Clark v. Eddie Bauer LLC

The United States Court of Appeals for the Ninth Circuit asked the Oregon Supreme Court to certify the question of whether a retailer who misrepresents the price history or comparative price of its products may cause a consumer to suffer ascertainable financial or property loss under Oregon's Unlawful Trade Practices Act (UTPA), specifically ORS 646.638(1). Plaintiff argued that she was falsely induced to buy the garments as a result of Eddie Bauer LLC's (Eddie Bauer) false representations about the bargain price, which the courts called the "purchase price theory” of ascertainable loss. According to Eddie Bauer, Plaintiff received exactly what she thought she was buying, and the items were worth at least what she paid at the time of sale. When consumers purchase a product based on a retailer's misrepresentations of price history or comparative prices, an ascertainable loss may occur under the meaning of the UTPA. The Court found that consumers are damaged by spending money they would not otherwise spend as a result of the deception. The Court explained the seller's misrepresentation of the item's price history had been a violation, and there had been a resulting ascertainable loss, which was the expenditure of the purchase price. Thus, the Court held that Plaintiff's purchase price theory is a valid theory of ascertainable loss even if there is no evidence that the seller misrepresented a product's characteristics or quality. The certified question is answered.