NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN CLARK, for herself and/or on No. 21-35334
behalf of all others similarly situated,
D.C. No. 2:20-cv-01106-JCC
Plaintiff-Appellant,
v. MEMORANDUM*
EDDIE BAUER LLC; EDDIE BAUER
PARENT, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted February 9, 2022
Submission Vacated April 14, 2022
Resubmitted January 17, 2024
Seattle, Washington
Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge BEA.
Plaintiff Susan Clark appeals the district court’s dismissal with prejudice of
her putative class-action complaint against Defendants Eddie Bauer LLC and Eddie
Bauer Parent, LLC (collectively, “Eddie Bauer”). Because the parties are familiar
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
with the facts of this case, we do not recount them here. We have jurisdiction under
28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.
Clark alleges that Eddie Bauer’s signs, product tags, and receipts misled her
into believing that she was purchasing clothing items for 50% of their normal sale
prices, when, in reality, Eddie Bauer had never sold those items at their normal sale
prices. Under Oregon’s Unlawful Trade Practices Act (“UTPA”), Clark seeks
punitive damages in addition to the greater of her actual or statutory damages,
retrospective equitable relief in the form of disgorgement or restitution, and
prospective equitable relief in the form of an injunction.
1. The district court dismissed Clark’s claims for monetary damages on
the basis that she could not plead “ascertainable loss of money or property[.]” Or.
Rev. Stat. § 646.638(1). According to the district court, Clark could not state a claim
under the UTPA because she did not allege a misrepresentation as to “a
characteristic, quality, or feature” of the clothing items she purchased. Employing
Oregon’s certification procedure, see Or. R. App. P. 12.20, we asked the Oregon
Supreme Court whether such a misrepresentation is necessary to state a claim under
the UTPA. See Clark v. Eddie Bauer LLC, 30 F.4th 1151, 1157 (9th Cir. 2022). The
Oregon Supreme Court accepted the certified question, Clark v. Eddie Bauer LLC,
510 P.3d 880 (Or. 2022), and answered as follows:
[A]n “ascertainable loss” within the meaning of the UTPA
can, under some circumstances, flow from a consumer’s
2
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.
Clark v. Eddie Bauer LLC, 532 P.3d 880, 893 (Or. 2023).
Because Clark’s “purchase price theory” adequately alleges ascertainable loss
under the UTPA,1 we reverse the district court’s dismissal of Clark’s claims for
monetary damages under the UTPA.2
1
At its essence, the purchase price theory is that one person
has been induced by another person’s unlawful activities
to pay money for something that the first person would not
otherwise have bought. In plaintiff’s case, what she
wanted was items of clothing whose selling price had, at
some earlier time, been what defendants’ false price
listings indicated. What she received, on the other hand,
was merchandise that had never been offered for sale at
those prices. Thus, whether or not those items ever sold at
those higher price points, and whether or not defendants’
alleged pricing scheme can be viewed as representing that
the items previously had retail or market values equivalent
to the prices shown on their product tags, plaintiff paid
money to defendants for articles of clothing that she would
not have bought had she known their true price history.
The money that plaintiff is out as a result is her “loss.”
Clark, 532 P.3d at 891 (emphasis in original).
2
Clark also alleged ascertainable loss under what she describes as her
“advantageous bargain” and “inflated consumer demand” theories. In our
certification order, we invited the Oregon Supreme Court to address these theories,
Clark, 30 F.4th at 1156–57, but it declined, Clark, 532 P.3d at 885 n.6, 887. It
“express[ed] no view” on those theories. Id. at 887 n.10. We do not address the
3
2. The district court dismissed Clark’s claims for equitable relief for
failure to state a claim, see Fed. R. Civ. P. 12(b)(6), reasoning that she did not
sufficiently plead that she lacked an adequate remedy at law, see Sonner v. Premier
Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020). We affirm in part and reverse
in part.
a. We agree that Clark fails to state a claim for retrospective equitable
relief, because her complaint contains no allegations as to why she lacks an adequate
remedy at law for her disgorgement and restitution claims. Even assuming that the
UTPA permits equitable relief without proof of inadequate legal remedies, “state
law can neither broaden nor restrain a federal court’s power to issue equitable relief.”
Id. at 841. In federal court, “a plain, adequate and complete remedy at law must be
wanting” before the court may grant equitable relief. Id. at 840 (quoting Guar. Tr.
Co. of N.Y. v. York, 326 U.S. 99, 105 (1945)). We therefore affirm the district court’s
dismissal of Clark’s disgorgement and restitution claims.
b. The district court’s dismissal of Clark’s injunctive relief claim,
however, was error. First, we conclude that Clark has Article III standing to bring
this claim based on our precedent in Davidson v. Kimberly-Clark Corp., 889 F.3d
956 (9th Cir. 2018). In Davidson, a class of consumers paid extra for wipes labeled
viability of Clark’s other theories because she states that “[i]t should not matter for
purposes of this appeal which of these theories fits which of Ms. Clark’s forms of
loss.”
4
as “flushable” that were not, in fact, flushable. Id. at 961–62. We held that “misled
consumers may properly allege a threat of imminent or actual harm sufficient to
confer standing to seek injunctive relief” to prohibit the defendants from falsely
advertising their product in the future. Id. at 961. Although the reasoning of
Davidson has since been called into question by the Supreme Court’s decision in
TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), the Supreme Court has not
sufficiently undermined Davidson to meet the “clearly irreconcilable” standard that
we articulated in Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
Under Miller, “[i]t is not enough for there to be ‘some tension’ between the
intervening higher authority and prior circuit precedent.” Lair v. Bullock, 697 F.3d
1200, 1207 (9th Cir. 2012) (quoting United States v. Orm Hieng, 679 F.3d 1131,
1140 (9th Cir. 2012)). Because Davidson “can be applied consistently” with
TransUnion, we must apply Davidson here. Fed. Trade Comm’n v. Consumer Def.,
LLC, 926 F.3d 1208, 1213 (9th Cir. 2019).
In her complaint, Clark alleges that she “would shop at one of Eddie Bauer’s
Oregon Outlet Stores again if she could have confidence regarding the truth of Eddie
Bauer’s prices and the value of its products.” Accordingly, she “will be harmed if,
in the future, she is left to guess as to whether Eddie Bauer is providing a legitimate
sale or not, and whether products are actually worth the amount that Eddie Bauer is
representing.” Cf. Davidson, 889 F.3d at 969–70 (“In some cases, the threat of future
5
harm may be the consumer’s plausible allegations that she will be unable to rely on
the product’s advertising or labeling in the future, and so will not purchase the
product although she would like to.”). Our dissenting colleague argues that Clark’s
alleged harm is insufficient to establish Article III standing but does not distinguish
Clark’s alleged harm from the harm we found suffered in Davidson. Whatever the
impact of the Supreme Court’s decision in TransUnion, we are not persuaded that it
has entirely undercut the reasoning and cases on which Davidson rested. See
Davidson, 889 F.3d at 971 (citing Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1258
(9th Cir. 2010) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 374 (1982))).
Eddie Bauer asserts a “factual attack on jurisdiction,” San Diego Cnty. Credit
Union v. Citizens Equity First Credit Union, 65 F.4th 1012, 1028 (9th Cir. 2023), by
submitting an affidavit attesting that it changed the above-described pricing
representations seven months before Clark filed her complaint. At that time, Eddie
Bauer began using “the term ‘Comparable Value’ to describe” its prices, which is
“based on the price of competing products of similar quality and style in the market.”
Eddie Bauer represents that it “has no intention to return to the previous price tags.”
Eddie Bauer’s adoption of the new pricing policy does not change our analysis
of Clark’s standing. Davidson instructs us to look at the injury the plaintiff has
suffered and may suffer in the future, not the method by which that injury is
inflicted. See Davidson, 889 F.3d at 971 (“[W]here standing for prospective
6
injunctive relief is premised entirely on the threat of repeated injury,” the claimant
must show “a sufficient likelihood that she will again be wronged in a similar way.”
(internal quotations and citation omitted and alteration adopted)). By making claims
about the value of competitors’ products, Eddie Bauer is representing that its own
products are being offered at a discount relative to products of similar quality. In
any event, Eddie Bauer’s new policy only changes a single component of what Clark
alleges to be a broader false advertising scheme consisting of misleading signage,
tags, and receipts. As a result, Clark will continue to face the same prospective
injury of being unable to rely on “the validity of the information advertised [by Eddie
Bauer] . . . despite [a] desire” to do so—the same injury evident in Davidson. Id.
Having concluded that Clark has standing, we turn now to the district court’s
finding that Clark has failed to state a claim for injunctive relief. The injunctive
relief requested in Clark’s complaint was to “enjoin Defendants from the unlawful
conduct alleged herein,” that is, to prevent Eddie Bauer from engaging in misleading
pricing schemes in the future. Unlike a claim for disgorgement or restitution,
injunctive relief does not seek “the same amount of money for the exact same harm”
that Clark had suffered in the past. Sonner, 971 F.3d at 844. The district court thus
erred in concluding that both “past and future harms . . . are financial and both can
be cured by the monetary damages.” See, e.g., Andino v. Apple, Inc., No. 2:20-cv-
01628-JAM-AC, 2021 WL 1549667, at *5 (E.D. Cal. Apr. 20, 2021) (“Money
7
damages are an inadequate remedy for future harm, as they will not prevent
Defendant from continuing the allegedly deceptive practice.”). We therefore reverse
the district court’s dismissal of Clark’s injunctive relief claim.
3. Finally, the district court concluded that Clark’s complaint is barred by
the UTPA’s one-year statute of limitations. See Or. Rev. Stat. § 646.638(6). Clark
purchased the clothing items in March 2017 and April 2018, but did not file her
complaint until July 2020. Although Clark alleges that she did not discover that she
was defrauded until March 2020, the district court found that Clark failed to explain
the circumstances associated with that discovery, which is a requirement for
application of the discovery rule. The district court acknowledged that Clark could
cure this defect through an amendment but reasoned that an amendment would be
futile because Clark failed to plead ascertainable loss. Because we conclude that
Clark did adequately plead ascertainable loss, we reverse the district court’s denial
of leave to amend.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.3
3
The parties shall bear their own costs on remand.
8
FILED
Susan Clark v. Eddie Bauer, LLC, No. 21-35334 JAN 17 2024
MOLLY C. DWYER, CLERK
BEA, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I concur in Parts 1, 2.a, and 3 of the memorandum disposition. But in my view,
Clark’s claim for injunctive relief must be dismissed because she has not “identified
a close historical or common-law analogue for [her] asserted injury,” as is required
to establish Article III standing and, in turn, to invoke the jurisdiction of the federal
courts. See TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021). In concluding
that Clark has established Article III standing, the majority considers itself bound by
our Circuit’s prior decision in Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th
Cir. 2018). But Davidson’s reasoning was “fatally undercut by the Supreme Court”
in TransUnion and is therefore no longer binding in this Circuit. See United States
v. Lindsey, 634 F.3d 541, 550 (9th Cir. 2011); see also Langere v. Verizon Wireless
Servs., LLC, 983 F.3d 1115, 1121 (9th Cir. 2020) (“While following our past
decisions is important to preserve the stability of circuit law, that is secondary to
following the Supreme Court.”). Hence, I would dismiss Clark’s claim for injunctive
relief for lack of subject matter jurisdiction. I respectfully dissent.
1. Article III of the Constitution limits the judicial power to the resolution of
“Cases” and “Controversies.” U.S. Const. art. III. That limit on our jurisdiction
reflects the principle that “[f]ederal courts do not possess a roving commission to
publicly opine on every legal question.” TransUnion, 594 U.S. at 423.
1
To establish a case or controversy, the plaintiff must establish the “irreducible
constitutional minimum” of Article III standing. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). A plaintiff has standing only if he can show, among other
elements, that he has suffered a “concrete harm.” TransUnion, 594 U.S. at 417. And
the Supreme Court has instructed that, to establish a concrete harm, the plaintiff must
“identif[y] a close historical or common-law analogue for [his] asserted injury.”
TransUnion, 594 U.S. at 424; id. (“[C]ourts should assess whether the alleged
injury . . . has a ‘close relationship’ to a harm ‘traditionally’ recognized as providing
a basis for a lawsuit in American courts.” (quoting Spokeo, Inc. v. Robins, 578 U.S.
330, 341 (2016)). We do not open the doors to the federal courts merely because a
plaintiff is confused, distraught, upset, or the victim of a “microaggression.” See
Pucillo v. Nat’l Credit Systems, Inc., 66 F.4th 634, 639 (7th Cir. 2023) (“If we were
to recognize standing based solely on confusion or alarm, unmoored from concrete
harm, there would be no limiting principle.”). As the Supreme Court has put it, we
cannot “loosen Article III based on contemporary, evolving beliefs about what kinds
of suits should be heard in federal courts.” TransUnion, 594 U.S. at 425.
2. In my view, Clark lacks Article III standing to pursue injunctive relief because
she has not alleged a concrete harm to pursue that form of relief. See Friends of the
Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 185 (2000) (“[A] plaintiff
must demonstrate standing separately for each form of relief sought.”); TransUnion,
2
594 U.S. at 435 (explaining that, to establish standing for injunctive relief, a plaintiff
must show a risk of future harm that is “imminent and substantial”). Clark’s alleged
“injury”—that she is unable to rely on Eddie Bauer’s future marketing
representations, despite her desire to do so, because Eddie Bauer deceived her in the
past—does not have a historical or common-law analogue. Clark is merely upset
with Eddie Bauer. That does not give us the power to hear her suit. See TransUnion,
594 U.S. at 424.
The closest historical analogue to Clark’s alleged injury is the tort of
misrepresentation. But “[f]or centuries, misrepresentation torts have required a
showing of justifiable reliance and actual damages.” Trichell v. Midland Credit
Mgmt., Inc., 964 F.3d 990, 998 (11th Cir. 2020); see Restatement (Second) of Torts,
§ 552. At common law, the justifiable reliance requirement “exclude[d] recovery if
the [plaintiff] knows or suspects the truth.” Mayer v. Spanel Intern. Ltd., 51 F.3d
670, 676 (7th Cir. 1995). Thus, there is no justifiable reliance if the plaintiff “is on
notice that the statement is not to be trusted.” Dobbs Law of Torts, § 672. Indeed,
“once the plaintiff believes the defendant to be dishonest,” a plaintiff generally must
investigate before transacting. Id. § 673. Here, Clark already believes Eddie Bauer’s
marketing representations are misleading. At common law, she could not establish
justifiable reliance if she opted to transact with Eddie Bauer despite her suspicions.
3
Moreover, at common law, a claim for misrepresentation was available only
if the plaintiff suffered pecuniary damages. See Pasley v. Freeman (1789) 100 Eng.
Rep. 450, 453 (Buller, J.) (“Fraud without damage, or damage without fraud, gives
no cause of action; but where these two concur, an action lies.”); Trichell, 964 F.3d
at 998 (referring to actual damages as a “bedrock element” of misrepresentation at
common law); Perez v. McCreary, Veselka, Bragg & Allen, P.C., 45 F.4th 816, 825
(5th Cir. 2022) (“The nature of the harm recognized by fraudulent misrepresentation
is a traditional, tangible harm: the ‘pecuniary loss’ the plaintiff sustains. And that
means . . . intangible harm, if it’s a harm at all—is necessarily different ‘in kind’
from her common-law analog.”). Common law did not protect people like Clark,
who merely wished to transact in the future, before any damages were suffered. See
Restatement (Second) of Torts, § 525; Restatement (First) of Torts, § 549. Thus, the
historical tort of misrepresentation does not make Clark’s confusion a concrete harm.
Nor has Clark stated a claim that is similar to the tort of Intentional Infliction
of Emotional Distress (“IIED”). At most, Clark claims she is disillusioned to learn
that what she thought was her coup in scoring a bargain turned out to have
evaporated; she can’t boast to her friends of her sharp shopping. But to state a claim
for IIED, Clark would need to allege that Eddie Bauer (1) engaged in “extreme and
outrageous conduct,” and (2) “intentionally or recklessly cause[d] severe emotional
distress to [her].” Restatement (Second) of Torts § 46. Clark’s allegations of
4
confusion and disillusionment do not amount to the severe emotional distress
necessary to state an IIED claim. See id. cmt. j (“The law intervenes only where the
distress inflicted is so severe that no reasonable man could be expected to endure
it.”). Moreover, Clark did not allege that Eddie Bauer intended to cause her severe
emotional distress.
In sum, Clark has not identified a historical or common-law analogue for her
alleged injury. Under TransUnion, then, she has not established a concrete harm. See
594 U.S. at 424. Thus, she lacks standing to pursue injunctive relief. See id. at 417.
3. In holding that Clark has established a concrete harm, the majority does not
even consider whether Clark satisfies the requirements of TransUnion. Instead, the
majority opts to follow our Circuit’s prior decision in Davidson, 889 F.3d at 971.
The problem for the majority, however, is that TransUnion—which postdated
Davidson—directly undercut Davidson and is “clearly irreconcilable” with its
reasoning and holding. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en
banc). Regardless whether Clark’s injury is distinguishable from that recognized in
Davidson, our duty as inferior court is to apply the Supreme Court’s commands
whenever the Court has “undercut the theory or reasoning underlying the prior
circuit precedent.” See id. We should not simply follow our precedent reflexively.
In Davidson, we held that the plaintiff’s “inability to rely on the validity of
the information advertised on Kimberly-Clark’s wipes despite her desire to
5
purchase” those wipes amounted to a “concrete . . . informational injur[y]” sufficient
for Article III standing. 889 F.3d. at 971. We concluded that Davidson’s injury was
“concrete” because “[t]his court recognizes a history of lawsuits based on similar
informational injuries.” Id. (citing Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1258
(9th Cir. 2010)). That “history of lawsuits” derived from Rey, which we described
as “discussing the history of informational injury serving as an injury-in-fact
sufficient for standing.” Id. Rey, in turn, held “the notion of an informational injury
serving as an injury-in-fact sufficient for standing can be traced” to Federal Election
Commission v. Akins, 524 U.S. 11 (1998), Pub. Citizen v. United States Dep’t of
Justice, 491 U.S. 440 (1989), and Havens Realty Corp. v. Coleman, 455 U.S. 363
(1982).1 622 F.3d at 1258. Davidson, in turn, rests exclusively on those same cases.
But three years later, the Supreme Court in TransUnion held Akins and Public
Citizen do not establish a concrete harm in cases, like this one, involving the receipt
of inaccurate information. There, the plaintiffs sued under the Fair Credit Reporting
Act after they had received inaccurate credit reports. 594 U.S. at 439. The United
1
In Akins, the Court held that voters had suffered a concrete harm because they
had been denied information that the Federal Election Campaign Act required to be
made public. 524 U.S. at 24–25. In Public Citizen, the Court held that public interest
organizations had suffered a concrete harm because they had been denied reports
and notes from an advisory committee that the Federal Advisory Committee Act
required to be made public. 491 U.S. at 449. In Havens, the Court held a Black
“tester” had standing to sue for a violation of the Fair Housing Act because a real
estate agent failed to disclose apartments to her because of her race. 455 U.S. at 373.
6
States, as amicus curiae, argued the plaintiffs suffered a concrete “informational
injury” under Akins and Public Citizen. Id. at 441. The Court rejected that argument:
The plaintiffs did not allege that they failed to receive any
required information. They argued only that they received
it in the wrong format. Therefore, Akins and Public Citizen
do not control here. In addition, those cases involved
denial of information subject to public-disclosure or
sunshine laws that entitle all members of the public to
certain information. This case does not involve such a
public-disclosure law.
Moreover, the plaintiffs have identified no “downstream
consequences” from failing to receive the required
information. They did not demonstrate, for example, that
the alleged information deficit hindered their ability to
correct erroneous information before it was later sent to
third parties. An asserted informational injury that causes
no adverse effects cannot satisfy Article III.
Id. at 441–42 (cleaned up) (emphases added).
Like the plaintiffs in TransUnion, neither Clark nor Davidson “allege[d] that
they failed to receive any required information.” See id. “Therefore, Akins and
Public Citizen do not control here.” Id. And like the Fair Credit Reporting Act in
TransUnion, Oregon’s Unfair Trade Practices Act “does not involve such a public-
disclosure law” as at issue in Akins and Public Citizen. See id. Finally, as in
TransUnion, neither Clark nor Davidson alleged the misrepresentations would cause
them monetary harm or any other harm that has a historical or common-law analogue
in the future. To the contrary, Clark alleged her lack of intent to shop at Eddie Bauer
until she can trust its marketing representations. In other words, Clark alleged there
7
is no risk that she will “imminent[ly]” suffer any “downstream consequences”—
such as money damages—that amount to a concrete harm. See id. at 435, 442. Under
the express terms of TransUnion, then, Akins and Public Citizen “do not control,”
notwithstanding Davidson’s irreconcilable reasoning to the contrary. See id. at 441.
Nor does Havens save Davidson. The Court in TransUnion did not even
suggest that Havens might support the plaintiffs’ injuries, even though both cases
involved the receipt of misleading information. Indeed, Havens involved the weighty
interest in not being subjected to racial discrimination, a far cry from the receipt of
an incorrect credit report, or, as here, an inability to rely on a retail store’s purported
bargains. If Havens supported an injury in more benign contexts, the Court in
TransUnion would have reached a contrary conclusion or explained why Havens
was inapposite. But it did not do so. In fact, the Court has, in other cases, clarified
that racial discrimination alone can afford standing to “persons who are personally
denied equal treatment by the challenged discriminatory conduct.” Allen v. Wright,
468 U.S. 737, 755 (1984) (quoting Heckler v. Mathews, 465 U.S. 728, 739-40 (1984)
(“[D]iscrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by
stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as
less worthy participants in the political community, can cause serious non-economic
injuries to those persons who are personally denied equal treatment . . . .”)).
8
Moreover, unlike the plaintiff in Havens, who was told no units were available,
Clark’s access to Eddie Bauer’s goods was never impeded. See 455 U.S. at 368.
In sum, Davidson’s reasoning was “fatally undercut” by the Supreme Court
in TransUnion and is, therefore, no longer binding. See Lindsey, 634 F.3d at 550.
And under TransUnion, Clark lacks Article III standing because her grievance with
Eddie Bauer lacks a historical or common-law analogue. Thus, I would dismiss
Clark’s claim for injunctive relief for lack of subject matter jurisdiction. I dissent.
9