, 550 U.S. at 555). This review requires “context-specific” analysis involving the Court’s “judicial experience and common sense.” Id. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). The Court will grant leave to amend unless it determines that no modified contention “consistent with the challenged pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). B. Rule 9(b) Additionally, claims that allege fraud must meet the heightened pleading standard of Rule 9(b), which requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Allegations of fraud must be “specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985); see also Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997) (noting that particularity requires plaintiff to allege the “who, what, when, where, and how” of the alleged fraudulent conduct). Additionally, where a plaintiff alleges “a unified course of fraudulent conduct and rel[ies] entirely on that course of conduct as the basis of a claim[,] . . . the claim is said to be ‘grounded in fraud’ or to ‘sound in fraud,’ and the pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b).” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103–04 (9th Cir. 2003) (citations omitted). / / / / / / Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 10 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.720 Page 11 of 15 11 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. California’s FAL, UCL, and CLRA California’s FAL provides: No price shall be advertised as a former price of any advertised thing, unless the alleged former price was the prevailing market price as above defined within three months next immediately preceding the publication of the advertisement or unless the date when the alleged former price did prevail is clearly, exactly and conspicuously stated in the advertisement. Cal. Bus. & Prof. Code § 17501. “This statute makes it unlawful for a business to disseminate any statement ‘which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading . . . .’” Arevalo v. Bank of Am. Corp., 850 F. Supp. 2d 1008, 1023–24 (N.D. Cal. 2011) (internal citation omitted). “The statute has been interpreted broadly to encompass not only advertising which is false, but also advertising which, although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public. . . . Consequently, even a perfectly true statement couched in such a manner that it is likely to mislead or deceive the consumer, such as by failure to disclose other relevant information, is actionable under this section.” Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1162 (9th Cir. 2012) (citations, quotations, and alterations omitted). California’s UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. The UCL provides a separate theory of liability under the “unlawful,” “unfair,” or “fraudulent” prong. Stanwood v. Mary Kay, Inc., 941 F. Supp. 2d 1212, 1222 (C.D. Cal. 2012) (citing Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 731 (9th Cir. 2007)). “The UCL expressly incorporates the FAL’s prohibition on unfair advertising as one form of unfair competition.” Hinojos, 718 F.3d at 1103. Thus, any violation of the FAL also violates the UCL. Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008) (citing Kasky v. Nike, Inc., 27 Cal. 4th 939, 950 (2002)). California’s CLRA prohibits “unfair methods of competition and unfair or deceptive Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 11 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.721 Page 12 of 15 12 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 acts or practices.” Cal. Civ. Code § 1770. Among other things, the CLRA prohibits “[a]dvertising goods or services with intent not to sell them as advertised” and “[m]aking false or misleading statements of fact concerning reasons for, existence of, or amounts of price reductions.” Cal. Civ. Code §§ 1770(a)(9), (13). D. The Reasonable Consumer Test “To state a claim under the FAL, UCL, or the CLRA, the plaintiff must allege the defendant’s purported misrepresentations are likely to deceive a reasonable consumer.” Branca v. Nordstrom, Inc., 2015 WL 1841231, at *6 (S.D. Cal. Mar. 20, 2015) (citing Williams, 552 F.3d at 938; see also Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015) (“It is true that violations of the UCL, FAL, and CLRA are evaluated from the vantage point of a ‘reasonable consumer.’”). “A reasonable consumer is ‘the ordinary consumer acting reasonably under the circumstances.’” Davis, 691 F.3d at 1161–62 (quoting Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663, 682 (2006)). “Likely to deceive implies more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner. Rather the phrase indicates that the ad is such that it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misle[]d.” In re Sony, 903 F. Supp. 2d at 967 (quoting Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003)). “In determining whether a statement is misleading under the statute, the primary evidence in a false advertising case is the advertising itself.” Bruton, 961 F. Supp. 2d at 1092 n.20. Finally, courts have recognized that “whether a business practice is deceptive will usually be a question of fact not appropriate for decision on [a motion to dismiss].” Davis, 691 F.3d at 1162 (brackets in original). II. Analysis As currently pled, Plaintiff’s allegations fail to meet Rule 9(b)’s particularity standard. Specifically, Plaintiff fails to sufficiently plead the allegedly fraudulent conduct associated with his purchase of the pillow. While it is true that Plaintiff alleges where and Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 12 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.722 Page 13 of 15 13 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 when he purchased the particular brand of pillow (FAC ¶¶ 17–18, ECF No. 10), he does not allege with particularity the form in which he saw the purportedly misleading “pricing information.” Plaintiff merely states the he “observed merchandise for which ‘regular’ prices were listed alongside ‘discounted’ prices in larger, bold fonts,” (Id. at ¶ 17), without describing whether that “pricing information” was on a tag attached to the product, a sign above the product, a sticker on the shelf, or in some other form. Without more, Defendant plainly cannot verify Plaintiff’s allegations of fraud as it applies to its sale of the pillow, much less any other product. See Nunez v. Best Buy Co., 315 F.R.D. 245, 249 (D. Minn. June 7, 2016) (dismissing a complaint for failure to satisfy Rule 9(b) where plaintiff did “not specify whether he relied upon, for example, a price tag in a store, a paper flyer, an e- mail, or a price listed on Best Buy’s website”). Nor does Plaintiff’s allegation that the misleading information also appears on the sales receipt cure this deficiency (FAC ¶ 20), since that information was apparent to Plaintiff after he made his purchase, and thus Plaintiff could not have relied on that information in making his purchase. Additionally, the CSS Study cited by Plaintiff does not appear to contain data on the particular pillow purchased by Plaintiff, much less a description of the alleged misleading “pricing information” Plaintiff saw before making his purchase. (FAC ¶¶ 11–16.) Thus, while potentially indicative of Defendant’s alleged misrepresentations on a general level, the CSS Study does not substantiate Plaintiff’s claims as to his pillow. The Court agrees with Plaintiff that at this early stage certain pricing information and advertising practices are known only to Defendant. However, the details of the “pricing information” that Plaintiff saw and relied on are peculiarly in his control. Without alleging this particular information in his FAC, Plaintiff’s claims fail under Rule 9(b).3 / / / 3 Defendant asserts a variety of additional arguments in support of its motion to dismiss. (See generally MTD, ECF No. 13-1.) Because the Court dismisses all counts under Rule 9(b), it does not reach these arguments, and at this point does not address Defendant’s alternative motion to strike Plaintiff’s class allegations. Defendant is free to re-raise these arguments in a new motion if and after Plaintiff amends his complaint. Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 13 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.723 Page 14 of 15 14 15-CV-2798 JLS (WVG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION In light of the foregoing, Defendant’s motion to dismiss, or, in the alternative, strike Plaintiff’s FAC is GRANTED IN PART and DENIED IN PART. Plaintiff has standing for certain claims as discussed above, but Plaintiff’s claims are otherwise DISMISSED WITH LEAVE TO AMEND. Plaintiff SHALL FILE an amended complaint, if any, on or before November 1, 2016. IT IS SO ORDERED. Dated: October 17, 2016 Case 3:15-cv-02798-JLS-WVG Document 22 Filed 10/17/16 Page 14 of 14Case 3:16-cv-00369-BAS-JMA Document 25-5 Filed 02/27/ 7 PageID.724 Page 15 of 15 Exhibit C Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.725 Page 1 of 19 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VALERIE CAPRONI, District Judge: This case is one of many1 that have been brought in recent years under a variety of state laws to challenge the alleged practice of some retailers that operate “outlet stores” to price their products in a manner that misleads the buyer to believe that he or she is getting a “bargain.” The Plaintiff in this case has attempted to shoehorn his “But-I-Thought-I-Was-Getting-A-Bargain” claims into Florida’s consumer protection statute and common law torts. Although the Court can appreciate Plaintiff’s disappointment when he learned that he may not have gotten the bargain he thought he had, it agrees with the Defendant that, as currently drafted, this Complaint does not state a claim on which relief can be granted. For the reasons stated below, Defendant’s motion to dismiss is GRANTED. 1 See, e.g., Morrow v. Ann Inc., No. 16-CV-3340 (JPO), 2017 WL 363001 (S.D.N.Y. Jan. 24, 2017); Marino v. Coach, Inc., No. 16-CV-1122 (VEC) (S.D.N.Y.); Rael v. Dooney & Burke, Inc. et al., No. 16-CV-371 (S.D. Cal.); Dennis v. Ralph Lauren Corp. et al., No. 16-CV-1056 (S.D. Cal.); Rubenstein v. The Neiman Marcus Grp., No. 14- CV-7155 (C.D. Cal.). THOMAS BELCASTRO, individually and on behalf of all others similarly situated, Plaintiff, -against- 16-CV-1080 (VEC) OPINION AND ORDER BURBERRY LIMITED, Defendant. USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.726 Page 2 of 19 2 BACKGROUND2 In July 2014 and July 2015, Plaintiff Thomas Belcastro visited a Burberry Outlet store in Orlando, Florida. Compl. (Dkt. 13) ¶ 8. Some of the merchandise had price tags showing two prices: a so-called “deceptive reference price” and a “now” price that was “significantly” lower than the deceptive reference price. Id. ¶ 3. The reference price was identified as the “Manufacturer’s Suggested Retail Price” or the “Was” price. Id. Plaintiff, believing he was receiving a “bargain” or a “deal,” purchased several shirts at prices ranging from $119.99 to $249.99. Id. ¶ 33. Plaintiff alleges that the price tags on all of the products that he purchased had reference prices that were greater than the “Now” prices that he paid for the clothing. Id. ¶ 34. According to the Complaint, the deceptive reference prices “are fictional creations designed by Burberry to portray false price reductions,” id. ¶ 41; “Burberry never intended, nor did it ever, sell the items at the represented deceptive [r]eference [p]rices.” Id. ¶ 36. Plaintiff claims that “Burberry manufactures the Burberry Outlet Products for exclusive sale at its Burberry Outlets and always sells these goods for the advertised ‘Now’ price.” Id. ¶ 5. “As a result, such items were never sold, never suggested to be sold, or even intended to be sold at the [d]eceptive [r]eference [p]rice listed on its price tags.” Id. Plaintiff claims he was “deceived by the false price comparison into making a full retail purchase with no discount.” Id. ¶ 36. Plaintiff claims that he “would not have purchased the Burberry Outlet Products, or would not have paid the price he did, if he had known he was not truly receiving a bargain, or receiving a discount, as specified.” Id. ¶ 37. According to 2 In addressing the sufficiency of the complaint on a motion to dismiss, the Court “accept[s] as true all factual allegations and draw[s] from them all reasonable inferences.” See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.727 Page 3 of 19 3 Plaintiff, he believed “he was getting a terrific bargain on his purchases . . . [when] [i]n reality, he was not getting a bargain at all.” Id. ¶ 30. He further alleges that “consumers—including Plaintiff—reasonably perceived they were receiving products which were regularly sold at substantially higher prices (and were, therefore, worth more) than what they paid.” Id. ¶ 62. DISCUSSION 1. The Court Has Subject Matter Jurisdiction “Determining the existence of subject matter jurisdiction is a threshold inquiry and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008)). Article III requires the plaintiff to establish an injury in fact, a causal connection between the injury and the conduct complained of, and that the injury will likely be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). “But ‘where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits.’” Id. (quoting APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003)). “A plaintiff has the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists.” Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003). Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.728 Page 4 of 19 4 Defendant challenges Plaintiff’s claim that he suffered an Article III injury, claiming that Plaintiff’s allegations about his purchase are “impossible.” Def.’s Mem. (Dkt. 3) at 8. Defendant claims that “[n]ot a single one of his allegations squares with the price at which Burberry actually sold those items, and some blatantly contradict the fact that Burberry did not offer certain items for sale at the stores and times Plaintiff allegedly bought them.” Id. Defendant supports this claim with a sworn declaration from Burberry’s vice president of merchandising, Paul Chomyonk. See Declaration of Paul Chomyonk (“Chomyonk Decl.”) (Dkt. 31). When a party brings a “factual” challenge to jurisdiction based on extrinsic evidence, “no presumptive truthfulness attaches to the complaint’s jurisdictional allegations; rather, the burden is on the plaintiff to satisfy the Court, as fact-finder, of the jurisdictional facts.” Guadagno v. Wallack Ader Levithan Assoc., 932 F. Supp. 94, 95 (S.D.N.Y. 1996) (internal citations omitted). The Court does not find this challenge to be truly jurisdictional. Accepting as true Defendant’s evidence about pricing and availability, at least one of the items, a navy shirt, item number 3872648, was available for purchase when Plaintiff claimed to have purchased it. See Compl. ¶ 33; Chomyonk Decl. ¶ 8. Although Defendant states that the navy shirt was sold for eleven dollars less than Plaintiff alleges he paid, Compl. ¶ 33; Chomyonk Decl. ¶ 8, the Court does not find that small factual discrepancy regarding the price sufficient to defeat standing. Plaintiff’s allegation that he was injured by the purchase of the navy shirt is sufficient to meet the “low threshold” for injury required to establish Article III standing. See Ross v. Bank of America, N.A. (USA), 524 F.3d 217, 222 (2d Cir. 2008) (“Injury in fact is a low threshold, which we have held ‘need not be capable of sustaining a valid cause of action.’” (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006))). Whether Plaintiff in fact purchased the Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.729 Page 5 of 19 5 other items identified in the complaint and whether those items were marketed with a deceptive reference price is otherwise a question of fact to be resolved at a later stage in these proceedings. Accordingly, Defendant’s motion to dismiss for lack of subject matter jurisdiction is DENIED. 2. Plaintiff Fails to State a Claim To survive a motion to dismiss under Rule 12(b)(6), “a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In reviewing a Rule 12(b)(6) motion to dismiss, courts “accept[] all factual allegations as true and draw[] all reasonable inferences in favor of the plaintiff.” N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 119 (2d Cir. 2013) (quoting Litwin v. Blackstone Grp., LP, 634 F.3d 707, 715 (2d Cir. 2011)). “Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “[T]o survive a motion under Rule 12(b)(6), a complaint does not need to contain detailed or elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above the speculative level.” Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014). Defendant moves to dismiss on the grounds that Plaintiff has not identified any “actual damages” that could be the basis for a claim under New York or Florida law. Def.’s Mem. at 14- 18. Although each of Plaintiff’s claims has distinct elements, Defendant argues that both Florida and New York law require Plaintiff to allege an injury based on either the price or “intrinsic Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.730 Page 6 of 19 6 value” of the products. Def.’s Mem. at 16.3 As noted at the outset, this case is one of several to challenge retailers’ pricing policies under consumer protection laws and common law torts, and the courts appear split on whether a disappointed bargain-hunter suffers any “actual damages.” Applying California law, the Ninth Circuit has held that a disappointed bargain hunter may suffer actual injury based on his mistaken subjective valuation of the product. See Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1104 (9th Cir. 2013). Hinojos is in tension with decisions from other federal courts, however, including the Seventh Circuit, which have held that disappointed bargain-hunters do not allege any “actual injury” simply because they did not get as good a deal as they had hoped. See Kim v. Carter’s Inc., 598 F.3d 362, 365-66 (7th Cir. 2010) (applying Illinois law); Shaulis v. Nordstrom Inc., 120 F. Supp. 3d 40, 49-53 (D. Mass. 2015) (applying Massachusetts law). Defendant’s argument is that New York law (and by extension, Florida law) are similar and do not recognize any injury based solely on allegations that the plaintiff subjectively believed that he was getting a better bargain than turned out to be true. A. Common Law Fraud Under New York law, to allege fraud, the complaint must allege “a representation of material fact, falsity, scienter, reliance and injury.” Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57 (1999). “Actual damages” may be shown by allegations that the plaintiff paid a “price premium” because of the defendant’s misrepresentation or by allegations that the plaintiff did not 3 Defendant argues that Florida law should apply because “[u]nder New York choice of law principles, claims sounding in fraud . . . are governed by the law of ‘the state in which the injury is deemed to have occurred, which is usually where the plaintiff is located.’” In re Frito-Lay N. Am., Inc. All Nat. Litig., 12-MD-2413, 2013 WL 4647512, at *19 (E.D.N.Y. Aug. 29, 2013) (quoting Nat’l W. Life. Ins. Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 89 F. App’x 287, 288 (2d Cir. 2004) (summary order)). Plaintiff argues that New York law is appropriate under New York choice-of-law rules because Defendant is headquartered in New York, and “a substantial part of the event giving rise to Plaintiff’s claim arose [in New York] including the creation of the scheme alleged in this Complaint.” Pl.’s Opp. (Dkt. 36) at 19 (quoting Compl. ¶¶ 9, 12). The Court declines to conduct a choice of law analysis at this stage and assumes, as Plaintiff proposes, that for the purposes of this motion, New York law applies. The Court will therefore analyze Plaintiff’s fraud claim under New York law and the remaining claims under both New York and Florida law. Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.731 Page 7 of 19 7 receive the product for which he bargained. See Braynina v. TJX Cos., Inc., No. 15-CV-5897 (KPF), 2016 WL 5374134, at *10 (S.D.N.Y. Sept. 26, 2016). But New York law does not recognize an injury based on deception itself—the fact that Plaintiff was deceived is not, standing alone, an “actual injury.” See Small, 94 N.Y.2d at 56; see also Baron v. Pfizer, Inc., 840 N.Y.S.2d 445, 447-48 (2d Dep’t 2007) (“actual, although not necessarily pecuniary, harm” is required). The Small case illustrates the difference between actual damages and an ephemeral injury based solely on deception. In Small, a putative class of plaintiffs alleged that cigarette manufacturers had engaged in deceptive trade practices by concealing from the market evidence that smoking cigarettes was addictive. Small, 94 N.Y.2d at 51. The plaintiffs did not seek to recover for the “addiction component” of their claim; rather, they argued that “defendants’ deception prevented them from making free and informed choices as consumers.” Id. at 56. The Court of Appeals rejected this “choice-as-injury” theory: “[w]ithout addiction as part of the injury claim, there is no connection between the misrepresentation and any harm from, or failure of, the product.” Id. Although Small is factually distinguishable, courts applying New York law have consistently recognized that Small requires there to be a connection between the defendant’s deception and an objective injury, either in terms of price or product. In “price premium” cases, the plaintiff alleges that the defendant’s deception caused them to overpay for a product. See, e.g., Ebin v. Kangadis Food Inc., No. 13-CV-2311 (JSR), 2013 WL 6504547, at *4-5 (S.D.N.Y. Dec. 11, 2013) (mislabeled olive oil retailed for more than accurately-labeled olive oil products); In re Clorox Consumer Litig., No. 12-00280 SC, 2013 WL 3967334, at *7 (N.D. Cal. July 31, 2013) (Fresh Step cat litter, which contains carbon as an odor reducer, is priced higher than Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.732 Page 8 of 19 8 regular clay litter and litter that uses baking soda as an odor reducer). Closely related are fraud cases in which the plaintiff asserts that he was injured by a misrepresentation about the intrinsic qualities of the product. See, e.g., Ackerman v. Coca-Cola Co., No. 09-CV-0395 (JG), 2010 WL 2925955, at *23 (E.D.N.Y. July 21, 2010) (defendants misrepresented dietary value of Vitamin Water); Koenig v. Boulder Brands, Inc., 995 F. Supp. 2d 274, 288-89 (S.D.N.Y. 2014) (defendants misrepresented contents of Smart Balance spread). Plaintiff’s alleged injury, in his words that he “did not get what he bargained for[:] Burberry merchandize at a discount,” fits into neither of these categories. Pl.’s Opp. at 11. Plaintiff has not cited any case in which a court, applying New York law, has recognized a plaintiff’s subjective disappointment as a form of “actual damages.” See Koenig, 995 F. Supp. 2d at 288-89 (“‘Consumers who buy a product that they would not have purchased, absent a manufacturer’s deceptive commercial practices, have not suffered an injury cognizable under [New York law],’ but allegations that the plaintiff paid a price premium for a product based upon deceptive practices are sufficient to state an injury.” (quoting Rodriguez v. It’s Just Lunch, Int’l, No. 07-CV- 9227 (SHS), 2010 WL 685009, at *9 (S.D.N.Y. Feb. 23, 2010))). Small is in accord with the decisions of other federal and state courts that have rejected misrepresentation claims based solely on a theory that the defendant’s misrepresentation deprived the plaintiff of an opportunity to make a better-informed choice whether to buy the product. For instance, in Kim v. Carter’s Inc., plaintiffs brought a contract claim arguing that an “inflated, fictitious ‘suggested price’ led them to believe that they were paying 30% less than what other consumers usually paid, when in fact they were simply paying the full, regular price,” and alleged that the suggested prices “induced them to buy [the] clothing.” 598 F.3d at 364, 365. The Seventh Circuit found that the plaintiffs suffered no actual damages because they “got the Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.733 Page 9 of 19 9 benefit of their bargain and suffered no actual pecuniary harm.” Id. at 366. “Plaintiffs agreed to pay a certain price for Carter’s clothing, which they do not allege was defective or worth less than they actually paid.” Id. at 365; accord Camasta v. Jos. A. Bank Clothiers, Inc., No. 12 C 7782, 2013 WL 474509, at *4 (N.D. Ill. Feb. 7, 2013). Similarly, in Shaulis v. Nordstrom Inc., a Massachusetts district court considered whether the purchase of a sweater allegedly induced by a price misrepresentation could constitute an injury under Massachusetts’s consumer protection law. 120 F. Supp. 3d 40, 51-52 (D. Mass. 2015). Noting that the plaintiffs did not claim to suffer emotional harm, the Court classified the harm, if there was any, as economic. The problem, according to the Court, was: The injury that plaintiff claims to have suffered is not an “injury” in any traditional sense of the word. She paid $49.97 for a sweater on the alleged belief “that she saved at least 77% on her purchase.”. . . But it appears that she paid $49.97 for a sweater that is, in fact, worth $49.97. She still has the sweater in her possession. She does not allege that it is worth less than the selling price, that it was manufactured with shoddy materials or inferior workmanship, that it is of an inferior design, or that it is otherwise defective. . . . [T]he fact that plaintiff may have been manipulated into purchasing the sweater because she believed she was getting a bargain does not necessarily mean she suffered economic harm: she arguably got exactly what she paid for, no more and no less. Id. at 51-52; accord Mulder v. Kohl’s Dep’t Stores, Inc., No. 15 Civ. 11377, 2016 WL 393215, at *6 (D. Mass. Feb. 1, 2016) (Although “the transaction was arguably to her detriment . . . [the plaintiff] has suffered no loss, and there is no sum of money that could be awarded to her that could ‘compensate’ her without providing a windfall.”); see also Rule v. Fort Dodge Animal Health, Inc., 607 F.3d 250, 253-54 (1st Cir. 2010) (no “economic harm” where plaintiff alleged only “violation of some abstract ‘right’ like the right not to be subject to a deceptive act”). Plaintiff cites the Ninth Circuit’s decision in Hinojos to argue that Small and its progeny are inapplicable to this case. Hinojos concerns standing under a California statutory cause of Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.734 Page 10 of 19 10 action, so it is of limited relevance here. Moreover, the underlying injury identified by the Ninth Circuit is similar to the price premium injury recognized by New York law, but not adequately alleged by Plaintiff. Hinojos concerns the California Fair Advertising Law or “FAL.” The FAL prohibits retailers from advertising the “former price” of a good unless the “former price was the prevailing market price . . . within three months.” 718 F.3d 1098, 1103 (9th Cir. 2013) (quoting Cal. Bus. & Prof. Code § 17501). But California has also restricted the private cause of action under the FAL to consumers who suffer “injury in fact and ha[ve] lost money or property.” Id. (quoting Cal. Bus. & Prof. Code § 17204). Reconciling these potentially inconsistent statutes, the Hinojos court explained that a plaintiff could allege the “economic injury” required by Section 17204 by alleging that “[they] would not have purchased the goods in question absent [the defendant’s] misrepresentation.” Id. at 1105. The Court held that such a plaintiff suffers an injury to the extent that “the consumer paid more than he or she actually valued the product. That increment, the extra money paid, is economic injury.” Id. at 1104 (quoting Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310, 340 (2011)). The injury identified by the Hinojos court is a “price premium” injury by another name.4 The difference between “actual damages” under Small and “economic injury” under Hinojos is in the cognizable measure of damages. Under California law, a plaintiff sufficiently alleges injury based on allegations that the defendant’s false advertising caused them subjectively to assign a higher value to the good than they would have otherwise. Simply alleging that plaintiff would not have made the same purchasing decision but for the misrepresentation is not adequate 4 A concrete example may help illustrate the point: assume the plaintiff in Hinojos purchased a shirt for $120 believing that it had been marked down from $250. The mark-down, or bargain, has value to the Hinojos purchaser, who otherwise would not be willing to pay $120 for a $120 shirt. The shirt, standing alone, may have had only a value of (say) $100 to the plaintiff. The difference between the subjective value assigned to the shirt by the plaintiff ($100) and what he was induced to pay ($120) was his injury. That is another way of saying that the defendant’s misrepresentation caused the plaintiff to overpay by $20. Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.735 Page 11 of 19 11 under New York law—Small requires some connection between the deception and the price actually paid by the plaintiff or the intrinsic value of the good. Accord Kim, 598 F.3d at 365 (“plaintiffs [have not] alleged that, but for Carter’s deception, they could have shopped around and obtained a better price”); Shaulis, 120 F. Supp. 3d at 52 (rejecting claim because “alleged injury was based entirely on the plaintiff's subjective belief as to the nature of the value she received”). The Complaint alleges the measure of injury recognized in Hinojos, but it does not allege, other than conclusorily, the more concrete price premium injury required under Small. The injury alleged in the Complaint is based solely on the “choice-as-injury” theory rejected in Small. It does not plausibly allege a “price premium” injury nor does it allege that Plaintiff was sold a shirt different from what he believed he was purchasing. The Complaint’s only reference to a price premium theory is the conclusory allegation that Plaintiff “would not have purchased the Burberry Outlet Products, or would not have paid the price he did, if he had known he was not truly receiving a bargain, or receiving a discount, as specified.” Compl. ¶ 37. But the Complaint does not allege any facts that suggest that Burberry charges a higher price for products tagged with a deceptive reference price than it charges for clothing not so tagged. For instance, there are no allegations that Burberry sells similar shirts with accurate price tags for lower prices. At best, the Complaint alleges that as a result of Burberry’s deceptive pricing, Plaintiff paid more than he was subjectively willing to otherwise pay. That, however, is not the same as factual allegations that Burberry uses deceptive reference prices to charge consumers a higher price for the same merchandise.5 5 In his unjust enrichment claim, Plaintiff states that “Plaintiff and members of the Nationwide Class were not receiving a product of the quality, nature, fitness, or value that had been represented by Burberry and reasonable consumers would have expected.” Compl. ¶ 95. Taking the facts in the light most favorable to the Plaintiff, as the Court must, Plaintiff has made no allegations that Burberry made any representations at all about the quality of the garments it was selling at the outlet store. It is not clear what Plaintiff means when he says he and members of the Class did not receive a product of the “nature” or “fitness” represented by Burberry, but, in any event, he also has not alleged that Burberry made any representations about either the “nature” or “fitness” of its products. That leaves Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.736 Page 12 of 19 12 In the same vein, the Complaint does not allege that Plaintiff was misled into believing that he was purchasing a product that is intrinsically different than what he expected. The alleged misrepresentations relate only to pricing information. The Complaint alleges, generally, that retailers use deceptive reference prices as a tactic to create a false impression that made-for- outlet goods are really the most recent fashions, Compl. ¶¶ 2-5, 15-17, but it does not allege that Plaintiff believed that he was buying “retail” Burberry products—only that he believed he purchased the products on “terms more preferential or more optimal to the consumer than those offered outside the context of the outlet store.” Id. at ¶ 32. Assuming Plaintiff did believe he had purchased a “retail” Burberry shirt, the Complaint does not allege that outlet-branded products are different in any objective way from retail-branded Burberry products. And, finally, there are no allegations in the Complaint that there was anything wrong with the shirts or that Burberry misrepresented anything about the shirts, such as saying they were 100% cotton when they were in fact a polyester blend, or that they were manufactured in England when they were manufactured elsewhere. To recapitulate: New York law does not permit a plaintiff to allege “actual damages” based solely on his claim that he would not have chosen to purchase the good but for the defendant’s misrepresentation or that he believed he was getting a better bargain than turned out to be the case. “Actual damages” requires a connection between the misrepresentation and the price that is charged by the defendant or the quality of the good. Defendant’s motion to dismiss Plaintiff’s common law fraud claim is GRANTED. the allegations regarding the “value” of the garments, but the conclusory allegation that Plaintiff did not receive a product of the value that had been represented by Burberry is not sufficient to plead that the product was actually less valuable than what Plaintiff paid for it. Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.737 Page 13 of 19 13 B. Florida Deceptive and Unfair Trade Practices Act To recover under the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.21 et seq. (“FDUTPA”), “a party must allege (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” Guerrero v. Target Corp., 889 F. Supp. 2d 1348, 1355 (S.D. Fla. 2012).6 Under Florida law: “[T]he measure of actual damages is the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.” Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. Dist. Ct. App. 2006); see also Prohias v. Pfizer, Inc., 485 F. Supp. 2d 1329, 1336 (S.D. Fla. 2007) (rejecting claim based on misleading advertisements where plaintiffs could not allege any concrete damage); Marty v. Anheuser-Busch Cos., LLC, 43 F. Supp. 3d 1333, 1346-47 (S.D. Fla. 2014) (recognizing price premium theory under Florida law). Defendant contends that “actual damages” for purposes of the FDUTPA are the same as actual damages under New York law. See Def.’s Mem. at 14 (both Florida and New York law require allegations of “actual and cognizable” damages). Plaintiff does not challenge the point, effectively conceding that the same standard applies under New York and Florida law. Because the Court has already concluded that the Complaint does not allege actual damages under New York law, the Court also finds that the Complaint does not state a claim under FDUTPA. C. Negligent Misrepresentation Plaintiff brings a claim for negligent misrepresentation under both Florida and New York common law. To state a claim for negligent misrepresentation under Florida law, Plaintiff must 6 Federal courts in Florida are divided as to whether Rule 9(b)’s heightened pleading standard applies to FDUPTA claims. See Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1322 (M.D. Fla. 2002) (applying Rule 9(b) heightened pleading standard); Galstaldi v. Sunvest Cmties. USA, LLC, 637 F. Supp. 2d 1045, 1058 (S.D. Fla. 2009) Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.738 Page 14 of 19 14 allege, “(1) the defendant made a misrepresentation of material fact that he believed to be true but which was in fact false; (2) the defendant was negligent in making the statement because he should have known the representation was false; (3) the defendant intended to induce the plaintiff to rely . . . on the misrepresentation; and (4) injury resulted to the plaintiff acting in justifiable reliance upon the misrepresentation.” McGee v. JP Morgan Chase Bank, NA, 520 F. App’x 829, 831 (11th Cir. 2013) (quoting Simon v. Celebration Co., 883 So. 2d 826, 832 (Fla. Dist. Ct. App. 2004)). “Rule 9(b)’s heightened pleading standard applies to negligent misrepresentation claims” because actions for negligent misrepresentation in Florida sound in fraud. Lamm v. State Street Bank and Trust, 749 F.3d 938, 951 (11th Cir. 2014). Additionally, plaintiff must allege actual damages. Prohias, 485 F. Supp. 2d at 1334-35. Plaintiff’s Florida negligent misrepresentation claim is based on the same allegations of deceptive reference prices. Here too, Plaintiff has not stated a claim because Plaintiff has not alleged damages. Plaintiff’s New York common law negligent misrepresentation claim suffers from the same defect. Additionally, the claim fails because Plaintiff has not pled the requisite special relationship. To state a claim for negligent misrepresentation under New York law, Plaintiff must plead that “the defendant had a duty, as a result of a special relationship, to give correct information.” Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir. 2000).7 (holding that the requirements of Rule 9(b) do not apply to FDUPTA). The Court need not decide this issue because Plaintiff has failed to allege actual damages but would be inclined to agree with Stires that Rule 9(b) does apply. 7 In full, the elements of negligent misrepresentation under New York law are: “(1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment.” Naughright v. Weiss, 857 F. Supp. 2d 462, 469-70 (S.D.N.Y. 2012). Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.739 Page 15 of 19 15 “To allege a special relationship, [a plaintiff] must establish something beyond an ordinary arm’s length transaction.” Naughright, 857 F. Supp. 2d at 470. Plaintiff has not pleaded facts to suggest such a relationship.8 Accordingly, Defendant’s motion to dismiss Plaintiff’s negligent misrepresentation claim under New York law is GRANTED. D. Unjust Enrichment Finally, Plaintiff brings a claim for unjust enrichment pursuant to Florida and New York common law. To state a claim for unjust enrichment under Florida law, Plaintiff is required to allege that he (1) “has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accept[ed] and retain[ed] the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.” Hillman Constr. Corp. v. Wainer, 636 So. 2d 576, 577 (Fla. Dist. Ct. App. 1994). Unjust enrichment under New York law is substantially the same. See Baron v. Pfizer, Inc., 840 N.Y.S.2d 445, 448 (3d Dep’t 2007). Under New York law, “[a]n unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim.” Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790 (2012). Plaintiff’s unjust enrichment claim involves the same allegations as Plaintiff’s FDUPTA, fraud, and negligent misrepresentation claims. Although a plaintiff is allowed to plead unjust enrichment in the alternative, here the claim must be dismissed because it suffers from the same deficiencies fatal to the remainder of Plaintiff’s claims—Plaintiff’s failure to plead cognizable injury and damages. See Guerrero, 889 F. Supp. 2d at 1357 (“Although a plaintiff ordinarily may plead in the alternative, if Plaintiff cannot prevail on [his] FDUTPA claim, [he] cannot 8 Plaintiff indicates, in a footnote, that he “does not dispute Defendant’s motion as to negligent misrepresentation.” Pl.’s Opp. 22 n.14. The Court assumes that Plaintiff is referring to negligent misrepresentation under New York law. Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.740 Page 16 of 19 16 prevail on [his] unjust enrichment claim.”); Corsello, 18 N.Y.3d at 791 (“[I]f plaintiffs’ other claims are defective, an unjust enrichment claim cannot remedy the defects.”). Thus, Plaintiff’s claim for unjust enrichment cannot survive. Accordingly, Defendant’s motion to dismiss the unjust enrichment claim is GRANTED. Because all of Plaintiff’s claims are dismissed, the Court need not address Defendant’s motion to dismiss or strike the nationwide class allegations pursuant to New York common law. E. Leave to Amend Plaintiff has requested leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Leave may be denied ‘for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.’” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)). Except as to Plaintiff’s New York negligent misrepresentation claim, the Court does not find that amendment would necessarily be futile in this case. Plaintiff will have the opportunity to amend and allege injury based on a price premium theory or that the product Plaintiff purchased was different than what he expected. Plaintiff is forewarned, however, that nonspecific allegations that Burberry sells the same shirt for less or that Plaintiff was led by Burberry’s actions to believe erroneously that he was purchasing a product normally sold in regular Burberry retail stores without any factual investigation and support are inadequate to state a claim. Any amendment of these claims must set forth factual allegations with the particularity required by Rule 9(b). Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.741 Page 17 of 19 17 CONCLUSION For the reasons stated above, Defendant’s motion to dismiss is GRANTED. Plaintiff must file any amended complaint by March 15, 2017. The Clerk of Court is respectfully requested to close the open motions at docket entries 29 and 33 and terminate the case. SO ORDERED. _________________________________ Date: February 23, 2017 VALERIE CAPRONI New York, New York United States District Judge Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.742 Page 18 of 19 General Information Court United States District Court for the Southern District of New York; United States District Court for the Southern District of New York Federal Nature of Suit Personal Property - Other Fraud[370] Docket Number 1:16-cv-01080 Status Closed Belcastro v. Burberry Limited, Docket No. 1:16-cv-01080 (S.D.N.Y. Feb 11, 2016), Court Docket © 2017 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 18 Case 3:16-cv-00369-BAS-JMA Document 25-6 Filed 02/27/17 PageID.743 Page 19 of 19 Exhibit D Case 3:16-cv-00369-BAS-JMA Document 25-7 Filed 02/27/17 PageID.744 Page 1 of 12 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JAMES WALDRON and MATTHEW VILLANI, individually and on behalf of all others similarly situated, Plaintiffs, v. JOS. A. BANK CLOTHIERS, INC., Defendant. : : : : : : : : : : : : : Hon. Dennis M. Cavanaugh OPINION Civil Action No. 12-CV-02060 (DMC) (JAD) DENNIS M. CAVANAUGH, U.S.D.J. This matter comes before the Court upon motion by Defendant Jos. A. Bank Clothiers, Inc. (“Defendant” or “Jos. A. Bank”) to dismiss the Amended Class Action Complaint (“Amended Complaint”) of Plaintiffs James Waldron and Matthew Villani, individually and on behalf of all others similarly situated (collectively “Plaintiffs”), pursuant to FED. R. CIV. P. 12(b)(6). (Am. Compl., Sept. 6, 2012, ECF No. 16). Pursuant to FED. R. CIV. P 78, no oral argument was heard. After considering the submissions of all parties, it is the decision of this Court for the reasons expressed herein that Defendant’s Motion to Dismiss is granted without prejudice. Defendant’s subsequent Motion to Strike Class Allegations of the Amended Class Action Complaint is thus moot. (Mot. to Strike, Sept. 6, 2012, ECF No. 17). I. BACKGROUND 1 The facts set-forth in this Opinion are taken from the Parties’ statements in their respective moving papers. 1 Case 2:12-cv-02060-DMC-JAD Document 22 Filed 01/28/13 Page 1 of 11 PageID: 572Case 3:16-cv-0 369-BAS-JM Document 25-7 Filed 02/27/17 ageID.745 Page 2 of 12 On April 5, 2012, Plaintiffs filed the original two-count complaint. (Compl., Apr. 5, 2012, ECF No. 1). Defendant responded by filing a Motion to Dismiss and a Motion to Strike. Plaintiffs then sought leave to amend their claims and filed an Amended Complaint. (Am. Compl., Aug. 6, 2012, ECF No. 15). Plaintiffs assert an alleged violation of the New Jersey Consumer Fraud Act (“NJCFA”) and claims of unjust enrichment and common law restitution. Jos. A. Bank was established in 1905 and is one of the nation’s leading retailers of men’s classically-styled tailored and casual clothing, sportswear, footwear, and accessories. (Am. Compl. ¶ 22). Jos. A. Bank has over 500 stores in forty-two (42) states and the District of Columbia. (Am. Compl. ¶¶ 22). Jos. A. Bank advertises, markets, and promotes merchandise on its website through direct mail marketings, catalogs, and television and radio commercials. (Am. Compl. ¶ 23). The company also maintains an e-commerce website which allows consumers throughout the United States to view advertising and promotional material and purchase Jos. A. Bank merchandise. (Am. Compl. ¶ 23). Plaintiffs allege that “[t]he majority of Jos. A. Bank’s merchandise has been continually on sale for the past several years, even though each advertised sale is described as being of limited duration, thus creating the false and misleading impression that the price will increase back to the ‘regular price’ if a consumer does not make a purchase by the end of the sale.” (Am. Compl. ¶ 26). Plaintiffs further alleges that Jos. A. Bank deceives consumers through its Corporate Card Program. Consumers may provide their name and address to Jos. A. Bank, and in exchange, receive a Corporate Card that offers twenty (20) percent off its regular priced merchandise. (Am. Compl. ¶ 26). Plaintiffs allege that the Consumer Card program offers sales “not available to the general public,” but that these sales were not, in actuality, exclusive. (Am. Compl. ¶ 29). 2 Case 2:12-cv-02060-DMC-JAD Document 22 Filed 01/28/13 Page 2 of 11 PageID: 573Case 3:16-cv-0 369-BAS-JM Document 25-7 Filed 02/27/17 ageID.746 Page 3 of 12 Defendant now moves to dismiss the Amended Complaint pursuant to FED. R. CIV. P. 12(b)(6) and 12(b)(1). (Am. Compl. ¶ 29). II. LEGAL STANDARD A. Standard of Review for Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to FED. R. CIV. P. 12(b)(6) In deciding a motion under Rule 12(b)(6), a district court is “required to accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in the light most favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). “[A] complaint attacked by a ... motion to dismiss does not need detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations omitted). “[A court is] not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, assuming that the factual allegations in the complaint are true, those “[f]actual allegations must be enough to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555. “A complaint will survive a motion to dismiss if it contains sufficient factual matter to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Id. “Determining whether the allegations in a complaint are ‘plausible’ is a ‘context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Young v. Speziale, 2009 WL 3806296, *3 (D. N.J. Nov. 10, 2009) (quoting Iqbal, 129 S.Ct. at 1950). “[W]here the well-pleaded facts do not permit the court to infer more 3 Case 2:12-cv-02060-DMC-JAD Document 22 Filed 01/28/13 Page 3 of 11 PageID: 574Case 3:16-cv-0 369-BAS-JM Document 25-7 Filed 02/27/17 ageID.747 Page 4 of 12 than the mere possibility of misconduct, the complaint has alleged–but it has not ‘shown’–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950. B. FED. R. CIV. P. 12(b)1 Upon a Rule 12(b)(1) motion addressing the existence of subject matter jurisdiction over a plaintiff’s complaint, “no presumptive truthfulness attaches to a plaintiff’s allegations.” Martinez v. U.S. Post Office, 875 F. Supp. 1067, 1070 (D.N.J. 1995) (citing Mortensen v. First Fed. Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). “Accordingly, unlike a Rule 12(b)(6) motion, consideration of a Rule 12(b)(1) jurisdiction-type motion need not be limited; conflicting written and oral evidence may be considered and a court may ‘decide for itself the factual issues which determine jurisdiction.” Id. (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.) Cert. denied, 454 U.S. 897 (1981)). “When resolving a factual challenge, the court may consult materials outside the pleadings, and the burden of proving jurisdiction rests with the plaintiff.” Med. Soc’y of N.J. v. Herr, 191 F. Supp. 2d 574, 578 (D.N.J. 2002) (citing Gould Elecs. Inc. v. U.S., 220 F.3d 169, 176, 178 (3d Cir. 2000)). However, “[w]here an attack on jurisdiction implicates the merits of plaintiff’s [F]ederal cause of action, the district court’s role in judging the facts may be more limited.” Martinez, 875 F. Supp. at 1071 (citing Williamson, 645 F.2d at 413 n.6). C. FED. R. CIV. P. 8(a) and 9(b) Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a). Fraud-based claims are subject to FED. R. CIV. P. 9(b). Dewey v. Volkswagon, 558 F.Supp.2d 505, 524 (D.N.J. 2008) (“[New Jersey Consumer Fraud Act] claims ‘sounding in fraud’ are subject to the particularity requirements of Federal Rule of Civil Procedure 9(b).”). 4 Case 2:12-cv-02060-DMC-JAD Document 22 Filed 01/28/13 Page 4 of 11 PageID: 575Case 3:16-cv-0 369-BAS-JM Document 25-7 Filed 02/27/17 ageID.748 Page 5 of 12 Under Rule 9(b), “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” A Plaintiff must state the circumstances of the alleged fraud “with sufficient particularity to place the Defendant on notice of the ‘precise misconduct with which [it is] charged.’ ” Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (citing Lum v. Bank of America, 361 F.3d 217, 223–224 (3d Cir. 2004). To satisfy this standard, the Plaintiff must plead or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation.” Id. III. DISCUSSION A. NJCFA Claims In Count I of their Amended Complaint, Plaintiffs allege violations of the NJCFA. The relevant provision of the NJCFA provides: The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice. N.J. Stat. Ann. § 56:8-2. Private causes of action are authorized under N.J. Stat. Ann. § 56:8-19. To state a claim under the NJCFA, a plaintiff must establish "(1) unlawful conduct by defendant; (2) an ascertainable loss by plaintiff; and (3) a causal relationship between the unlawful conduct and the ascertainable loss." Mercado v. Bank of America, N.A., 2012 WL 5629749, at * 2 (D.N.J. Nov. 15, 2012) (quoting Bosland v. Warnock, Dodge, Inc., 197 N.J. 543, 557 (2009)). 5 Case 2:12-cv-02060-DMC-JAD Document 22 Filed 01/28/13 Page 5 of 11 PageID: 576Case 3:16-cv-0 369-BAS-JM Document 25-7 Filed 02/27/17 ageID.749 Page 6 of 12 1. Unlawful Conduct To constitute consumer fraud, “the business practice in question must be misleading and stand outside the norm of reasonable business practice in that it will victimize the average consumer.” Turf Lawnmower Repair, Inc.v. Bergen Record Corp., 655 A.2d 417, 430 (N.J. 1995). It is common practice for retail marketing to advertise promotions and sales events throughout any given year. Plaintiffs do not lend factual support to their conclusion that Jos. A. Bank’s practices deviate from the norm of reasonable business practice and instead attempt to shift the burden to Jos. A. Bank to demonstrate other retail marketing practices. (Pls.’ Opp. Br. 14, Sept. 27, 2012, ECF No. 18). Plaintiffs allege that Jos. A. Bank entered into an Assurance of Discontinuance (“the Assurance”) with the Attorney General of the State of New York, in which the Company agreed not to advertise, offer, or sell any item at a “sale” or discount from a purported “regular” price, unless the price is the “actual bona fide price at which the item was openly offered for sale by Jos. A Bank.” (Am. Compl. ¶ 31). However, Plaintiffs allege no facts linking the Assurance with the instant matter nor do they assert that Jos. A. Bank’s current marketing practices are identical to the advertising methods utilized before the Assurance was entered into. Even after amendment, the Amended Complaint still fails to meet the particularity standard set forth in Rule 9(b). Plaintiffs have alleged that Jos. A. Bank misrepresented the regular pricing of its merchandise, yet have not provided any facts which demonstrate that the “sale” price offered is identical to the true regular price of the merchandise and thus a misrepresentation. Furthermore, Plaintiffs identify and quote from documents and advertisements identifying sales at Jos. A. Bank throughout one calendar year. (Pls.’ Opp. Br. 19-20; Am. Compl. ¶¶ 4, 28-30). Plaintiffs seek remedies for a nationwide class that purchased 6 Case 2:12-cv-02060-DMC-JAD Document 22 Filed 01/28/13 Page 6 of 11 PageID: 577Case 3:16-cv-0 369-BAS-JM Document 25-7 Filed 02/27/17 ageID.750 Page 7 of 12 merchandise from Jos. A. Bank during a more than six year class period, yet no allegations as to misleading sales are made prior to August 5, 2011. Plaintiffs have thus failed to allege sufficient facts with particularity to demonstrate a plausible claim of any unlawful conduct by Defendant. 2. Ascertainable Loss This Court's inquiry into whether Plaintiffs' NJCFA claims are sustainable depends, in part, on whether Plaintiffs have suffered an ascertainable loss. Plaintiffs argue that their NJCFA claims are sustainable based on the "benefit-of-the-bargain" theory, which allows for recovery of the difference between price paid and the value of the property had the representations been true. (Pls.' Opp. Br. 24) (citing McConkey v. AON Corp., 354 N.J. Supper. 25, 52 (App. Div. 2002)). Plaintiffs have failed to adequately plead that they suffered an ascertainable loss. Plaintiffs assert that, because the allegations of Jos. A. Bank’s advertising practices span an extended period of time, “Plaintiffs need not list each and every instance of such misrepresentations.” (See Pls.’ Opp. Br. 13) (citing Ticketmaster L.L.C. v. RMG Techs., No. 07-2534, 2007 WL 2989504, at *2 (C.D. Cal Oct. 12, 2009)). Plaintiffs allege only that “the ascertainable loss suffered by Plaintiffs is the difference between what the regular price actually was and what the discount price should have been” yet have failed to provide this Court with even a vague estimate of that figure or facts suggesting one exists. (Pls.’ Opp. Br. 23). Otherwise fatal to Plaintiffs' claim is the failure of proof problem with the contention that Plaintiffs “would have paid substantially less for the merchandise” had Jos. A. Bank suits not been on sale every day. (Pl.'s Opp. Br. 8). In support of this argument, Plaintiffs rely only on speculation of what future discovery will yield, i.e. that the regular price of Jos. A. Bank suits was never the regular price indicated. (Pl.’s Opp. Br. 14). Without more, such allegations do not satisfy the NJCFA's "ascertainable loss" requirement. See Bowman v. RAM Medical, Inc., 7 Case 2:12-cv-02060-DMC-JAD Document 22 Filed 01/28/13 Page 7 of 11 PageID: 578Case 3:16-cv-0 369-BAS-JM Document 25-7 Filed 02/27/17 ageID.75 Page 8 of 12 No. 10-cv-4403, 2012 WL 1964452, at *4 (D.N.J. May 31, 2012); Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 115 (App. Div. 2009). Plaintiffs have not alleged that the product was defective nor that they did receive what they were promised. Plaintiff Matthew Villani, for example, does not allege that he purchased two suits but did not receive seventy (70) percent off the price of the suits. (See Am. Compl. at ¶ 10). Nor do Plaintiffs allege that they were dissatisfied with the product, demanded a refund, or had their refund refused. Plaintiffs’ claimed monetary loss is thus purely hypothetical and speculative. Therefore, the facts as alleged in the complaint do not constitute an “ascertainable loss” under N.J.S.A. 56:8-19. See Hoffman, 405 N.J. Super. at 115. Plaintiffs have thus failed to state a claim upon which relief can be granted under the NJCFA and Count I is dismissed. B. Unjust Enrichment and Restitution Claims In Count II of the Amended Complaint, Plaintiffs allege unjust enrichment and seek restitution. The Amended Complaint alleges that: (1) as a result of Jos. A. Bank’s wrongful and deceptive conduct, Plaintiffs have suffered a detriment while Jos. A. Bank received a benefit, and (2) Jos. A. Bank’s misleading, inaccurate and deceptive marketing cultivates the perception that consumer[s] are being offered a discount from the Company’s regular prices when, in fact, they are not.” (Am. Compl. ¶ ¶ 45-46). Plaintiffs maintain that, had Jos. A. Bank not represented that items were “on sale,” Plaintiffs would not have purchased Jos. A. Bank merchandise, or would have paid significantly less for it. “To establish unjust enrichment, a plaintiff must show that defendant received a benefit and that retention of that benefit without payment would be unjust.” VRG Corp. V. GKN Realty Corp., 641 A.2d 519, 526 (N.J. 1994) (internal citations omitted). The doctrine of unjust 2As the first two required elements to successfully state a claim under claim under the NJCFA, the final element, a causal relationship between the unlawful conduct and the ascertainable loss, need not be discussed by this Court. 8 Case 2:12-cv-02060-DMC-JAD Document 22 Filed 01/28/13 Page 8 of 11 PageID: 579Case 3:16-cv-0 369-BAS-JM Document 25-7 Filed 02/27/17 ageID.752 Page 9 of 12 enrichment “requires that plaintiff show that it expected remuneration from the defendant at the time it performed or conferred a benefit on defendant and the failure of remuneration enriched defendant beyond its contractual rights.” Slack v. Suburban Propane Partners, L.P., No. 10- 2548, 2010 WL 5392845, at * 9 (D.N.J. 2010) (citing VRG Corp., 641 A.2d at 526). Although Plaintiffs are permitted to plead in the alternative, Plaintiffs’ Complaint does not allege that Plaintiffs were made to pay a price other than the one advertised nor that the Defendants did not deliver the merchandise advertised and promised. (See Am. Compl. ¶¶ 9- 11). Because Plaintiffs received the merchandise they paid for, Plaintiffs have failed to a state a claim for unjust enrichment that is plausible on its face. See Slack, 2010 WL 5392845, at *9 (dismissing an unjust enrichment claim “[b]ecause Plaintiffs received the propane they paid for”); see also In re Toshiba Am. HD DVD Mktg. & Sales Practices Litig., Civ. 08-939, 2009 WL 2940081 at *14 (D.N.J. Sept. 11, 2009) (finding “Plaintiffs paid for HD DVD Players capable of playing HD DVDs and that is exactly what they received” and dismissing the unjust enrichment claim). Accordingly, Plaintiffs have failed to state a claim upon which relief can be granted for unjust enrichment and Count II of the Amended Complaint is dismissed. C. Plaintiffs’ Standing to Seek Injunctive Relief and Damages Plaintiffs seek “an injunction preventing Jos. A. Bank from using promotional material and advertising campaigns that are misleading and deceptive and that have the capacity to mislead consumers to believe they are being offered a discount from the Company’s regular prices, when in fact, that are not.” (Am. Compl. ¶ B). Plaintiffs also seek compensatory and treble damages. (Am. Comp. ¶¶ F, G). Jos. A. Bank asserts Plaintiffs do not have standing under Article III of the U.S. Constitution to obtain such relief. (Def.’s Br. 37). A plaintiff has standing when three elements are demonstrated: 9 Case 2:12-cv-02060-DMC-JAD Document 22 Filed 01/28/13 Page 9 of 11 PageID: 580Case 3:16-cv-00369-BAS-JMA Document 25-7 2 7 7 ID.753 10 of 12 First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized; (b) actual or imminent, not conjectural or ‘hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be “redressed by a favorable decision. Lujan v. Defendants of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations and citations omitted). “In the class action context, that requirement must be satisfied by at least one named plaintiff.” McNair v. Synapse Group, Inc., 672 F.3d 213, 223 (3d Cir. 2012). In order for a federal court to properly assert power over a case, a plaintiff must show he has suffered an injury which will likely be redressed by a decision in his favor. Brown v. Fauver, 819 F.2d 395, 400 (3d Cir.1987). The type of relief sought is highly relevant in determining whether a particular plaintiff has standing. Id. Thus, it is possible that a plaintiff has standing to sue for damages but not for injunctive relief. Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Ashcroft v. Mattis, 431 U.S. 171 (1977); Warth v. Seldin, 422 U.S. 490 (1975); O'Shea v. Littleton, 414 U.S. 488 (1974)). Where a plaintiff has made a showing of past injury sufficient to establish standing to sue for damages, he must also show “a real and immediate threat that he would again” suffer the injury in order to obtain standing for prospective relief. Brown, 819 F.2d at 400 (quoting Lyons, 461 U.S. at 105). Under any interpretation of the facts of this case, Plaintiffs have failed to establish a real and immediate threat that they will suffer an injury as the result of any actions or policies of Defendant. Plaintiffs do not allege any intent or desire to purchase merchandise from Defendants in the future. The idea that Plaintiffs may subsequently be exposed to Defendant’s advertising techniques is an insufficient basis for standing. See McNair v. Synapse Group, Inc., 10 Case 2:12-cv-02060-DMC-JAD Document 22 Filed 01/28/13 Page 10 of 11 PageID: 581Case 3:16-cv-0 369-BAS-JM Document 25-7 Filed 02/27/17 ageID.754 11 of 2 672 F. 3d 213, 224 (3d Cir. 2012) (dismissing a claim for injunctive relief because “the wholly conjectural future injury [the plaintiffs] rely on does not, and cannot, satisfy the constitutional requirement that a plaintiff seeking injunctive relief must demonstrate a likelihood of future harm”). Therefore, it is the finding of this Court that Plaintiffs have failed to show a real or immediate threat, or even likelihood, that they will suffer future injury as a result of advertising done by Jos. A. Bank. Plaintiffs have similarly not provided any calculations for this Court to evaluate demonstrating a mark-up of price or what the average “regular” price to be paid for the merchandise in question was. Cf. Smith v. Chrysler Financial Co., LLC, No. 00-CV-6003, 2004 WL 3201002, at *3 (D.N.J. Dec. 30, 2004) . Thus, Plaintiffs have not alleged Plaintiffs are without standing to sue for injunctive relief or damages. IV. CONCLUSION Accordingly, we find that Plaintiffs have failed to adequately plead a claim upon which relief can be granted and Defendant’s Motion to Dismiss is granted without prejudice. S/ Dennis M. Cavanaugh Dennis M. Cavanaugh U.S.D.J. Date: January 28 , 2013 cc: All Counsel of Record Hon. J. A. Dickson, U.S.M.J. File 11 Case 2:12-cv-02060-DMC-JAD Document 22 Filed 01/28/13 Page 11 of 11 PageID: 582Case 3:16-cv-0 369-BAS-JM Document 25-7 Filed 02/27/17 ageID.755 12 of 12 Case 3:16-cv-00369-BAS-JMA Document 25-8 Filed 02/27/17 PageID.756 Page 1 of 3 Case 3:16-cv-00369-BAS-JMA Document 25-8 Filed 02/27/17 PageID.757 Page 2 of 3 Case 3:16-cv-00369-BAS-JMA Document 25-8 Filed 02/27/17 PageID.758 Page 3 of 3