UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

SUSAN CLARK, for herself No. 21-35334 and/or on behalf of all others similarly situated, D.C. No. Plaintiff-Appellant, 2:20-cv-01106-JCC

v. ORDER CERTIFYING EDDIE BAUER LLC; EDDIE QUESTION TO THE BAUER PARENT, LLC, OREGON SUPREME Defendants-Appellees. COURT

Filed April 14, 2022 Before: Jay S. Bybee, Carlos T. Bea, and Morgan Christen, Circuit Judges.

Order 2 CLARK V. EDDIE BAUER

SUMMARY *

Oregon Law

The panel certified to the Supreme Court of Oregon the following question:

Does a consumer suffer an “ascertainable loss” under Or. Rev. Stat. § 646.638(1) when the consumer purchased a product that the consumer would not have purchased at the price that the consumer paid but for a violation of Or. Rev. Stat. §§ 646.608(1)(e), (i), (j), (ee), or (u), if the violation arises from a representation about the product’s price, comparative price, or price history, but not about the character or quality of the product itself?

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CLARK V. EDDIE BAUER 3

COUNSEL Paul Karl Lukacs (argued), Daniel M. Hattis, and Che Corrington, Hattis & Lukacs, Bellevue, Washington, for Plaintiff-Appellant. Michael A. Vatis (argued), Steptoe & Johnson LLP, New York, New York; Stephanie A. Sheridan, Anthony J. Anscombe, and Meegan B. Brooks, Steptoe & Johnson LLP, San Francisco, California; for Defendants-Appellees.

ORDER

Susan Clark (“Plaintiff”) bought garments from Eddie Bauer Outlet Stores advertising sales of 40–70% off. The price tags of the garments included two numbers: a higher price, which the parties call a “reference” or “list price,” and a lower “sale” price. Plaintiff paid the “sale” price for the clothes. She alleges that she relied on the representation that she was getting the clothes on sale, but later discovered that the “list prices” were misleading because Eddie Bauer never sold some of the garments for the “list price” and that the Eddie Bauer Outlet Stores have perpetual sales of 40–70% off.

Plaintiff brought a single count under Oregon’s Unlawful Trade Practices Act, Or. Rev. Stat. § 646.605 et seq. (“UTPA”), against Eddie Bauer’s controlling entities, Eddie Bauer LLC and Eddie Bauer Parent LLC (collectively “Defendants”), in the District Court for the Western District of Washington, seeking money damages, equitable restitution, a permanent injunction, and the certification of a 4 CLARK V. EDDIE BAUER class action. 1 The diversity action alleges that Plaintiff would not have purchased the clothes at the prices that she paid if she had not been reasonably misled into thinking that the clothes she bought were usually sold by Eddie Bauer for (and had a true worth of) the “list price” on their price tags.

The district court granted Defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss with prejudice. The district court held, as relevant here, that Plaintiff failed to plead that she suffered an “ascertainable loss of money or property” due to Defendants’ unlawful trade practices, as required by § 646.638(1) of the UTPA. The district court reasoned that Plaintiff failed to provide any cases recognizing an “ascertainable loss” under the UTPA “based solely on a plaintiff’s failure to get as good of a deal as the plaintiff anticipated.” Relying primarily on Pearson v. Philip Morris, Inc., 361 P.3d 3 (Or. 2015), the district court concluded that