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Akinmeji v. Jos. A. Bank Clothiers, Inc.

United States District Court, D. Maryland

July 31, 2019

OLUSOLA AKINMEJI, et al., Plaintiffs,
v.
JOS A. BANK CLOTHIERS, INC., Defendant.

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

         This is one more lawsuit against Jos. A. Bank Clothiers, Inc. (“JAB”) for allegedly deceptive promotional practices. To date, none of the preceding lawsuits has been successful.[1]

         In the 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.

         I. Factual and Procedural Background

         JAB is 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.

         Olusola 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 suits. Id.

         Raychel 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.

         Akinmeji 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.

         After 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, [2] 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.

         II. Legal Standard

         Under 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).

         In 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)).

         III. Analysis

         A. Applicable Interpretation of the UCL

         The 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 (1938)).

         Courts 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.

         B. Statute of Limitations

         Maryland's 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).

         In this 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).

         It 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 ...


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