Montes v. SPARC Group LLC

FILE                                                     THIS OPINION WAS FILED
                                                                       FOR RECORD AT 8 A.M. ON
                                                                              APRIL 2, 2026
       IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
          APRIL 2, 2026                                                  SARAH R. PENDLETON
                                                                        SUPREME COURT CLERK




              IN THE SUPREME COURT OF THE STATE OF WASHINGTON

         CERTIFICATION FROM THE UNITED
         STATES COURT OF APPEALS FOR THE                No. 104162-4
         NINTH CIRCUIT IN
                                                        EN BANC
         SHAWNNA MONTES, on behalf of herself
         and all others similarly situated,             Filed: April 2, 2026

                      Plaintiff - Appellant,

                v.

         SPARC GROUP LLC,
                      Defendant - Appellee.


               GORDON MCCLOUD, J.—“Any person who is injured in his or her business

         or property” may sue to enforce the Washington Consumer Protection Act (CPA).

         RCW 19.86.090. Only economic losses count as injuries to “business or property”

         under the CPA—noneconomic losses, such as “personal injury, ‘mental distress,

         embarrassment, and inconvenience,’” do not count. Frias v. Asset Foreclosure

         Servs., Inc., 181 Wn.2d 412, 431, 334 P.3d 529 (2014) (quoting Panag v. Farmers

         Ins. Co. of Wash., 166 Wn.2d 27, 57, 204 P.3d 885 (2009)).
Montes v. SPARC Grp. LLC, No. 1041624

      The issue in this case is whether a consumer suffers an economic injury in

“her business or property” when she purchases—and obtains—the very product she

sought to obtain but does so because the seller misrepresented the product’s price

history. The question arises in this case because consumer Shawnna Montes alleges

that she purchased $6.00 leggings at their advertised $6.00 price; she obtained

leggings that conformed in all material respects to $6.00 leggings; she made the

purchase because the seller advertised that the leggings were on sale for $6.00 from

a regular price of $12.50; but in fact the leggings had rarely sold for $12.50.

      Without more, the answer to this question is no. A consumer does not suffer

an injury in “her business or property” when she purchases—and obtains and

keeps—the fungible product she sought to obtain but does so because the seller

misrepresented the product’s price history.

      A consumer could allege economic loss if, for example, the product she

received was objectively different from or less valuable than what was advertised.

Williams v. Lifestyle Lift Holding, Inc., 175 Wn. App. 62, 302 P.3d 523 (2013). But

Montes made no such allegation. She did not allege that the leggings she received

differed in any material, objective way from the leggings advertised. She did not

allege that the leggings were worth less than the $6 she paid for them. She did not

allege that she tried to return them for a refund after learning the truth about their



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Montes v. SPARC Grp. LLC, No. 1041624

price history. Instead, Montes received and retained the leggings she wanted at the

price she agreed to pay.

       Her allegations do show disappointed expectations. But disappointed

expectations do not support a CPA claim. At least as to fungible consumer goods

like leggings, the fact “that plaintiff may have been manipulated into purchasing the

items because she believed she was getting a bargain does not necessarily mean she

suffered economic harm.” Mulder v. Kohl’s Dep’t Stores, Inc., No 15-11377-FDS,

2016 WL 393215, at *6 (D. Mass. Feb. 1, 2016) (court order), aff’d, 865 F.3d 17

(1st Cir. 2017).

                           FACTS AND PROCEDURAL HISTORY

       I.     Plaintiff purchases falsely discounted product and files CPA lawsuit

       Aéropostale is a nationwide clothing retailer that sells its exclusive line of

branded clothing online and in brick-and-mortar stores. Excerpts of Rec. (ER) at 15-

52 (complaint). 1 Plaintiff Montes was a regular Aéropostale customer. Id. at 42, para.

84. On January 9, 2021, she visited Aéropostale’s website to shop and viewed the

product page for “Seriously Soft Heathered High-Rise Leggings.” The price of the

leggings was listed as $6.00. The struck-out price “$12.50” appeared directly to the

       1
         The facts in this section are taken from the complaint. Because the federal court
certified the question in this case in connection with a Fed. R. Civ. P. 12(b)(6) motion to
dismiss for failure to state a claim, we accept all facts alleged in the complaint as true.
Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 830, 355 P.3d 1100 (2015).

                                             3
Montes v. SPARC Grp. LLC, No. 1041624

right of that price. Based on these representations, Montes alleges that she

reasonably believed that the leggings were normally offered and sold for $12.50 and

that the “sale” price of $6.00 “represented a special bargain.” Id. at 43, para. 88. She

alleges that she also reasonably believed that the leggings “were thereby worth and

had a value of $12.50.” Id. Montes purchased the leggings based on these

representations. Id. at 43-44, para. 89. She drove to the local Aéropostale store to

pick them up. Id. at 44-45, para. 93.

      On September 15, 2022, Montes filed a putative class action complaint in the

Eastern District of Washington on behalf of herself and the members of the following

proposed class:

      All citizens of the State of Washington who, since September 16, 2016,
      purchased from the Aéropostale website one or more products which
      was advertised with a discount or “free” offer.

Id. at 45, para. 98 (boldface omitted).2 She alleged that Aéropostale violated the CPA

by engaging in a widespread “false discounting” scheme in which Aéropostale

“advertised perpetual or near perpetual website-wide and store-wide ‘sales’ and

percentage-off discounts—typically 50% to 70% off—from Aéropostale’s self-

created list prices for its products in order to trick its customers and the general

public into thinking that its products were ‘on sale.’” Id. at 16, para. 3. In fact, based




      2
          Montes does not allege that she purchased any items advertised with a “free” offer.

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Montes v. SPARC Grp. LLC, No. 1041624

on data collected during a yearslong investigation by plaintiff’s counsel,

“Aéropostale’s advertised former prices (i.e., the strike-through prices which

Aéropostale labeled on its website as the “REGULAR PRICE”) to which the

discounts were applied were false and inflated.” Id. at 40, para. 71. 3

       In conformity with that scheme and unbeknownst to Montes when she bought

the leggings, “Aéropostale had almost never offered the Leggings at the advertised

regular price of $12.50.” Id. at 44, para. 90. Instead, for the six-month period

immediately prior to the date Montes purchased the leggings, “Aéropostale offered

the Leggings on its website at the supposed regular price of $12.50 for only a single

day, on January 6, 2021.” Id. para. 91.

       Montes alleges that this “false discounting scheme” constitutes an unfair and

deceptive business practice and that it caused injury to her business or property in

three distinct ways. Id. at 49, para. 113.




       3
          Montes alleges that “[t]he percentage-off and other discounts were always false,”
yet she also acknowledges that at least some products (including the leggings Montes
purchased) were occasionally offered for sale at the reference price. ER at 40, para. 71.
Montes implicitly asks us to ignore the fact that products were occasionally offered for sale
at the reference price by further alleging that when Aéropostale offered a product at the list
price, “it did so in bad faith, solely for the purpose of ‘establishing’ its list price to attempt
to exculpate itself from legal liability for its illegal pricing scheme. It was Aéropostale’s
intent to sell few if any products at list price, and in fact Aéropostale sold no, or practically
no, products at list price.” Id. para. 72.


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Montes v. SPARC Grp. LLC, No. 1041624

      First, Montes alleges that she and the class suffered injury because “they

would not have purchased the items at the prices they paid had they known the items

had not been regularly offered at the higher list price” (the “purchase price” theory).

Id. para. 114. Second, Montes makes the somewhat duplicative allegation that she

and the class suffered injury because they “did not enjoy the actual discounts

Aéropostale represented and promised them.” Id. Instead, “the items did not

normally sell for, and were not actually worth, the fictitious and invented ‘regular

price’ that Aéropostale listed on its website.” Id. Montes refers to this as the “benefit

of the bargain” theory.

      Third, Montes alleges that she and the class suffered injury because the

deceptive pricing scheme inflated demand, which in turn inflated prices: “they paid

a price premium due to illegitimately inflated demand resulting from Aéropostale’s

deceptive pricing scheme.” Id. She alleges that “[b]ut for the false advertising

scheme, Aéropostale would have had to charge less money for its products in order

to enjoy the same level of demand for its products.” Id.

      Montes sought actual and treble damages in an amount to be determined at

trial, along with attorney fees and costs. Id. at 50. She did not seek injunctive relief.

Id.




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Montes v. SPARC Grp. LLC, No. 1041624

      II.    Proceedings in federal court

      Aéropostale moved to dismiss under Fed. R. Civ. P. 12(b)(6). For purposes of

the motion to dismiss, Aéropostale acknowledged that the court could assume that

the complaint sufficiently alleged the deceptive acts and causation elements of a

CPA claim and that “injury is the sole issue before the Court.” Id. at 9 (order).

      The district court granted Aéropostale’s motion and dismissed the complaint

with prejudice. Id. at 4-11 (order). The court stated, “Washington cases that find

injury in false advertising are for goods and services that were different and/or worth

less than what was advertised.” Id. at 8-9 (citing Williams, 175 Wn. App. 62).

According to the district court, “while Plaintiff alleges her money was diminished

to the extent that she paid $6 for the leggings, Plaintiff only alleges that the leggings

were not worth the listing price, but she does not allege that the leggings were not

worth the price she paid.” Id. at 9 (citing complaint, para. 94). Because Montes did

not claim that she “did not receive the value that she paid for,” the district court

concluded that Montes failed to allege an injury. Id. at 9-10.

      Montes appealed. The Ninth Circuit Court of Appeals determined that

Washington case law was not clear about whether Montes alleged an injury to

“business or property” as required to state a CPA claim. Ord. Certifying Question to

Wash. Sup. Ct. at 3 (May 9, 2025). The court certified to us the following question:




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Montes v. SPARC Grp. LLC, No. 1041624

           When a seller advertises a product’s price, coupled with a
           misrepresentation about the product’s discounted price, comparative
           price, or price history, does a consumer who purchases the product
           because of the misrepresentation suffer an ‘injur[y] in his or her
           business or property’ under Wash. Rev. Code §§ 19.86.020 and
           19.86.090 if the consumer pays the advertised price?

Id. at 5 (alteration in original). In a footnote to the certified question, the Ninth

Circuit summarized each of Montes’ three theories of injury so this court could

“discuss the viability of these theories under Washington law in the false discounting

context to the extent it sees fit.” Id. at 5 n.2.

       We accepted review.4

                                  STANDARD OF REVIEW

       “Certified questions from federal court are questions of law that we review de

novo.” Carlsen v. Glob. Client Sols., LLC, 171 Wn.2d 486, 493, 256 P.3d 321

(2011). We consider the certified question “not in the abstract but based on the

certified record provided by the federal court.” Id.; see also RCW 2.60.030(2).

       The certified question in this case asks us to interpret a statute: the CPA. Our

objective in statutory interpretation is to “ascertain and carry out the Legislature’s



       4
        Ord. (June 5, 2025). We accepted amicus briefs supporting plaintiff’s position
from the Washington attorney general and the National Association of Consumer
Advocates. We accepted an amici brief supporting defendant’s position from National
Retail Federation, U.S. Chamber of Commerce, Retail Litigation Center Inc., and
Washington Retail Association.

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Montes v. SPARC Grp. LLC, No. 1041624

intent.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4

(2002). We consider a statute’s text, context, related provisions, amendments to the

provision, and the statutory scheme as a whole to discern the statute’s plain meaning

and the legislature’s intent. Ass’n of Wash. Spirits & Wine Distribs. v. Wash. State

Liquor Control Bd., 182 Wn.2d 342, 350, 340 P.3d 849 (2015) (citing Campbell &

Gwinn, 146 Wn.2d at 9-10).

                                      ANALYSIS

      I.     The CPA’s “injury” to “business or property” requirement means that
             a consumer must allege an objective economic loss, not subjective
             disappointment

      The CPA prohibits “unfair or deceptive acts or practices in the conduct of any

trade or commerce.” RCW 19.86.020. When first enacted in 1961, the CPA

permitted suit only by the attorney general. In 1970, the legislature “amended the

CPA to provide for a private right of action whereby individual citizens would be

encouraged to bring suit to enforce the CPA.” Hangman Ridge Training Stables, Inc.

v. Safeco Title Ins. Co., 105 Wn.2d 778, 784, 719 P.2d 531 (1986).

      The CPA’s private citizen suit provision permits “[a]ny person who is injured

in his or her business or property” by a violation of the act to bring a civil suit for

injunctive relief, actual damages, treble damages, and attorney fees and costs. RCW




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Montes v. SPARC Grp. LLC, No. 1041624

19.86.090. To prevail in a private CPA claim, the plaintiff must prove five “distinct”5

elements: (1) an unfair or deceptive act or practice (2) occurring in trade or

commerce, (3) affecting the public interest, (4) injury to a person’s business or

property, and (5) a causal link between the unfair or deceptive act and the injury.

Hangman Ridge, 105 Wn.2d at 780. By contrast, the attorney general “is not required

to prove causation or injury” when it prosecutes a CPA case. State v. Mandatory

Poster Agency, Inc., 199 Wn. App. 506, 518, 398 P.3d 1271 (2017); RCW

19.86.080.

       The purpose of the CPA is to “complement the body of federal law governing

restraints of trade, unfair competition and unfair, deceptive, and fraudulent acts or

practices in order to protect the public and foster fair and honest competition.” RCW

19.86.920. The legislature directed that when interpreting the CPA, courts should

look to “final decisions of the federal courts and final orders of the federal trade

commission interpreting the various federal statutes dealing with the same or similar

matters” for guidance. Id. The legislature also directed that the CPA “shall be

liberally construed that its beneficial purposes may be served.” Id.

       Although we interpret the CPA liberally, we are, of course, still bound by the

plain language of the statute. The legislature provided that only a person “injured in


   5
     Some of these elements do, of course, overlap, as we have recognized. E.g., Panag,
166 Wn.2d at 38 (while the five CPA requirements do not explicitly include standing,
standing is subsumed within both the public interest impact and the injury requirements).

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Montes v. SPARC Grp. LLC, No. 1041624

his or her business or property” can bring a private CPA claim. RCW 19.86.090

(emphasis added). The term “business or property” means injuries that are economic

in nature. Ambach v. French, 167 Wn.2d 167, 172, 216 P.3d 405 (2009) (citing

Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 318,

858 P.2d 1054 (1993)). Accordingly, the CPA excludes noneconomic injuries like

“personal injury, ‘mental distress, embarrassment, and inconvenience.’” Frias, 181

Wn.2d at 431 (quoting Panag, 166 Wn.2d at 57).

      To be sure, an injury “need not be great” to be cognizable. Hangman Ridge,

105 Wn.2d at 792. Injury to business or property may be minimal, difficult to

precisely quantify, or even temporary. Mason v. Mortg. Am., Inc., 114 Wn.2d 842,

854, 792 P.2d 142 (1990) (temporary wrongful loss of title is an injury to property);

Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 740, 733 P.2d 208 (1987) (loss of

business goodwill is an injury to business or property). But the injury must be an

economic loss. Ambach, 167 Wn.2d at 173.

      II.    Without more, a plaintiff who alleges that she purchased a fungible
             consumer product at its advertised price because of a misrepresentation
             about the product’s discounted price, comparative price, or price
             history, has not alleged that she suffered a cognizable injury to her
             business or property

      Montes alleges three legal theories to support her claim that she suffered an

injury to business or property: that she was wrongfully induced to make the purchase

but she got what she paid for, that she was wrongfully induced to make the purchase


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Montes v. SPARC Grp. LLC, No. 1041624

but she got what she paid for except for the satisfaction of knowing that she had

scored a bargain, and the somewhat contradictory legal theory that the price she paid

was artificially inflated by the wrongful inducement scheme. See supra at 5.

       As a preliminary matter, this certified question comes to us following a Fed.

R. Civ. P. 12(b)(6) motion to dismiss on the pleadings—so we accept the complaint’s

factual allegations as true. Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 830, 355

P.3d 1100 (2015); Cunningham v. Cornell Univ., 604 U.S. 693, 697 n.2, 145 S. Ct.

1020, 221 L. Ed. 2d 591 (2025).

       But we do not accept the complaint’s legal theories as true—indeed, we test

the sufficiency of the legal theories against the presumptively true factual allegations

on which they are supposed to rest. Trujillo, 183 Wn.2d at 830 (quoting FutureSelect

Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954, 963, 331 P.3d

29 (2014)).

       Montes’s basic factual allegation is that Aéropostale wrongfully induced her

to purchase leggings for $6.00 by misrepresenting that they typically sold for $12.50.

This allegation does not support any of her legal theories of injury. ER at 49, para.

113.

       Let’s start with Montes’s first two legal theories of injury, that is, that she got

what she paid for (a fungible pair of leggings that conformed in every way except

price history to what she paid for) but was injured nonetheless because she would


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Montes v. SPARC Grp. LLC, No. 1041624

not have paid at all except for the false advertising scheme. In a retail transaction,

the consumer gives the seller money and, in exchange, receives a product or service.

Certainly, the consumer’s money is “diminished” when they hand it over. Mason,

114 Wn.2d at 854. But in return for their money, the consumer receives something

of value. See Bezdek v. Vibram USA Inc., No. 12-10513-DPW, 2013 WL 639145, at

*5 (D. Mass. Feb. 20, 2013) (court order) (rejecting induced-purchase injury theory

because, while plaintiff “alleges she spent money on shoes she otherwise might not

have purchased[,] . . . she also received something of value”). Without more, the

mere fact of a retail transaction does not imply economic loss. Appellee SPARC

Grp. LLC’s Answering Br. at 21.

      Of course, it is possible for a retail transaction to cause actual economic loss.

But that occurs when the consumer receives a product or service that is objectively

different from or less valuable than the product she thought she was buying. For

example, in Williams, the court held that the plaintiff alleged a CPA injury to

business or property where defendants marketed a plastic surgery procedure as

“‘minimally invasive and not a “traditional” facelift,’” but then performed a surgery

on the plaintiff that was in reality an invasive, “traditional cosmetic surgery

procedure” that caused the precise side effects that the advertisements said the

procedure would avoid. 175 Wn. App. at 72.




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Montes v. SPARC Grp. LLC, No. 1041624

       Montes tries to fall within the scope of a Williams-type injury by alleging that

the leggings’ falsified price history made those leggings materially different from

and less valuable than the leggings she wanted. But that is a legal conclusion, not a

factual allegation—so we need not accept it as true. Instead, we must test whether

that legal theory is viable.

       It is not. First, Montes does not claim that the leggings were worth less than

the $6 she paid. ER at 13 (Montes’s opposition to motion to dismiss) (acknowledging

that the leggings “that Ms. Montes received had an actual value of between $5.00

and $6.00—the price range Aéropostale regularly offered them for sale” (citing

complaint, para. 94)).6 And she does not claim that the leggings she received differ

in any objective way (whether in quality, origin, composition, usefulness, or any

other metric) from the leggings she saw advertised. In other words, Aéropostale’s



   6
     At oral argument, Montes contended that her complaint alleged that the leggings were
not worth $6 as part of her price premium theory. But we do not read her complaint that
way. Instead, the complaint alleges:

       Plaintiff and the Class were also harmed because they paid a price premium
       due to illegitimately inflated demand resulting from Aéropostale’s deceptive
       pricing scheme. But for the false advertising scheme, Aéropostale would
       have had to charge less money for its products in order to enjoy the same
       level of demand for its products.

ER at 49, para. 114 (emphasis added). But an allegation that under different, hypothetical
conditions the seller would have had to charge less for the same product to enjoy the same
level of demand is distinct from an allegation that at the time Montes bought the leggings,
they were not worth $6.


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Montes v. SPARC Grp. LLC, No. 1041624

alleged misrepresentation did not relate to any objective quality of the leggings.

Instead, the misrepresentation related only to the price history of the product, which

Montes alleges was a claim about the “value” of the product. But a seller’s abstract

claim about value does not create an objective difference between two otherwise

identical fungible items. After all, as we have previously recognized, “the market

determines the fair market value.” Nelson v. Appleway Chevrolet, Inc., 160 Wn.2d

173, 180 n.5, 157 P.3d 847 (2007).

      Instead, Montes’ claimed injury is more accurately characterized as dashed

expectations. And expectations do not count as “business or property.” McLaughlin

v. Am. Tobacco Co., 522 F.3d 215, 228 (2d Cir. 2008), abrogated on other grounds

by Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639, 128 S. Ct. 2131, 170 L. Ed. 2d

1012 (2008); see also Br. of Amici Nat’l Retail Fed’n et al. at 10-11 (citing federal

civil RICO cases in accord with this conclusion).7

      This point is illustrated in the New Jersey Supreme Court’s decision in Robey

v. SPARC Group LLC, which is a particularly helpful example because the



      7
         The Racketeer Influenced and Corrupt Organizations Act (RICO) (like the CPA)
permits civil suits by “[a]ny person injured in his business or property by reason of a
violation of [RICO].” 18 U.S.C. § 1964(c). RICO’s “injured in his business or property”
language came from section 4 of the Clayton Act, 15 U.S.C. § 15(a), just like the CPA’s
language. Julian C. Dewell & D. Wayne Gittinger, Antitrust: The Washington Antitrust
Laws, 36 WASH. L. REV. & ST. B. J. 239, 251-55 (1961). We find federal cases interpreting
RICO particularly persuasive because of RCW 19.86.920’s directive to interpret the CPA
to consider “the various federal statutes dealing with the same or similar matters.”

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Montes v. SPARC Grp. LLC, No. 1041624

allegations (as well as the defendant and both parties’ counsel) were identical to

those in this case. 256 N.J. 541, 311 A.3d 463 (2024). In that case, plaintiffs alleged

that Aéropostale falsely advertised that clothing items were on sale and that

Aéropostale’s misrepresentations caused them to purchase those items. Plaintiffs

sued under New Jersey’s Consumer Fraud Act (CFA), which requires a plaintiff to

prove that an unlawful trade practice caused “any ascertainable loss of moneys or

property.” Id. at 555 (quoting N.J. STAT. ANN. 56:8-19).

      The New Jersey Supreme Court held that even though Aéropostale’s alleged

practices violated the state’s CFA, even though those practices violated a specific

state regulation barring false discount advertising, and even though New Jersey

consumer protection law recognizes the purchase price and benefit of the bargain

theories of loss, plaintiffs failed to establish that the violation caused an ascertainable

loss under either of those theories. Plaintiffs failed to allege that they suffered

economic loss under a purchase price theory (like Montes’s first theory of injury)

because they did not allege that the products were worthless or unsuitable for their

intended use or that it would require additional money to make them usable for their

intended purpose. Further, “[a]lthough plaintiffs allege that they never would have

purchased the items [but for the deceptive advertising], plaintiffs do not claim that

they attempted to return the items or that Aéropostale refused to accept such a

return.” Id. at 560. As to the plaintiffs’ benefit of the bargain theory (like Montes’s


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Montes v. SPARC Grp. LLC, No. 1041624

second theory of injury), the New Jersey court determined the plaintiffs had not

established loss under that theory because they “do not allege that the items

purchased were materially different from what was promised—wearable pants, t-

shirts, and a sweatshirt, as advertised. Nor have they alleged any dissatisfaction with

or defects in the items purchased.” Id.

      We find Robey’s reasoning persuasive and in accord with Washington law.

E.g., Williams, 175 Wn. App. 62; Mason, 114 Wn.2d at 854.

      In fact, we faced a similar issue in Young v. Toyota Motor Sales, U.S.A., 196

Wn.2d 310, 320, 472 P.3d 990 (2020). Like in this case, the consumer alleged that

he purchased a product (there, a Toyota Tacoma truck) based on the manufacturer’s

misrepresentation (there, that the truck had an outside temperature display on the

rearview mirror) and that the manufacturer’s misrepresentation violated the CPA.

But in that case, as in this one, the misrepresentation did not change the value of the

truck in any material, objective way. The trial court acknowledged that the consumer

had alleged, and in that case proved, a false and deceptive scheme that had the

capacity to deceive the public. But the trial court nevertheless concluded that the

consumer failed to allege a cognizable CPA injury to business or property because

the misrepresentation had no economic impact and did not cause him any injury.




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Montes v. SPARC Grp. LLC, No. 1041624

      We affirmed. We specifically upheld the trial court’s finding that “Young did

not prove Toyota’s acts caused him injury.” Id. While we focused on the causation

element of a CPA claim, our discussion in that case also implicated the overlapping

injury element (the element at issue here). And our discussion in that case makes

clear that a consumer who identifies a false and deceptive advertising scheme about

a matter that has no impact on the economic value of the fungible consumer good

fails to establish that the deceptive “acts caused [the consumer] injury.” Id.

      Most courts interpreting state consumer protection laws similar to the CPA

agree. See Appellee SPARC Grp. LLC’s Answering Br. at 26-33 (collecting cases

under New Jersey, New York, Massachusetts, Illinois, Missouri, and Nevada

consumer protection laws rejecting purchase price and/or benefit of the bargain

theories of injury in comparable situations).

      Simply put, disappointment is not a cognizable CPA injury. Frias, 181 Wn.2d

at 431. Absent an allegation that items were objectively different from or worth less

than the purchase price, “[t]he fact that plaintiff may have been manipulated into

purchasing the items because she believed she was getting a bargain does not

necessarily mean she suffered economic harm.” Mulder, 2016 WL 393215, at *6.

      Montes finally claims injury under the “price premium” or inflated demand

theory: the legal theory that Montes suffered injury because the deceptive pricing



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Montes v. SPARC Grp. LLC, No. 1041624

scheme inflated the market price of the leggings she bought. But her factual

allegations—which we must take as true—do not support this theory.

      As noted above at footnote 6 and page 14, Montes’s factual assertions varied

somewhat over the course of the litigation in this case. But as she herself stated in

her opposition to the motion to dismiss in district court, in support of her first two

theories of injury, the leggings had the monetary value that she paid for them: “the

Leggings that Ms. Montes received had an actual value of between $5.00 and

$6.00—the price range Aéropostale regularly offered them for sale.” ER at 13 (citing

complaint, para. 94).

      This factual concession defeats Montes’s legal “price premium” theory that

Aéropostale’s successful deceptive advertising scheme meant that the leggings were

really worth even less than $5 or $6.

                                    CONCLUSION

      Montes received the leggings she wanted at the price for which they were

offered. She certainly alleges that Aéropostale used a false and deceptive advertising

scheme that had the capacity to deceive the public. And she certainly identifies a

problem that might be addressed in a different legal claim. Mandatory Poster

Agency, Inc., 199 Wn. App. at 518; RCW 19.86.080 (attorney general need not prove

causation or injury when prosecuting CPA violation).


                                         19
Montes v. SPARC Grp. LLC, No. 1041624

      But the federal court did not ask us about a different legal claim. It asked

whether a consumer who alleges she purchased a product at its advertised price

because of a misrepresentation about the product’s discounted price, comparative

price, or price history has alleged that she suffered a cognizable CPA injury, that is,

an injury in her business or property. The answer is no. She has not alleged a

cognizable CPA injury in her business or property because she does not allege an

objective economic loss.




WE CONCUR:




                                                           Yu, J.P.T.




                                          20
Montes v. SPARC Group LLC




                                   No. 104162-4

      STEPHENS, C.J. (dissenting)—The certified question asks whether a

consumer who purchases a product because of a misrepresentation regarding the

product’s price history could plead a cognizable injury under the Consumer

Protection Act (CPA), ch. 19.86 RCW. The majority answers no, holding that such

a consumer suffers no injury so long as they receive goods with the same “objective

value” as those advertised. This reading departs from the long-standing liberal

construction of injury within the meaning of the CPA by limiting its reach solely to

quantifiable economic injuries. I would answer the question posed by the U.S. Court

of Appeals for the Ninth Circuit in the affirmative. Based on the facts alleged,

Montes could establish a cognizable injury to her business or property because she

would not have purchased the product—a pair of leggings—if Aéropostale had not

misrepresented its price history. Further, she could establish injury through a “price

premium” theory by proving that the deceptive or misleading price history

artificially increased demand for the leggings, causing an increase in the product’s

market price. The Ninth Circuit does not ask us whether Montes will prevail in her
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

CPA claim, specifically whether she can quantify and prove damages. The majority

imports a requirement for such proof into its injury analysis and in doing so narrows

the scope of cognizable injuries under the CPA. I respectfully dissent.

                                     ANALYSIS

      The legislature enacted the CPA to “‘protect the public and foster fair and

honest competition,’” instructing that the statute be “‘liberally construed [so] that its

beneficial purposes may be served.’” Panag v. Farmers Ins. Co. of Wash., 166

Wn.2d 27, 37, 204 P.3d 885 (2009) (quoting RCW 19.86.920). To achieve these

ends, the CPA prohibits deceptive acts or practices occurring in trade or commerce.

RCW 19.86.020. A person bringing a claim under the CPA must establish the

following elements: “‘(1) [an] unfair or deceptive act or practice; (2) occurring in

trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her

business or property; (5) causation.’” Klem v. Wash. Mut. Bank, 176 Wn.2d 771,

782, 295 P.3d 1179 (2013) (alteration in original) (quoting Hangman Ridge Training

Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986)).

There is no dispute in this case that Aéropostale’s advertising practices were unfair

and deceptive, that they occurred in trade or commerce, and that there is a public

interest impact. There is also no dispute that Montes would not have purchased the

leggings if Aéropostale had not misrepresented the product’s price history.


                                           2
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

       Once a plaintiff has established a CPA claim, they may then seek a range of

remedies. They may bring an action to “enjoin further violations, to recover the

actual damages sustained by [them], or both,” and they may also recover costs and

reasonable attorney fees. RCW 19.86.090. The CPA additionally authorizes treble

damages in certain circumstances, limited to a maximum of $25,000 per violation.

Id. In authorizing private actions for violations of the CPA, the legislature granted

courts broad discretion to fashion appropriate remedies for each violation. See, e.g.,

Allen v. Am. Land Rsch., 95 Wn.2d 841, 852, 631 P.2d 930 (1981) (recognizing that

the legislature intended “broadened private remedies under the Consumer Protection

Act” and affirming a superior court’s equitable authority to impose an appropriate

remedy). We have never required that a plaintiff prove monetary damages to prevail

in a CPA action and have repeatedly affirmed that “unquantifiable damages may

suffice.” Panag, 166 Wn.2d at 58. Recovery for unquantifiable damages is available

in part because the CPA authorizes a broad range of equitable remedies upon a

showing of injury. Id. (“Injury is distinct from damages.” (internal quotation marks

omitted)).

       We accepted review of this case by way of a certified question from the Ninth

Circuit.1 We review certified questions de novo and “‘consider the legal issues not

1
 The Ninth Circuit certified the following question: “When a seller advertises a product’s price,
coupled with a misrepresentation about the product’s discounted price, comparative price, or price
history, does a consumer who purchases the product because of the misrepresentation suffer an
                                                3
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

in the abstract but based on the certified record provided by the federal court.’”

Greenberg v. Amazon.com, Inc., 3 Wn.3d 434, 439, 553 P.3d 626 (2024) (quoting

Carlsen v. Glob. Client Sols., LLC, 171 Wn.2d 486, 493, 256 P.3d 321 (2011)). I

agree with the majority’s recitation of the factual and procedural history of this case

and do not repeat it here. As we have noted, “Context matters in answering these

certified questions.” Id. at 441. The context of this appeal stems from a district

court’s rejection of all of Montes’s theories of injury, resulting in an order granting

Aéropostale’s Fed. R. Civ. P. 12(b)(6) motion to dismiss. In this context, we accept

the complaint’s factual allegations as true and afford no deference to the district

court’s decision. Bolden-Hardge v. Off. of Cal. State Controller, 63 F.4th 1215,

1220 (9th Cir. 2023).

       I.      “Injury to business or property” encompasses a broader set of harms

               than pure “economic loss”

       The central question before us is whether an unfair or deceptive act that

induces an individual to buy an item that they otherwise would not have purchased

constitutes an injury to business or property. Answering this question does not




‘injur[y] in his or her business or property’ under Wash. Rev. Code §§ 19.86.020 and 19.86.090 if
the consumer pays the advertised price?” Ord. Certifying Question at 5 (May 9, 2025) (alteration
in original). The Ninth Circuit also summarized each of Montes’s theories of injury and invited
us to “discuss the viability of these theories under Washington law in the false discounting context
to the extent it sees fit.” Id. at 5 n.2.
                                                 4
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

require that we determine the value of the item that Montes ultimately received but

that we analyze whether Aéropostale’s misrepresentation diminished her business or

property interests. The majority holds that “the CPA excludes noneconomic injuries

like ‘personal injury, mental distress, embarrassment, and inconvenience.’”

Majority at 11 (internal quotation marks omitted) (quoting Frias v. Asset

Foreclosure Servs., Inc., 181 Wn.2d 412, 431, 334 P.3d 529 (2014)). I agree, insofar

as personal injury, mental distress, embarrassment, and inconvenience are not

injuries to business or property. However, it does not follow that the CPA precludes

recovery for all noneconomic injuries, as such injuries to business or property may

be noneconomic or unquantifiable. By announcing a blanket exclusion, the majority

departs from our long-standing approach to injury under the CPA and effectively

rewrites the phrase “injury to business or property” to require that a plaintiff

demonstrate “economic loss.”

      Our long-standing liberal construction of the CPA makes clear that the

legislature intended to define “injury” broadly. While certain categories of injury

fall outside the CPA’s scope, it is because they do not harm an individual’s business

or property, not because they are “minimal and temporary,” unquantifiable, or

strictly noneconomic. Frias, 181 Wn.2d at 431; see also Hangman Ridge, 105

Wn.2d at 792 (“The injury involved need not be great, but it must be established.”).

Moreover, because the CPA does not define “business or property,” we have

                                          5
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

recognized that its scope encompasses a broader set of harms than just monetary

losses. Mason v. Mortg. Am., Inc., 114 Wn.2d 842, 854, 792 P.2d 142 (1990) (“The

fact that the Act allows for injunctive relief bolsters the conclusion that injury

without specific monetary damages will suffice.”). The CPA provides recovery for

harm to both business and property, with the latter being “especially broad,”

including for instance, depriving an individual of the use and enjoyment of property

for even a short period. Stephens v. Omni Ins. Co., 138 Wn. App. 151, 180, 159 P.3d

10 (2007), aff’d sub nom., Panag, 166 Wn.2d 27; see also Klem, 176 Wn.2d at 795

(holding that the plaintiff suffered a cognizable injury when a defendant’s

unlawfully predated notarization deprived the plaintiff of seven days of property use

prior to likely foreclosure because the defendant eliminated the possible chance for

the plaintiff to close a sale with a private buyer during that period).

      Certainly, pecuniary harm to business or property is a common example of a

CPA injury, but economic losses are merely sufficient—not necessary—conditions

to pleading a cognizable injury. Recognizing that CPA injury encompasses more

than monetary loss reflects the fact that the statute uses the term “injury” and not

“damages.”     Mason, 114 Wn.2d at 854.            Accordingly, we have held that

“nonquantifiable injuries, such as loss of goodwill[,] would suffice” under the fourth

element even though a claimant may not be able to demonstrate actual damages.

Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 740, 733 P.2d 208 (1987); see also

                                           6
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 316, 858

P.2d 1054 (1993) (holding that impairment of an individual’s professional reputation

represents a cognizable injury under the CPA). By requiring proof of “economic

losses,” the majority effectively creates an additional element that would preclude

Montes’s cause of action. Relevant here, an economic injury requirement overlooks

that diminution of a plaintiff’s business or property interest may be difficult to

quantify or may be purely nonmonetary.

      In adding a requirement for proof of economic injury, the majority’s analysis

misfocuses on the perceived intrinsic value of the product that Montes ultimately

received as the measure of any injury. The majority reasons that Montes was not

harmed because “she obtained leggings that conformed in all material respects to

$6.00 leggings.” Majority at 2. Thus, because Montes failed to allege that “the

product she received was objectively different from or less valuable than what was

advertised,” she merely suffered “disappointed expectations.” Id. at 2-3. This

characterization misunderstands the injury Montes suffered. It is true that the CPA

excludes disappointed expectations as a cognizable injury, but it does so for the same

reason it excludes personal injury, mental distress, embarrassment, and mere

inconvenience. These categories of injuries are personal, and they fail to allege any

diminution of business or property interests. Fisons, 122 Wn.2d at 318 (“[H]ad our

Legislature intended to include actions for personal injury within the coverage of the

                                          7
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

CPA, it would have used a less restrictive phrase than injured in his or her ‘business

or property’.”). Such injuries are not excluded because they are noneconomic or

difficult to quantify—indeed, personal injuries are often readily capable of monetary

valuation. Instead, the CPA’s purpose is to provide redress for injury to business or

property, not to “give personal injury claimants ‘backdoor access’ to compensation

from a tortfeasor.” Peoples v. United Servs. Auto. Ass’n, 194 Wn.2d 771, 780, 452

P.3d 1218 (2019) (quoting Ambach v. French, 167 Wn.2d 167, 179 n.6, 216 P.3d

405 (2009)); see also Frias, 181 Wn.2d at 432 (denying recovery for “emotional

distress and associated physical symptoms” but permitting recovery under the CPA

for other “sufficient, but not necessary,” injuries such as a temporary loss of title).

The distinction between personal injury and injury to business or property does not

support denying recovery here.       Montes alleges that Aéropostale’s deceptive

advertising practices were the sole reason she purchased the leggings and that

Aéropostale’s practices artificially drove up the price of the leggings for all

consumers. As explained next, this constitutes injury to a property interest.

      II.    Montes alleges a cognizable injury because Aéropostale’s deceptive

             advertising practices diminished her property interest

      Montes advances three theories to demonstrate that she has suffered a

cognizable injury to her business or property interests. The certified question


                                          8
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

primarily asks whether the “purchase price” theory is cognizable under the CPA and

then proceeds to outline each of the plaintiff’s theories of injury so that we “may

discuss the viability of these theories under Washington law in the false discounting

context” as we see fit. Ord. Certifying Question at 5 n.2 (May 9, 2025). Like the

district court, I believe there is overlap among Montes’s theories and conclude that

she essentially “alleges two theories of injury: that she was misled into purchasing

something of value and that she incurred a price premium injury, i.e. charging a

higher price for products than it otherwise could have.” Excerpts of Rec. (ER) at 9

(Ord. Granting Mot. to Dismiss at 6). I therefore analyze the “benefit of the bargain”

theory and the “purchase price” theory together because they allege the same

underlying harm, and I would hold that Montes can state a CPA claim under these

theories.

      A. Unlawfully inducing a purchase can constitute an injury under the CPA

            whether described as a “benefit of the bargain” or “purchase price”

            theory

      Under her “purchase price” theory, Montes alleges that she “would not have

otherwise purchased [the leggings] but for [the defendant]’s misrepresentations.”

Pl.-Appellant’s Opening Br. at 24. Similarly, under the “benefit of the bargain”

theory, Montes alleges that she was injured because she did not receive leggings that


                                          9
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

had actually been discounted from $12.50 to $6.00. Montes argues that her loss

under the “benefit of the bargain” theory is “the difference between the item’s actual

value and what its value is represented to be.” Id. at 41 (underlining omitted). This,

however, more accurately reflects an assessment of the damages resulting from the

injury to her property interest. More precisely understood, her injury under both

theories is that she paid money she otherwise would not have because of a

representation about the product’s price history.

      Before today, we had never squarely examined the unlawful inducement

theories of injury that Montes presents, but the principle underlying them finds

support in our precedent. In Panag, we recognized that “‘[a] person whose property

is diminished by a payment of money wrongfully induced is injured in his

property.’” 166 Wn.2d at 64 (internal quotation marks omitted) (quoting Reiter v.

Sonotone Corp., 442 U.S. 330, 340, 99 S. Ct. 2326, 60 L. Ed. 2d 931 (1979)). The

plaintiff in Panag was unlawfully induced to pay money on an alleged debt, and, in

resolving that case, we did not need to decide whether the payment itself, regardless

of the validity of the debt, would also constitute an injury under the CPA. We

recognized, however, the potential viability of such a theory of injury. See, e.g.,

Blair v. Nw. Tr. Servs., Inc., 193 Wn. App. 18, 36, 372 P.3d 127 (2016) (collecting

injury cases and noting that “an ‘injury’ can be based on unlawful collection

practices even where there is no dispute as to the validity of the underlying debt”).

                                          10
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

       In Young v. Toyota Motor Sales, U.S.A., the plaintiff advanced an inducement

theory and we examined whether he proved the causal link between the defendant’s

affirmative misrepresentation that a truck included a temperature gauge and his

decision to purchase the truck. 196 Wn.2d 310, 320, 472 P.3d 990 (2020). Citing

Indoor Billboard/Washington, Inc. v. Integra Telecom of Washington, Inc., 162

Wn.2d 59, 83, 170 P.3d 10 (2007), we affirmed the principle that a plaintiff need not

show actual reliance on a misrepresentation to demonstrate causation. Young, 196

Wn.2d at 321. We nonetheless rejected the plaintiff’s CPA claim on its facts,

concluding that “Reliance was Young’s theory, and he failed to prove it.” Id. at 322.

Contrary to the majority’s characterization of our decision, 2 we did not reject any

unlawful inducement theory of injury, instead, holding that Young failed to show

that Toyota’s misrepresentation caused him to do anything differently. Id. at 321

(noting Young’s failure to establish a causal link between the misrepresentation and

his purchase decision “is fatal to [his] particular CPA claim”) This case highlights

the interplay between injury and causation; while a plaintiff must demonstrate each


2
  The majority characterizes the trial court in Young as finding no cognizable injury “because the
misrepresentation had no economic impact and did not cause him any injury.” Majority at 17. The
trial court, however, focused on inducement, not injury, and found that “Mr. Young failed to
demonstrate that Toyota’s mistake induced him to buy his vehicle.” Young v. Toyota Motor Sales,
U.S.A., 2018 WL 8805371, at *1 (Spokane County Super. Ct., Wash. Jan. 5, 2018). It also found
that his claim was “much more consistent with someone who learned that Toyota had made a
mistake and wanted to take advantage of it, than someone who relied upon that item in good faith,
and then did very little until Toyota actually admitted their error.” Young v. Toyota Motor Sales,
U.S.A., 2017 WL 11318725, at *14 (Spokane County Super. Ct., Wash. Nov. 1, 2017). In
affirming dismissal, our decision relied on these findings.
                                               11
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

of the required elements of a CPA claim, these elements “should not be read in

isolation so as to render absurd conclusions.” Ambach, 167 Wn.2d at 178.

       Here, in contrast to Young, we are not concerned with whether Montes has

proven her allegations or established causation. Taking the allegations in the

complaint as true, Montes would not have spent $6 on this pair of leggings if she

had known the product’s true price history.3 To view this as a pure causation

question would “render absurd conclusions” because it is Aéropostale’s affirmative

misrepresentation that led Montes to purchase the leggings, and it is the purchase

itself that constitutes a cognizable injury in these circumstances.                   Id.   Stated

differently, Montes’s property interest was diminished because Aéropostale’s

misrepresentation prevented her from, for instance, spending $6 elsewhere on

another item; she is not required to prove that the leggings are not worth $6.4 By



3
  The Ninth Circuit presumes the truth of this factual allegation in its certified question, asking
whether “a consumer who purchases the product because of the misrepresentation suffer[s] an
‘injur[y] in his or her business or property.’” Ord. Certifying Question at 5 (second alteration in
original). The district court similarly accepted all allegations of material fact as true when it
granted Aéropostale’s motion to dismiss. ER at 5 (Ord. Granting Mot. to Dismiss at 2). However,
after accepting that Montes would not have purchased the leggings absent Aéropostale’s
misrepresentation, the district court incorrectly concluded that Montes’s claim fails as a matter of
law because she did not allege that the leggings “were different and/or less than what was
advertised.” Id. at 8 (Ord. Granting Mot. to Dismiss at 5-6). The majority makes the same mistake.
As explained in the main text, this is not an element of proof under the CPA.
4
  While not squarely presented in this case, Aéropostale’s deceptive advertising practices could
also risk distorting the competitive marketplace for leggings. If competitors sell $6 leggings
without deceptively marking them as discounted, it is possible that such competitors are at a
competitive disadvantage and preventing Aéropostale’s practices accords with the CPA’s purpose
to “foster fair and honest competition.” RCW 19.86.920.
                                                12
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

concluding that Montes alleges nothing more than “dashed expectations,” the

majority’s interpretation of the CPA would allow deceptive or misleading

advertising to induce consumers to part with their money so long as the goods

generally function as advertised. This erroneously narrows the CPA.

      Faced with a similar issue of first impression, the Oregon Supreme Court

recently analyzed its Unfair Trade Practices Act and recognized that “[a]t its essence,

the purchase price theory is that one person has been induced by another person’s

unlawful activities to pay money for something that the first person would not

otherwise have bought.” Clark v. Eddie Bauer LLC, 371 Or. 177, 194, 532 P.3d 880

(2023). Under this theory, it is irrelevant whether the leggings Montes received were

actually “worth less than the purchase price.” Majority at 18. Much like the plaintiff

in Oregon, Montes alleged that she received “merchandise that had never been

offered for sale at those prices” and that because of the representations regarding

price history, she “paid money to defendants for articles of clothing that she would

not have bought had she known their true price history.” Clark, 371 Or. at 194. The

Oregon Supreme Court’s reasoning is persuasive because it accords with our

approach to the CPA’s injury prong. Specifically, it centers the injury analysis on

the diminution of a property interest—deceptively inducing a person to spend money

they would not otherwise have spent—not on a putative objective value of the

purchased item. I would hold that Montes’s “purchase price” and “benefit of the

                                          13
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

bargain” theories of injury state viable claims under the CPA. I turn next to

consideration of her “price premium” theory of injury.

      B. Artificially inflating demand for an item by misrepresenting its price

         history can constitute an injury under the CPA

      In addition to the “benefit of the bargain” and “purchase price” theories,

Montes alleges a “price premium” theory of injury. Under this theory, Montes

alleges that she paid a premium for the leggings because Aéropostale’s

misrepresentations about its price history artificially increased demand for the

leggings, leading to an increase in the product’s market price. Aéropostale’s market

manipulation, she alleges, effectively led every consumer, including Montes, to pay

a higher price than they otherwise would have for the leggings.

      Accepting the factual allegations as true, Montes’s “price premium” theory is

a viable theory of injury under the CPA. We are not asked to decide whether

Aéropostale’s misrepresentations in fact shifted the demand curve and increased the

price Montes and other consumers paid for these leggings. We have long recognized

that if a plaintiff’s purchasing power is diminished because of the defendant’s unfair

or deceptive act, this can constitute a cognizable injury under the CPA. Panag, 166

Wn.2d at 57; Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 837, 355 P.3d 1100

(2015) (holding that the plaintiff suffered a cognizable injury because they incurred


                                          14
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

“investigation expenses and other costs associated with dispelling the uncertainty”

brought upon by the defendant’s deceptive acts); Greenberg, 3 Wn.3d at 461

(finding that plaintiffs “suffered monetary harm . . . [because] [t]hey each paid higher

prices on consumer goods and food items than they otherwise would have” absent

Amazon’s unlawful pricing practices). The amicus brief filed by the Washington

attorney general notes, “Advertised reference prices are not emotional or subjective;

they are quintessentially objective market signals.” Br. of Amicus Curiae Att’y Gen.

of State of Wash. at 11. This aligns with our understanding of injuries to business

or property under the CPA, which encompass Montes’s allegation that Aéropostale’s

deceptive market signals caused an increase in demand and a commensurate increase

in price. If Montes can demonstrate that Aéropostale’s practices inflated the price

she paid for these leggings, then she has suffered a cognizable injury under the CPA.

I would recognize the validity of her “price premium” theory.

                                      CONCLUSION

      The majority concludes that Montes “received the leggings she wanted at the

price for which they were offered,” majority at 19, effectively holding that Montes

got a fair deal and would have purchased the leggings regardless of Aéropostale’s

misrepresentation. I believe that such a “dashed expectations” characterization of

Montes’s claims reflects an overly narrow view of “injury” under the CPA and


                                          15
Montes v. SPARC Group LLC, No. 104162-4
(Stephens, C.J., dissenting)

suggests factual findings that are not ours to make, and the rule that follows the

majority’s holding risks excluding all noneconomic or unquantifiable injuries to

business or property from the CPA’s expansive remedy provisions. Such a result

departs from our long-standing approach to analyzing injury under the CPA. I would

hold that Montes has pleaded a cognizable injury to her property interests under both

her “benefit of the bargain” and “purchase price” theories as well as her “price

premium” theory. Accordingly, I respectfully dissent.




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                                          16