SUSAN CLARK V. EDDIE BAUER LLC, No. 21-35334 (9th Cir. 2022)
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Plaintiff bought garments from Eddie Bauer Outlet Stores advertising sales of 40–70% off. The price tags of the garments included two numbers: a higher price, which the parties call a “reference” or “list price,” and a lower “sale” price. Plaintiff paid the “sale” price for the clothes. She alleges that she relied on the representation that she was getting the clothes on sale, but later discovered that the “list prices” were misleading because Eddie Bauer never sold the garments for the “list price” and that the Eddie Bauer Outlet Stores have perpetual sales of 40–70% off.
The court concluded that the disposition of this appeal turns on a question of Oregon law: whether a consumer suffers an “ascertainable loss” under Or. Rev. Stat. Sec. 646.638(1) when the consumer purchased a product that the consumer would not have purchased at the price that the consumer paid but for a violation of Or. Rev. Stat. Secs. 646.608(1)(e), (i), (j), (ee), or (u), if the violation arises from a representation regarding the product’s price, comparative price, or price history, but not about the character or quality of the product itself.
Court Description: Oregon Law. The panel certified to the Supreme Court of Oregon the following question: Does a consumer suffer an “ascertainable loss” under Or. Rev. Stat. § 646.638(1) when the consumer purchased a product that the consumer would not have purchased at the price that the consumer paid but for a violation of Or. Rev. Stat. §§ 646.608(1)(e), (i), (j), (ee), or (u), if the violation arises from a representation about the product’s price, comparative price, or price history, but not about the character or quality of the product itself? CLARK V. EDDIE BAUER 3
The court issued a subsequent related opinion or order on January 17, 2024.
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