Close v. Penney OpCo LLC

• Court: District Court, W.D. Washington
• Decided: June 20, 2025
• Docket: 3:24-cv-05756
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 VICKY CLOSE, CASE NO. 3:24-cv-05756-DGE 11 Plaintiff, ORDER TO SHOW CAUSE 12 v. 13 PENNEY OPCO LLC et al., 14 Defendant. 15

16 This matter comes before the Court on its own motion. A key legal question concerning 17 the viability of Plaintiff’s Washington Consumer Protection Act claim appears materially 18 identical to a question that the Ninth Circuit recently certified to the Washington Supreme Court 19 in Montes v. Sparc Group, LLC. See Montes v. Sparc Group, LLC, 2:22-cv-00201-TOR, Ninth 20 Circuit No. 23-35496. In Montes, which originated in the Eastern District of Washington, the 21 appellate panel certified the following question: “When a seller advertises a product’s price, 22 coupled with a misrepresentation about the product’s discounted price, comparative price, or 23 price history, does a consumer who purchases the product because of the misrepresentation 24 1 suffer an ‘injur[y] in his or her business or property’ under Wash. Rev. Code §§ 19.86.020 and 2 19.86.090 if the consumer pays the advertised price?” See Montes v. Sparc Group, LLC, 2:22- 3 cv-00201-TOR, Dkt. No. 32 at 2. 4 In this litigation, Plaintiff filed a complaint alleging that “[f]or years, JCPenney has 5 engaged in a massive false discount advertising scheme across nearly all of its products on both

6 its website and in its retail stores.” (Dkt. No. 1 at 2.) “JCPenney’s deceptive pricing scheme is 7 intended to trick consumers into believing that its products are worth, and have a market value 8 equal to, the inflated list price, and that the lower advertised ‘sale’ price represents a special 9 bargain,” Plaintiff argues. (Id.) Plaintiff alleges that she was harmed by the scheme when she 10 bought the Multi Sac North/South Zip Around Crossbody Bag, which was advertised as marked 11 down from $50 to $20. (Id. at 24.) “In reality, and unbeknownst to Ms. Close, JCPenney had 12 never offered the Bag at the purported regular price of $50,” Plaintiff argues; indeed, in the 13 weeks prior to her purchase, it was offered for $14. (Id. at 25.) Accordingly, Plaintiff claims the 14 advertised reference price constituted a material misrepresentation that induced her to purchase

15 the bag for more money than it was worth, resulting in a loss of money. (Id.) Plaintiff brings 16 one cause of action under the Washington Consumer Protection Act (Wash. Rev. Code 17 § 9.86.090.) and seeks injunctive relief and money damages. (Id. at 27–32.) 18 Neither party has asked this Court to stay this matter in light of the pending Montes 19 appeal, but based on its assessment that the Montes decision could resolve or narrow this dispute, 20 the Court orders the parties to show cause why this matter should not be stayed. To determine 21 whether a stay is appropriate, “the competing interests which will be affected by the granting or 22 refusal to grant a stay must be weighed.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). 23 Among those competing interests are “the possible damage which may result from granting a 24 1 stay, the hardship or inequity which a party may suffer in being required to go forward, and the 2 orderly course of justice measured in terms of the simplifying or complicating of issues, proof, 3 and questions of law which could be expected to result from a stay.” Id. In their responsive 4 briefs, the parties should address the elements of the multi-factor test above, including potential 5 benefits of a stay, such as judicial economy and efficiency, and any drawbacks, such as delay.

6 The parties should further address the extent to which Montes may resolve or narrow this 7 dispute. 8 Accordingly, the Court ORDERS both parties to show cause why this case should not be 9 stayed pending resolution of Montes. The Court directs the parties to meet and confer to 10 determine their positions as to a stay, and to respond as follows: 11 • If the parties agree on the propriety of a stay, or lack thereof, they may file a joint 12 position statement no later than 14 days from this Order. 13 • If the parties do not agree, Plaintiff shall file a statement of its position 14 days 14 from this Order, and Defendant shall file a statement 21 days from this Order.

15 16 Dated this 20th day of June, 2025. 17 a 18 David G. Estudillo 19 United States District Judge

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