Harbers v. Eddie Bauer, LLC

• Decision Date: 27 November 2019
• Docket Number: CASE NO. C19-0968JLR
• Citation: 415 F.Supp.3d 999
• Parties: Jennifer HARBERS, Plaintiff, v. EDDIE BAUER, LLC, Defendant.
• Court: U.S. District Court — Western District of Washington

415 F.Supp.3d 999

Jennifer HARBERS, Plaintiff,

v.EDDIE BAUER, LLC, Defendant.

CASE NO. C19-0968JLR

United States District Court, W.D. Washington, at Seattle.

November 27, 2019

Che Z. Corrington, Daniel M. Hattis, Hattis & Lukacs PLLC, Bellevue, WA, Paul Karl Lukacs, Hattis & Lukacs, Sacramento, CA, for Plaintiff

Anthony Anscombe, Steptoe & Johnson LLP, Chicago, IL, Meegan Brooks, Stephanie Sheridan, Steptoe & Johnson LLP, San Francisco, CA, Marc C. Levy, Thomas Shewmake, Seed Intellectual Property Law Group PLLC, Seattle, WA, for Defendant

ORDER DENYING PLAINTIFF'S MOTION TO REMAND

JAMES L. ROBART, United States District Judge

I. INTRODUCTION

Before the court is Plaintiff Jennifer Harbers' motion to remand this action to King County Superior Court. (Mot. (Dkt. # 13).) The court has considered Ms. Harbers' motion, the parties' submissions related to the motion, Ms. Harbers' complaint (FAC (Dkt. # 1-2)), relevant portions of the record, and the applicable law. Being fully advised,¹ the court DENIES Ms. Harbers' motion to remand.

II. BACKGROUND

Ms. Harbers filed a putative class action complaint in King County Superior Court alleging that Eddie Bauer violated certain provisions of the Washington Commercial Electronic Mail Act ("CEMA"), RCW ch. 19.190, and the Washington Consumer Protection Act ("CPA"), RCW ch. 19.86. (See generally FAC.) Ms. Harbers alleges that since November 2017, she has received roughly 43 Eddie Bauer marketing e-mails containing "xx% Off Everything," "xx% Off Your Purchase," "Take xx% Off," "Get xx% Off," or similar language in the subject line. (Id. ¶¶ 24-28.)

Ms. Harbers contends that these subject lines contain two types of false or misleading statements. First, Ms. Harbers asserts that the percentage-off statements are false or misleading because "in reality, Eddie Bauer is not offering the products at the promised discount." (Id. ¶ 2.) Ms. Harbers alleges that she thought the percentage-off discounts indicated "a percentage off the price at which Eddie Bauer previously offered its products in good faith for a significant period of time." (Id. ¶ 25.) Ms. Harbers alleges that Eddie Bauer instead calculated these percentages from "fictitious list prices at which Eddie Bauer never offered its products, rarely offered its products, [or] temporarily offered its products in bad faith." (Id. )

Second, Ms. Harbers contends that "Everything" and "Off Your Purchase" are further false or misleading, and that she thought these subject lines meant that all Eddie Bauer's products would be offered at a discount. (See id. ¶¶ 26-28.) However, Ms. Harbers alleges that Eddie Bauer excluded some products from these discounts, such as sleeping bags, tents, and third-party brand products. (See id. )

Ms. Harbers claims that the 43 Eddie Bauer e-mails described above violate CEMA, which regulates various electronic practices, including the transmission of commercial e-mail messages.² Specifically, Ms. Harbers alleges a violation of the following CEMA provision:

No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission, of a commercial [e-mail] from a computer located in Washington or to an [e-mail] address that the sender knows, or has reason to know, is held by a Washington resident that...[c]ontains false or misleading information in the subject line.

See RCW 19.190.020(1)(b). Although CEMA does not provide a private right of action for damages, recipients of commercial e-mails containing false or misleading subject lines can sue for injunctive relief. Wright v. Lyft, Inc. , 189 Wash.2d 718, 406 P.3d 1149, 1155 n. 3 (2017) ("While an action for monetary damages is limited to phishing, we note that a plaintiff may bring an action to enjoin any CEMA violation."); see also RCW 19.190.090(1) ("A person who is injured under this chapter may bring a civil action in the superior court to enjoin further violations.").

In addition to the injunctive relief available under CEMA, a recipient of an unlawful commercial e-mail can bring a civil action against the sender under the CPA for either statutory or actual damages. See Gragg v. Orange Cab Co., Inc. , 145 F. Supp. 3d 1046, 1051 (W.D. Wash. 2015). CEMA explicitly provides:

It is a violation of the consumer protection act, chapter 19.86 RCW, to conspire with another person to initiate the transmission or to initiate the transmission of a commercial [e-mail] message that...[c]ontains false or misleading information in the subject line.

RCW 19.190.030(1)(b). Thus, "[u]nder RCW 19.190.030(1), it is a violation of the Washington CPA to violate RCW 19.190.020." Ferguson v. Quinstreet, Inc. , C07-5378RJB, 2008 WL 3166307, at *10 (W.D. Wash. Aug. 5, 2008), aff'd sub nom. Ferguson v. Active Response Grp. , 348 F. App'x 255 (9th Cir. 2009). Interpreting RCW 19.190.030(1)(b), Washington and federal courts have held that a plaintiff states a CPA claim solely by alleging the transmission of a commercial e-mail containing false or misleading information in the subject line. See State v. Heckel , 143 Wash.2d 824, 24 P.3d 404, 407 (2001) (" RCW 19.190.030 makes a violation of [CEMA] a per se violation of the [CPA]."). Indeed, by alleging a CEMA violation of RCW 19.190.020, a plaintiff alleges all five elements of a CPA violation: "(1) an unfair or deceptive act or practice, (2) in trade or commerce, (3) that impacts the public interest, (4) which causes injury to the party in his business or property" that is (5) causally linked to the unfair or deceptive act. See Gordon v. Virtumundo, Inc. , 575 F.3d 1040, 1065 (9th Cir. 2009) (citing Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co. , 105 Wash.2d 778, 719 P.2d 531, 535-37 (1986) ); Wright , 406 P.3d at 1155 ("We conclude that RCW 19.190.040 establishes the injury and causation elements of a CPA claim as a matter of law.").

Of particular relevance, a plaintiff alleging a CEMA violation under RCW 19.190.030(1) need not allege injury or causation beyond the CEMA violation. See Hoffman v. One Techs., LLC , No. C16-1006RSL, 2017 WL 176222, at *4 (W.D. Wash. Jan. 17, 2017) (concluding that the plaintiff stated a CPA claim under RCW 19.190.030(1)(b) by alleging that the defendant transmitted commercial e-mails containing false or misleading subject lines, even though he failed to separately allege an economic injury to his business or property). Moreover, the Washington Supreme Court recently held that CEMA's liquidated damages provision, RCW 19.190.040, establishes the injury and causation elements of a CPA claim as a matter of law.³ Wright , 406 P.3d at 1155.

Some courts have gone in a different direction when interpreting state statutes analogous to CEMA. See, e.g. , Beyond Sys., Inc. v. Kraft Foods, Inc. , 972 F. Supp. 2d 748, 766 (D. Md. 2013) (concluding that, for claims under the Maryland Commercial Electronic Mail Act, a plaintiff must show injury-in-fact as "the availability of statutory damages does not necessarily mean that the state legislature did not intend that a prospective litigant demonstrate at least some sort of adverse impact as a pre-requisite to suit."). Nevertheless, this court follows Washington Supreme Court precedent on matters of Washington law. See Teleflex Med. Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA , 851 F.3d 976, 982 (9th Cir. 2017) ("When interpreting state law, federal courts are bound by decisions of the state's highest court.") (internal quotation marks and citations omitted).

Ms. Harbers alleges two causes of action: (1) a per se violation of the CPA (see FAC ¶¶ 45-63); and (2) a CEMA violation (see id. ¶¶ 64-74). In her first cause of action, Ms. Harbers seeks both injunctive relief and statutory damages. (See id. ¶ 3.)

Ms. Harbers estimates that statutory damages will be $500 to each putative class member multiplied by 43 violative e-mails, the total of which exceeds one billion dollars. (See id. at 18.) Under her second cause of action, Ms. Harbers seeks only injunctive relief. (See id. )

On June 21, 2019, Eddie Bauer removed this action to federal court pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d). (Not. of Removal (Dkt. # 1) at 1.) In response, Ms. Harbers moves to remand, arguing that she intentionally does not allege a sufficiently concrete injury-in-fact to establish Article III standing in federal court. (See Mot. at 5.) Ms. Harbers explains her position as a "non-traditional—but increasingly common—tack" based on state law. (See id. ) Specifically, Ms. Harbers contends that she intentionally pleaded her claims to be non-removable. (Id. ) The court now considers Ms. Harbers' motion.

III. ANALYSIS

A. Standard for Motion to Remand

A civil action over which federal courts have original jurisdiction may be removed by a defendant from state to federal district court. 28 U.S.C. § 1441(a). "If it appears that the federal court lacks jurisdiction, however, ‘the case shall be remanded.’ " Martin v. Franklin Capital Corp. , 546 U.S. 132, 134, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (quoting 28 U.S.C. § 1447(c) ).

CAFA vests federal courts with original jurisdiction over class actions in which: (1) the amount in controversy exceeds $5,000,000; (2) diversity of citizenship exists between at least one plaintiff and one defendant; and (3) the number of plaintiffs in the class is at least one hundred. 28 U.S.C. § 1332(d)(2), (5), (6). However, if a plaintiff lacks Article III standing in a case removed under CAFA, the district court must remand the case. Polo v. Innoventions Int'l, LLC , 833 F.3d 1193, 1196 (9th Cir. 2016) ("The rule that a removed case in which the plaintiff lacks Article III standing must be remanded to state court under § 1447(c) applies as well to a case removed pursuant to CAFA"). Because state courts are not bound by the constraints of Article III, remand is the correct remedy for cases that lack federal subject matter jurisdiction. Id.

Although "no antiremoval presumption attends cases...