Nathan Riensche v. Cingular Wireless LLC

MEMORANDUM

Plaintiffs Riensche and Bowden (hereinafter referred to collectively as “Plaintiffs”) are named plaintiffs in separate putative class action lawsuits, which were combined for this appeal. Plaintiffs appeal the district court’s grant of summary judgment in favor of Cingular Wireless, LLC (“Cingular”). We certified to the Washington Supreme Court the question of whether Section 82.04.500 of the Washington Revised Code allows a seller to recoup its business and occupation (“B & O”) tax by collecting a surcharge from consumers in addition to the monthly service fee. The Washington Supreme Court accepted the question and held that a business was not allowed to pass along the tax as a separate surcharge in addition to the sales price; any taxes must be incorporated into the final sales price. In the consolidated appeal before us, Cingular now argues that the Washington Supreme Court’s decision is preempted by federal law, and even if it is not, that Plaintiffs have no remedy for Cingular’s violation of Section 82.04.500. We have jurisdiction under 28 U.S.C. § 1291 . Based on the Washington Supreme Court’s decision, we reverse the ruling of the district court.

1. Section…