Antonio Hinojos v. Kohl's Corporation

Opinion by Judge REINHARDT; Concurrence by Judge WARDLAW.

OPINION

Most consumers have, at some point, purchased merchandise that was marketed as being “on sale” because the proffered discount seemed too good to pass up. Retailers, well aware of consumers’ susceptibility to a bargain, therefore have an incentive to lie to their customers by falsely claiming that their products have previously sold at a far higher “original” price in order to induce customers to purchase merchandise at a purportedly marked-down “sale” price. Because such practices are misleading — and effective — the California legislature has prohibited them.

The Plaintiff here, Antonio Hinojos, alleges that he was a victim of such a practice and bought merchandise from a Kohl’s Department Store that he would not have purchased had he not been misled by advertisements stating that the merchandise was marked down from a fictitious “original” or “regular” price. The only question before us on this appeal is whether Hino-jos alleges that he “lost money or property” and, therefore, has statutory standing under California law to sue Kohl’s to enforce California’s prohibition on this deceptive marketing practice.…

concurring in part and concurring in the result:

I am pleased to concur in the majority opinion, except that I concur only as to the result of Part III, which denies Kohl’s’ request to certify the state law standing requirements for review by the California *1110 Supreme Court. Although I agree that Kohl’s’ first removing the action from state to federal court, and then seeking to have the matter on appeal certified to the state court, raises suspicion as to Kohl’s’ motivations, on this record and without providing an opportunity to Kohl’s to respond, it is somewhat unfair to conclude that Kohl’s had only a nefarious motive. I would simply deny the request as untimely.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO S. HINOJOS, individually No. 11-55793 and on behalf of all others similarly situated, D.C. No. Plaintiff-Appellant, 2:10-cv-07590-

ODW-AGR

v.

KOHL’S CORPORATION , a Wisconsin OPINION corporation; KOHL’S DEPARTMENT STORES, INC., a Delaware corporation, Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Otis D. Wright, II, District Judge, Presiding

Argued and Submitted January 10, 2013—Pasadena, California

Filed May 21, 2013

Before: Stephen Reinhardt, Kim McLane Wardlaw, and Richard A. Paez, Circuit Judges.

Opinion by Judge Reinhardt; Concurrence by Judge Wardlaw HINOJOS V . KOHL’S CORP .

SUMMARY*

California Law / Standing

The panel reversed the district court’s dismissal of claims under California’s Unfair Competition Law, Fair Advertising Law, and Consumer Legal Remedies Act brought by a plaintiff in a putative class action against Kohl’s Department Stores alleging false advertising.

The panel applied the California Supreme Court’s holding in Kwikset Corp. v.…