EUGENE, Ore. (Legal Newsline) – An Oregon appeals court won’t let Albertson’s off the hook, keeping alive a class action lawsuit after the company had attempted to use the state’s “notice and cure” process.
The Oregon Court of Appeals wrote Jan. 13 that the grocery chain’s proposed remedy to class members wasn’t good enough to escape the litigation, which alleges the price on the “one” in a two-for-one deal on meat at Safeway was inflated.
The proposed cure, available thanks to Oregon’s unique “notice and cure” procedure, failed to account for statutory damages of $200 per violation under the state’s Unfair Trade Practices Act, the court ruled.
“(T)he recovery of statutory damages for a knowing or reckless violation of the UTPA is not a discretionary award,” Judge Erin Lagesen wrote.
“If the representative plaintiff proves that type of violation, class members are entitled to the greater of actual damages or $200. The legislature viewed that type of wrong—which is akin to the tort of deceit rather than negligence—to be one that must be corrected with statutory damages on a class-wide basis, just as ‘willful’ violations are compensated with statutory damages on an individual basis.”
After receiving notice of the claims in 2016, Albertson’s admitted it inflated regular prices of some items during promotions of four items. It said it would identify all purchases of those products and would offer coupons for the difference between what was paid and what customers should have paid.
Plaintiffs lawyers objected, and the trial judge agreed that in-store coupons were inadequate. Instead, it told Albertson’s to offer cash in the amount of the coupons.
Plaintiffs lawyers objected again in the pursuit of statutory damages, and their argument found a receptive audience at the appeals court.
“Whereas plaintiffs alleged a knowing or reckless violation of the UTPA in addition to a ‘willful’ one, Safeway’s cure was based solely on the count alleging the lesser wrong: a ‘willful’ violation, which, as noted, has been interpreted for UTPA purposes to mean negligence,” Lagesen wrote.