SEATTLE (Legal Newsline) – It will be up to the U.S. Court of Appeals for the Ninth Circuit to determine if a class action lawsuit hoping to represent shoppers unhappy with their bargains at The Children’s Place will be heard in open court.
Seattle federal judge James Robart on Feb. 26 certified an order he entered months earlier that sent the case to arbitration, against the wishes of class action lawyers. The 15-page order allows lawyers at Hattis & Lukacs to make their case to the Ninth Circuit.
They studied prices on the chain’s website beginning in 2014. They say they have time-stamped screenshots of more than six million daily offerings for more than 53,000 products.
Their research “shows that The Children’s Place’s advertised website-wide ‘sale’ events and advertised percentage-off and dollar discounts were false, and that its list prices (i.e., reference prices) from which the discounts were calculated were false and inflated,” the lawsuit says.
But the company’s My Place Rewards Program, in which plaintiff Elaine Dougan enrolled in 2018, contains an arbitration clause and class action waiver.
“TCP contends that all six issues identified by Ms. Dougan for appeal are collateral because no question is individually capable of determining whether Ms. Dougan had constructive notice of the arbitration provision,” Robart wrote.
“But Ms. Dougan raises questions that go to whether the in-store signs, the emails she received, and TCP’s brochures should be viewed as providing constructive notice.
“The Ninth Circuit need only agree with Ms. Dougan on one legal issue for each form of constructive notice identified by this court — the in-store signs and the emails sent to Ms. Dougan — for Ms. Dougan’s appeal to be successful. While no single question may control, the court sees no reason why interlocutory appeal should be barred when there are multiple ways the Ninth Circuit could reverse this court’s order should it agree with Ms. Dougan on some of the questions she seeks to raise on appeal.”
Dougan seeks to become the lead plaintiff of a class action or go forward as a private attorney general under Washington State law.