United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE
one more lawsuit against Jos. A. Bank Clothiers, Inc.
(“JAB”) for allegedly deceptive promotional
practices. To date, none of the preceding lawsuits has been
present case, Plaintiffs Olusola Akinmeji and Raychel
Jackson, on behalf of themselves and a putative nationwide
class and sub-classes, allege that JAB has violated several
Maryland and California unfair competition and consumer
protection statutes. Amended Complaint (“AC”),
ECF No. 45. Plaintiffs also assert a number of common law
torts. Id. The Court previously dismissed all of
Plaintiffs' claims, except the alleged violations of
California's Unfair Competition Law, Cal. Bus. &
Prof. Code § 17200, et seq. JAB now moves for
summary judgment as to Plaintiffs' California Unfair
Competition Law claims. ECF No. 99. For the reasons that
follow, the Court GRANTS JAB's Motion.
Factual and Procedural Background
a clothing retailer chain that has made sales pitches to
consumers to the effect that, if they purchase one item-such
as a suit, sport coat, or dress shirt-at a
“regular” price, they will also receive one or
more additional items for “free.” Plaintiffs
allege that JAB has misrepresented and continues to
misrepresent the nature and amount of its price discounts by
offering misleading dollar and percentage discounts off its
“regular” prices. AC at ¶ 3. These
“free” apparel promotions and discount offers are
said to be false because the so-called “regular”
price is actually fabricated and inflated; consequently, at
best only a minimal percentage of consumers pay JAB's
“regular” prices for its apparel. Id.
Essentially, Plaintiffs contend that JAB is advertising
normal retail prices as temporary price reductions, which
gives consumers a false impression as to the value of
JAB's products and the bargains they believe they will
receive if they purchase the products. Id. at ¶
7. Plaintiffs allege they have suffered damages measured by
the difference between the temporary price reduction they
paid (which they believed was the normal retail price) and
the value of the suits actually received. They are now,
however, at the point where they must plead
cognizable damages as a result of JAB's
purported false misrepresentations.
Akinmeji is currently a resident of Evanston, Illinois.
Id. at ¶ 19. He alleges that on or around June
22, 2015, when he was a resident of Greenbelt, Maryland, he
viewed a JAB pop-up ad online that advertised a “buy
one suit at ‘regular' price get 3 suits free”
promotion. Id. On June 29, 2015, Akinmeji purchased
four suits from JAB's online store. Id. He paid
a total of $969.00 to JAB, $875.00 of which was for
merchandise, $54.90 in sales tax, and $40.00 in shipping
costs. Akinmeji Purchase Receipt, ECF No. 45-1. The receipt
from Akinmeji's purchase states that he paid $875.00 for
his first suit and $0.00 for his second, third, and fourth
Jackson is a resident of Galt, California. AC at ¶ 20.
In or around January 2014, she alleges she viewed a JAB
television commercial that advertised a “buy one suit
at ‘regular' and price get 3 suits free”
promotion. Id. On February 1, 2014, Jackson
purchased four suits from JAB's store in Stockton,
California. Id. JAB charged Jackson $995.00 for her
first suit and $0.00 for her second, third, and fourth suits.
Jackson Purchase Receipt, ECF No. 45-2. Both Akinmeji and
Jackson say they would not have purchased their suits from
JAB but for the “buy one, get three free”
promotion. AC at ¶¶ 19-20.
sued JAB on behalf of himself and a putative class of
Maryland residents who purchased apparel from JAB pursuant to
its advertising. Suit was originally filed in the Circuit
Court for Prince George's County, Maryland on January 25,
2017. ECF No. 2. After its registered agent received a copy
of the Complaint, on May 16, 2017, JAB timely removed the
case to this Court on the basis of diversity of citizenship
and the Class Action Fairness Act of 2005
(“CAFA”). ECF No. 1. On June 27, 2017, Akinmeji
amended his Complaint to add (a) Jackson as a co-Plaintiff,
(b) California statutory claims, (c) a putative nationwide
class of JAB consumers, and (d) a putative sub-class of
California residents who were JAB consumers. ECF No. 45.
initially challenging, then conceding, that this Court could
exercise personal jurisdiction over it, JAB moved to dismiss
Plaintiffs' Amended Complaint for failure to state a
claim. ECF Nos. 49, 76. At the end of a hearing on JAB's
Motion on July 17, 2018, the Court orally dismissed all the
Counts in Plaintiffs' Amended Complaint,  except for three
Counts alleging that JAB violated California's Unfair
Competition Law (“UCL”). Cal. Bus. & Prof.
Code § 17200, et seq. ECF No. 94. In short,
Akinmeji was dismissed from the case entirely and only
Jackson, the California resident, remained as Plaintiff. The
Court then ordered Jackson to submit preliminary damages
calculations on behalf of herself and the putative California
sub-class. Id. After Jackson outlined her
preliminary damages calculations by way of Initial
Disclosures, JAB moved for summary judgment on the remaining
California statutory claims. ECF No. 99. Jackson filed an
Opposition, ECF No. 104, and JAB filed its Reply. ECF No.
105. The Court then heard further oral argument on JAB's
Motion. ECF No. 108.
Rule 56(a), “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). This does not mean,
however, that “some alleged factual dispute between the
parties” necessarily defeats the motion for summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986) (emphasis in original). Rather, “the
requirement is that there be no genuine issue of material
fact.” Id. (emphasis in original).
reviewing a motion for summary judgment, the court views the
facts, and all reasonable inferences that may be drawn from
them, in the light most favorable to the non-moving party.
See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986); Lee v. Town of
Seaboard, 863 F.3d 323, 327 (4th Cir. 2017). The court
must also “refrain from ‘weigh[ing] the evidence
or mak[ing] credibility determinations'” when
evaluating motions for summary judgment. Lee, 863
F.3d at 327 (quoting Jacobs v. N.C. Admin. Office of the
Courts, 780 F.3d 562, 568-69 (4th Cir. 2015)).
Applicable Interpretation of the UCL
only remaining Plaintiff, Jackson, is a citizen of
California, who alleges violations of California law against
a Defendant incorporated in Delaware with its principal place
of business in California. The case is in federal court on
the basis of the diversity of citizenship of the parties. As
such, the Court applies the relevant substantive state law to
reach its decision. See Zimmerman v. Novartis Pharm.
Corp., 889 F.Supp.2d 757, 761 (D. Md. 2012) (citing
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79
in this district have directly applied California courts'
interpretations of the UCL when adjudicating alleged
California UCL violations on behalf of a purported class.
See, e.g., Mason v. Machine Zone, Inc., 140
F.Supp.3d 457, 464 (D. Md. 2015); Beyond Sys. Inc. v.
Kraft Foods, Inc., 972 F.Supp.2d 748, 768-69 (D. Md.
2013). This Court will do the same.
Statute of Limitations
general statute of limitations for civil claims is three
years. See Md. Code Ann., Cts. & Jud. Proc.
§ 5-101. The UCL has a four-year limitations period.
See Cal. Bus. & Prof. Code § 17208. If a
federal district court sitting in a diversity case is dealing
with a question of law that is procedural in nature, the
forum state's law applies, but if the question of law is
substantive, the law of the state where the wrong occurred
applies. Sokolowski v. Flanzer, 769 F.2d 975, 978
(4th Cir. 1985) (applying Maryland law).
choice of law context, Maryland courts almost universally
view issues pertaining to the statute of limitations as
procedural, not substantive. Turner v. Yamaha Motor
Corp., U.S.A., 591 A.2d 886, 887 (Md. Ct. Spec. App.
1991); Doughty v. Prettyman, 148 A.2d 438, 440 (Md.
1959). The only exception to this rule under Maryland law is
when the expiration of the statute of limitations period
contained in the law of a forum state would terminate a
plaintiff's right to maintain an action initiated
pursuant to a foreign statute. Turner, 591 A.2d at
888. In such cases, Maryland courts apply the statute of
limitations period of the foreign state's law. See
Id. In that case, the statute of limitations is deemed
to be substantive. In order for the statute of limitations
for a law to be considered “substantive, ” the
law must (a) contain a specific statute of limitations; and
(b) create a new liability that does not exist at common law.
See Slate v. Zitomer, 275 Md. 534, 542 (1975).
appears that the UCL created new liabilities that did not
exist at common law. Generally, liabilities regarding unfair
competition and misleading business practice arose to protect
competitors, not consumers. See § 5:9. Common
law false advertising, 2 Callmann on Unfair Comp., Tr. &
Mono. § 5:9 (4th Ed.) (“The common law never
developed a robust false advertising tort, ”); see
also Kwikset Corp. v. Superior Court, 246 P.3d 877, 883
(Cal. 2011) (stating that the purpose of the UCL is to
“protect both consumers and competitors by promoting
fair competition in commercial markets for goods and
services”) (internal citations and quotation marks
omitted); Barquis v. Merchants Collection Assn., 7
Cal.3d 94, 109 (Cal. 1972) (“[T]he Legislature, by
adopting [the precursor to the UCL], broadened the scope of
legal protection against wrongful business practices
generally, and in so doing extended to the entire ...