prospective injunctive relief for consumers hangs on in 9th Circuit for now

Clark v. Eddie Bauer LLC, 2024 WL 177755, No. 21-35334 (9^th Cir. Jan. 17, 2024)

This unpublished opinion has a dissent from Judge Bea indicating further disruptions in standing may be coming.

Clark appealed the dismissal of her putative class action complaint based on a “fake discount” theory, alleging that Eddie Bauer never sold the relevant items at the “normal” prices. After a question was certified to the Oregon Supreme Court, it ruled that

[A]n “ascertainable loss” within the meaning of the [Oregon] UTPA can, under some circumstances, flow from a consumer’s decision to purchase a product in reliance upon the retailer’s misrepresentation as to price history or comparative prices. Thus, plaintiff’s purchase price theory is a viable theory of ascertainable loss even in the absence of a showing that the seller misrepresented some characteristic or quality of the product sold.

Thus, the panel reversed Clark’s claims for money damages. Clark failed to state a claim for retrospective equitable relief because her complaint didn’t allege the absence of an adequate remedy at law for her disgorgement and restitution claims. But prospective injunctive relief was still possible because she alleged future harm (the failure to be able to rely on Eddie Bauer’s advertising). TransUnion didn’t clearly reject that circuit precedent.

Judge Bea dissented on the prospective relief part, reasoning that Clark hadn’t identified a sufficiently close common-law or historical analogue for her asserted injury. Inability to trust Eddie Bauer wasn’t enough. The closest historical analogue was misrepresentation, but “[f]or centuries, misrepresentation torts have required a showing of justifiable reliance and actual damages.” (Just imagine if courts treated trademark harm theories this way!) And Clark wasn’t justified in relying on Eddie Bauer’s prices because she knew the truth; plus, she didn’t have actual pecuniary damages. Prior circuit precedent relied on cases finding informational injuries sufficient for standing, which the Court has now disavowed: TransUnion said that “receipt of inaccurate information” wasn’t itself an injury where there was no duty to disclose and no resulting monetary harm.

I have to admit, I thought that TransUnion was the Supreme Court arrogating control over what constitutes an injury away from legislatures. But, once we’ve defined a good enough injury (harm from false advertising), the question of standing for injunctive relief seems to me to be a different type of question. Perhaps the Court will also ultimately ditch 9^th Circuit precedent on this point, but it’s not logically required.