UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SHAWNNA MONTES, on behalf of No. 23-35496 herself and all others similarly situated, D.C. No. 2:22-cv-00201- Plaintiff-Appellant, TOR

v. ORDER CERTIFYING SPARC GROUP, LLC, QUESTION TO THE Defendant-Appellee. WASHINGTON SUPREME COURT

Filed May 9, 2025

Before: Sidney R. Thomas, Kim McLane Wardlaw, and Daniel P. Collins, Circuit Judges.

Order; Concurrence by Judge Collins 2 MONTES V. SPARC GROUP, LLC

SUMMARY*

Washington’s Consumer Protection Act

In an action involving the scope of injury protected by Washington’s Consumer Protection Act, the panel certified the following question to the Washington Supreme Court:

When a seller advertises a product’s price, coupled with a misrepresentation about the product’s discounted price, comparative price, or price history, does a consumer who purchases the product because of the misrepresentation suffer an “injur[y] in his or her business or property” under Wash. Rev. Code §§ 19.86.020 and 19.86.090 if the consumer pays the advertised price?

Pertinent to this certification order, plaintiff Shawnna Montes filed a putative class action alleging that Aéropostale, a clothing brand operated by Defendant SPARC Group, LLC, violated the CPA by representing to consumers that clothing items for sale were at deeply discounted prices when in fact they had not been discounted at all, i.e., a “false discounting scheme.” Montes alleged three theories of injury. First under the “purchase price theory,” she alleged she was injured because but for the deceptive discount advertising she would not have purchased the leggings at the price that she paid. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MONTES V. SPARC GROUP, LLC 3

Second, under the “benefit of the bargain theory,” she alleged that she was injured because she did not receive the discount that she thought she was getting. Finally, under the “price premium theory,” she argues that the false discounting scheme raised the cost of Aéropostale’s clothes for all consumers, and therefore she purchased the leggings at an inflated price. The panel identified that the basis of the certification order was whether Washington law protects consumers from false discounting schemes, and if it does, whether Montes has adequately alleged an injury under Washington’s CPA by alleging that she would not have paid the price that she did for a pair of leggings but for misrepresentations about the leggings’ discount and price history. Concurring in the result, Judge Collins agreed with the decision to certify to the Washington Supreme Court the question set forth in the majority’s order. However, he did not join the majority’s reasoning to the extent that it suggested that plaintiff’s “purchase price theory” relied on the premise that the available purchase price changed due to the alleged misrepresentation and would have been lower in the absence of it. As set forth in her opening brief, plaintiff’s “purchase price theory” focused on misrepresentations that induce customers to make purchases that they otherwise would not have made—with the injury being the money spent on those purchases. Thus, the asserted injury and measure of damages was the full purchase price, with no reduction for the value received. Judge Collins also wrote that the majority provided an irrelev