False claims of discounts cause Article III injury

Morrow v. Ann Inc., 2017 WL 363001, No. 16-CV-3340 (S.D.N.Y.
Jan. 24, 2017)
Plaintiffs alleged that Ann deceptively advertised
merchandise sold in its Ann Taylor Factory and LOFT Outlet stores by falsely
claiming on its sales tags, in-store signage, and website that products sold in
outlet stores were originally or regularly sold at much higher prices.  They brought the usual California (and other
state consumer protection law) claims.
Ann argued that plaintiffs lacked Article III standing for
want of a concrete injury.  Though they
alleged that they wouldn’t have bought the products had they known the truth,
they didn’t allege that the merchandise was worth less than the price they
actually paid for it. Still, they alleged Article III injury—they spent money
they otherwise would not have spent, which is sufficiently concrete.  Spokeo
doesn’t change that, since it’s about bare statutory violations in the absence
of concrete injury.
Likewise, plaintiffs adequately pled lost money or property
under California law.  The allegedly
false labels induced them to buy products they wouldn’t otherwise have
bought.  Ann argued that only
misrepresentations about the “nature of the product” could confer standing, but
California law required only that the misrepresentation affect consumers’
“beliefs about quality,” and “[p]rices, like other attributes, can impact
consumers’ perception of merchandise.”
Among other things, Ann argued that reasonable consumers
wouldn’t be deceived, but this is a question for a jury.  Plus, the court noted, “the very fact that
Ann represented its prices as discounted suggests that such representations
might impact reasonable consumer purchasing decisions.”

Ann also argued that claims based on the FTCA should be
dismissed because there’s no private right of action under that law.  If plaintiffs were actually trying to assert
direct FTCA claims, that would be true. But instead, they were using the
alleged FTCA violation to identify “unlawful” conduct under the UCL.  It’s ok to use FTCA violations to establish
unlawfulness when another statute does confer a private right of action. 

from Blogger http://ift.tt/2kjbPn8

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