During a very busy December, I missed a highly interesting new UCL standing decision. In Veera v. Banana Republic, LLC, 6 Cal.App.5th 907 (Dec. 15, 2016), the plaintiffs shopped at Banana Republic after seeing a "40% off" sign in the window, only to be told at the check-out counter that the discount was limited to certain merchandise. "[O]ut of frustration and embarrassment," they bought at least one item at full price anyway. The Court of Appeal (Second Appellate District, Division Four) reversed summary judgment in the defendant's favor, holding that the plaintiffs had raised a triable issue on whether they suffered "economic injury" within the meaning of Kwikset.
[H]ere, plaintiffs ... bought certain items at full price, even though (assuming plaintiffs’ evidence of misleading advertising is true) Banana Republic sold those items to them in violation of the UCL, FAL, and CLRA. The economic harm thus suffered is the difference between the advertised price plaintiffs should have been charged, and the full price plaintiffs actually paid. (See Kwikset, supra, 51 Cal.4th at p. 325 [“If a party has alleged or proven a personal, individualized loss of money or property in any nontrivial amount, he or she has also alleged or proven injury in fact.”].)
Slip op. at 14. With one judge dissenting, the Court rejected the defendant's argument that its successful "bait and switch" tactic eliminated standing because the plaintiffs knew the actual price when they paid it:
Plaintiffs’ evidence portrays, in essence, a type of “bait and switch” advertising. (See Hawaii Community Federal Credit Union v. Keka (2000) 11 P.3d 1, 15 [“[t]he term ‘bait and switch’ is usually applied in the context of advertising goods or services with the intent not to sell them as advertised”]; Stern, Cal. Practice Guide: Bus. & Prof. Code Section 17200 Practice (The Rutter Group 2016) § 4:35 [“A ‘bait and switch’ is a form of false advertising in which advertisements may not be bona fide because what the merchant intends to sell is significantly different from that which drew the potential customer in. [Citation.]”].) In such a scheme, one of the dangers is that the consumer will rely on the deceptive advertising to decide to buy merchandise. Then, when the deception is revealed, the consumer, now invested in the decision to buy and swept up in the momentum of events, nonetheless buys at the inflated price, despite his or her better judgment.
If such a scheme is unsuccessful – that is, if the consumer is able to resist the influence of the momentum to buy created by the chain of events flowing from the false advertising – the consumer has no standing to bring a private action under Proposition 64, because the consumer has suffered no economic injury. That result is consistent with the purpose of Proposition 64, which was intended to curb “use [of the UCL] by unscrupulous lawyers who exploited the generous standing requirement . . . to file ‘shakedown’ suits to extort money from small businesses.” (Tobacco II, supra, 46 Cal.4th at p. 316.) ....
But under Banana Republic’s theory, if the scheme is successful – that is, if the consumer is influenced by the momentum to buy created by the false advertising, and therefore buys at the inflated price—the consumer, as a matter of law, also has no standing, because just before money changed hands, when the deception was finally revealed, the consumer learned the full price of the item bought. Under this theory, only in the very rare case when the advertiser surreptitiously charges an inflated price, which the consumer does not realize he has paid until after money has changed hands, does the consumer have standing to bring a private action. This result seems at odds with the intent of Proposition 64, which “did not propose to curb the broad remedial purpose of the UCL or the use of class actions to effect that purpose, but targeted only the specific abuse described above.” (Tobacco II, supra, 46 Cal.4th at p. 317.)
In sum, we conclude that plaintiffs have raised a triable issue whether they lost “money or property sufficient to qualify as injury in fact, i.e., economic injury,” and whether “that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset, supra, 51 Cal.4th at p. 322.)
Id. at 18-19.
This is an interesting case. The record appears to show that Banana Republic did, in fact, post unqualified "40% off" signs in its windows for at least a few days during the class period. Id. at 20. If that happened, and assuming the named plaintiffs have standing, then the remedy is for the discount to simply be given to everyone who made a full-price purchase on those days, which should be recorded in the defendant's records, at least for non-cash purchases. It looks like the next step here is class certification.