Monika Taylor v. Nike

Case 3:16-cv-00661-MO
Document 1
Filed 04/18/16
J. Matthew Donohue, OSB NO. 067542

MattDonohue@MarkowitzHerbold.com
Shannon Armstrong, OSB No. 060113
ShannonArmstrong@MarkowitzHerbold.com
MARKOWITZ HERBOLD PC
1211 SW Fifth, Suite 3000
Portland, OR 97204
Telephone: (503) 295-3085
Fax: (503) 323-9105
Jeffrey M. Ostrow, Florida Bar No. 121452
ostrow@kolawyers.com
Scott A. Edelsberg, Florida Bar No. 0100537
edelsberg@kolawyers.com
KOPELOWITZ OSTROW P.A.
200 SW 1st Avenue, 12th Floor
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
Fax: (954) 525-4300
(pro hac vice to be applied for)
Hassan A. Zavareei, California Bar No. 181547
hzavareei@tzlegal.com
Jeffrey D. Kaliel, California Bar No. 238293
TYCKO & ZAVAREEI LLP
1828 L Street, NW, Suite 1000
Washington, DC 20036
Telephone: (202) 973-0900
Fax: (202) 973-0950
Wayne S. Kreger, California Bar No. 154759
wayne@kregerlaw.com
LAW OFFICES OF WAYNE S. KREGER, PA
100 Wilshire Blvd., Suite 940
Santa Monica, CA 90401
Telephone: (310) 917-1083
Fax: (310) 917-1001
Attorneys for Plaintiff
Page 1 CLASS ACTION ALLEGATION COMPLAINT
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UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
PORTLAND DIVISION
MONIKA TAYLOR, individually and on
behalf of all others similarly situated,
Case No.: ___________
Plaintiff,
CLASS ACTION ALLEGATION

COMPLAINT
v.
Unfair Or Deceptive Trade Practices Action

(28 U.S.C. 1332)
NIKE, INC.,
Defendant.
DEMAND FOR JURY TRIAL
CLASS ACTION COMPLAINT

Plaintiff, MONIKA TAYLOR (Plaintiff), on behalf of herself and all others similarly
situated, alleges the following based upon personal knowledge as to allegations regarding Plaintiff
and on information and belief as to other allegations:
INTRODUCTION
1.
This is a civil class action seeking monetary damages, restitution, injunctive and
declaratory relief from Defendant, Nike, Inc. (Nike), arising from its deceptive and misleading
labeling and marketing of merchandise it sells at its company-owned Nike Outlet stores (Nike
Outlets).
2.
During the Class Period (defined below), Nike misrepresented the existence, nature, and
amount of price discounts on products sold in Nike Outlet stores (collectively Outlet Products)
by purporting to offer discounts off of a false Suggested Retail Price, which the Plaintiff
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understood to be short for the commonly used retail phrase: Manufacturers Suggested Retail
Price (MSRP).
3.
As used throughout this complaint, MSRP shall mean the highest price indicated on the
price tag. As addressed in detail below, Plaintiff and reasonable consumers understand the
MSRP to be the former, original, or regular price of the item on which is appears. The term
Outlet Products expressly excludes products sold at Nike Outlets that advertised a MSRP that
was a prevailing market retail price within the three months preceding.
4.
Specifically, Nike advertisedon the price tags of its Nike Outlet ProductsMSRPs and
then advertised, on the same price tags, a price termed OUR PRICE, which supposedly
represented a steep discount off of the MSRP. The Outlet Products tags bearing the MSRP and
false discounted price constitute advertisements under California law. Indeed, the coupling of
the MSRP with the so-called discounted price makes a statement to the public as to the existence
of a price discount and promotes the sale of Outlet Products on that basis.
5.
However, the MSRPs used by Nike did not convey accurate information about the
products, and were instead a sham designed to mislead and deceive consumers. The MSRPs did
not represent a bona fide price at which the Nike Outlet Products were previously sold. Nor was
the advertised MSRP a prevailing market price within three months immediately preceding the
publication of the advertised former prices, as required by California law.
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6.
Nike led consumers to believe that its MSRPs represented authentic price information
about the products they purchased. In reality, Nike manufactures the Nike Outlet Products for
exclusive sale at its Nike Outlets and always sells these goods for the advertised OUR PRICE,
never the MSRP. Accordingly, such items were never sold, never suggested to be sold, or even
intended to be soldat the MSRP listed on its price tags. Nike Outlet Products are only sold
for the lower OUR PRICE.
7.
Further, Nike intentionally uses the words Suggested and Our on its price tags to
mislead consumers into believing that Nike the manufacturer and the seller of the product are
somehow different and distinct from one another. When Suggested is used directly above the
pronoun Our, it leads consumers to believe that a third party is suggesting that the items be
sold at a certain price. Consumers understand Our to be Nike. Therefore, in this context they
do not understand the suggesting party to also be Nike. Nike uses these carefully chosen words
so that consumers will think that the party who sells the product (here, Nike) and suggested its
price (still, Nike) are not the same, thereby duping customers into thinking they are getting a
discount off the price a third party manufacturer determined its worth or the price at which it
should be sold.
8.
The nomenclature and the MSRPs listed on Nike Outlet Products are fictional creations
designed by Nike to portray false price information, create an illusion that the manufacturer and
the seller are not the same parties, enable phantom markdowns and increase sales.
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9.
Nike knows consumers are bargain-hunters, and knows consumers are excited by the
prospect of a bargain. The juxtaposition of an artificial MSRP and an OUR PRICE on Nike
Outlet Product price tags is intentionally designed to convey to consumers that the consumer is
receiving a bargain or a deal on the producton sales terms more preferential or more optimal
to the consumer than those offered outside the context of the outlet store. But there is no bargain
to be had. The MSRP on Nike Outlet Products exists only to create the illusion of a bargain and
the words Suggested and Our are used only to deceive consumers into making purchases
they otherwise would not have made because they perceive that Nike is offering a product for
sale at a lower price than what the products manufacturer suggested it should be sold.
10.
In addition, the advertised MSRPs were not prevailing market retail prices within three
months immediately preceding the publication of the advertised prices, as required by California
law. Business & Professions Code 17501, entitled Value determinations; Former price
advertisements, states:
For the purpose of this article the worth or value of anything advertised is the
prevailing market price, wholesale if the offer is at wholesale, retail if the offer at
retail, at the time of publication of such advertisement in the locality wherein the
advertisement is published.
No price shall be advertised as a former price of any advertised thing, unless the
alleged former price was the prevailing market price as above defined within three
months next immediately preceding the publication of the advertisement or unless
the date when the alleged former price did prevail is clearly, exactly and
conspicuously stated in the advertisement.
(emphasis added).
11.
The Federal Trade Commission (FTC) explicitly describes this fictitious pricing
scheme employed at Nike Outlets as deceptive:
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(a)
Many members of the purchasing public believe that a manufacturers list
price, or suggested retail price, is the price at which an article is generally sold.
Therefore, if a reduction from this price is advertised, many people will believe that
they are being offered a genuine bargain. To the extent that list or suggested retail
prices do not in fact correspond to prices at which a substantial number of sales of
the article in question are made, the advertisement of a reduction may mislead the
consumer. A former price is not necessarily fictitious merely because no sales at
the advertised price were made. The advertiser should be especially careful,
however, in such a case, that the price is one at which the product was openly and
actively offered for sale, for a reasonably substantial period of time, in the recent,
regular course of her business, honestly and in good faith and, of course, not for
the purpose of establishing a fictitious higher price on which a deceptive
comparison might be based.
(b)
It bears repeating that the manufacturer, distributor or retailer must in every
case act honestly and in good faith in advertising a list price, and not with the
intention of establishing a basis, or creating an instrumentality, for a deceptive
comparison in any local or other trade area. For instance, a manufacturer may not
affix price tickets containing inflated prices as an accommodation to particular
retailers who intend to use such prices as the basis for advertising fictitious price
reductions.
16 C.F.R. 233.3.
12.
The Nike Outlet pricing scheme was prominently advertised on the price tags of all Nike
Outlet Products in California. To illustrate, below is an example of the merchandise price tags
that Plaintiff relied on:
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13.
Upon information and belief, thousands of California consumers were victims of Nikes
deceptive, misleading and unlawful false pricing scheme and thousands more, including Plaintiff,
will be deceived if the practices continue.
14.
Nike fraudulently concealed from, and intentionally failed to disclose to, Plaintiff and
others similarly situated, the truth about its MSRPs and advertised price discounts from those
supposedly suggested prices.
15.
Nikes false representations of MSRPs and false representations of savings, discounts
and bargains are objectively material to a reasonable consumer.
16.
Plaintiff relied upon such false representations of MSRPs and discounts when
purchasing apparel from a Nike Outlet in California. Plaintiff would not have made such
purchase, or would not have paid the amount she did, but for Nikes false representations of the
MSRP of the items they purchased, especially when juxtaposed with the supposedly discounted
OUR PRICE at which Nike offered the items for sale.
17.
Plaintiff, in short, believed the truth of the price tags attached to the products she
purchased at a Nike Outlet, which expressly told her that she as getting a terrific bargain on her
purchases. In reality, she was not getting a bargain at all.
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18.
Through its false and deceptive marketing, advertising and pricing scheme, Nike violated
(and continues to violate) California law. Specifically, Nike violated (and continues to violate)
Californias Business & Professions Code 17200, et seq. (the UCL), Californias Business
and Professions Code 17500, et seq. (the FAL), the California Consumers Legal Remedies
Act, Civil Code 1750, et seq. (the CLRA), and the Federal Trade Commission Act
(FTCA), which prohibits unfair or deceptive acts or practices in or affecting commerce and
specifically prohibits false advertisements. 15 U.S.C. 52(a) and 15 U.S.C. 45(a)(1).
19.
Plaintiff, individually and on behalf of all others similarly situated, seeks restitution and
other equitable remedies, including an injunction under the UCL, FAL and CLRA.
PARTIES
20.
Plaintiff, Monika Taylor, is an individual who is a citizen of the City of Orange, County
of Orange, California. In reliance on Defendants false and deceptive advertising, marketing and
pricing schemes, Ms. Taylor purchased seven Nike Outlet Products from the Nike Outlet located
in Orange, California on June 20, 2015, and as detailed herein, was damaged as a result thereof.
21.
Defendant Nike is a corporation duly organized and existing under the laws of the State
of Oregon, with its principal place at One Bowerman Drive, Beaverton, OR 97005. Defendant
operates 24 Nike Outlets in California.
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JURISDICTION AND VENUE

22.
This Court has original jurisdiction of this action under the Class Action Fairness Act of
2005. Pursuant to 28 U.S.C. 1332(d)(2) and (6), this Court has original jurisdiction because
the aggregate claims of the members of the putative Class exceed $5 million, exclusive of costs,
and at least one of the members of the proposed Class is a citizen of a different state than Nike.
23.
The District of Oregon has personal jurisdiction over Nike because Nike is a corporation
or other business entity with its principal place of business in this District.
24.
Venue is proper in this District pursuant to 28 U.S.C. 1391, because Nikes principal
place of business is found within this District, and a substantial part of the events giving rise to
Plaintiffs claims arose here, including the creation of the scheme alleged in this Complaint.
FACTUAL ALLEGATIONS
25.
Traditionally, retail outlet stores were located in remote areas and typically maintained an
inventory of defective and excess merchandise. Customers often flocked to these outlets in hopes
of finding steep discounts and bargains. See
http://www.forbes.com/sites/investopedia/2012/12/29/7-tips-for-outlet-mall-shopping/ (last
visited July 11, 2014).
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26.
However, in an effort to increase profits, major retailers such as Nike have, without
notice to consumers, begun using company-owned outlet stores to sell made-for-outlet goods
that are never intended to be sold at non-outlet stores.
27.
In California, such outlet stores are located in purpose-built malls touted as outlets,
or premium outlets. For example, Plaintiff Taylor purchased her Nike Outlet Products at the
premium outlets in Orange. The very term outlet conveys to reasonable consumers that at least
some products are comprised of merchandise formerly offered for sale at full-price retail
locations. The location of Nike Outlets in outlet malls deceives reasonable consumers into
believing they are receiving true outlet merchandise, when they are not.
28.
Instead, retailers like Nike create the illusion of traditional outlet discounts and bargains
by offering the made-for-outlet goods at prices reduced from fabricated, arbitrary, and false
MSRPs.
29.
Nike manufactures Nike Outlet Products exclusively for outlet stores. Indeed, sales
associates at Nike Outlet routinely confirm that products are manufactured exclusively for outlet
stores.
30.
Media reports indicates that outlet stores such as Nike Outlets are using false and
fraudulent price comparison tactics. See http://www.buzzfeed.com/sapna/customers-finallyaware-that-most-outlet-merchandise-is-now (last visited June 26, 2015).
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31.
The intentional use of false and fraudulent price comparison tactics is increasingly
deceiving consumers in the market. To illustrate, on January 30, 2014, four Members of
Congress demanded an FTC investigation of misleading marketing practices by outlet stores
across the United States. The four Members of Congress described a pricing scheme similar to
the one implemented at Nike Outlets and stated, [i]t is a common practice at outlet stores to
advertise a retail price alongside the outlet store priceeven on made-for-outlet merchandise
that does not sell at regular retail locations. Since the item was never sold in the regular retail
store or at the retail price, the retail price is impossible to substantiate. We believe this practice
may be a violation of the FTCs Guides Against Deceptive Pricing (16 CFR 233). See
http://www.whitehouse.senate.gov/news/release/sens-and-rep-to-ftc-outlet-stores-may-bemisleading-consumers (last visited June 26, 2015).
32.
This is precisely the practice used by Nike in its Nike Outlets.
Plaintiffs Purchases
33.
On June 20, 2015, Plaintiff Taylor entered the Nike Outlet located in Orange, California.
She observed that merchandise was advertised with price tags that represented an MSRP next
to a significantly reduced OUR PRICE. She also observed that other items in the store did not
make these price-reduction representations on their price tags. Ms. Taylor understood that the
items with the MSRP tags represented that she was receiving a bargain or a deal on the
producton sales terms more preferential or more optimal to the consumer than those offered
outside the context of the outlet store. Enticed by this prospect, Plaintiff was induced to
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purchase one Jordan Jumpman High shirt bearing Style Number 883153882939, two Jordan Air
Sneaker Socks bearing Style Numbers 884500205185 and 886059183419, one Air Jordan DriFit
Crew bearing Style Number 883212934338, two Baseball Diamond Speed shirts bearing Style
Numbers 887227821126 and 887227821065, and one Fly Elephant Pocket Tee bearing Style
Number 885176081653.1 Each of these items, and the other items she bought, advertised an
MSRP and a lower OUR PRICE.
34.
But Nike never intended, nor did it ever, sell the items at the represented MSRPs.
Thus, Plaintiff was deceived by the false price comparison into making a full retail purchase with
no discount.
35.
Plaintiff Taylor would not have purchased the products, or would not have paid the prices
she did, if she had known she was not truly receiving a bargain, or receiving a discount, as
specified.
36.
Plaintiffs and class members reliance on Defendants false price comparison advertising
was reasonable. In fact, empirical marketing studies provide an incentive for retailers to engage
in this false and fraudulent behavior:
[c]omparative price advertising offers consumers a basis for comparing the relative
value of the product offering by suggesting a monetary worth of the product and
any potential savings[A] comparative price advertisement can be construed as
deceptive if it makes any representation, or involves any practice that may
materially mislead a reasonable consumer.
Only a subset of Plaintiffs purchases are highlighted above to demonstrate Nikes deceptive
marketing scheme. Plaintiff Taylor also made numerous other purchases of Nike Outlet Products
during the Class Period, which include, but are not limited to, shirts, shoes, sweaters, socks, and
pants. Plaintiff maintains these receipts and will make them available as litigation progresses.
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Comparative Price Advertising: Informative or Deceptive?, Dhruv Grewal and Larry D.

Compeau, Journal of Public Policy & Marketing , Vol. 11, No. 1, at 52 (Spring 1992). In short:
[b]y creating an impression of savings, the presence of a higher reference price
enhances subjects perceived value and willingness to buy the productThus, if
the reference price is not truthful, a consumer may be encouraged to purchase as a
result of a false sense of value.
Id. at 55, 56.
37.
Despite the MSRP/OUR PRICE scheme used at Nike Outlets, Plaintiff would purchase
Nike products in the future from Nike Outlet stores and/or other retail establishments, if product
labels accurately reflect discounts and bargains. If the Court were to issue an injunction ordering
Nike to comply with Californias comparative price advertising laws, and prohibiting Nikes use
of the deceptive practices discussed herein, Plaintiff would likely shop for Nike Outlet Products
again in the near future at Nike Outlets.
CLASS ALLEGATIONS
38.
Plaintiff incorporates and realleges by reference each and every allegation contained in
the preceding paragraphs as if set forth herein in full.
39.
Plaintiff brings this claim individually and as a Class action pursuant to Federal Rule of
Civil Procedure 23 on behalf of the following subclass of persons located within the state of
California (the Class):
All individuals in the State of California who, within the applicable statute of
limitations preceding the filing of this action, purchased Nike Outlet Products from
a Nike Outlet store in California.
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Plaintiff reserves the right to redefine the Class or additional subclasses prior to
certification.
40.
Excluded from the Class are Nike, its parents, subsidiaries, affiliates, officers and
directors, any entity in which Nike has a controlling interest, all customers who make a timely
election to be excluded, governmental entities, and all judges, including their staff, assigned to
hear any aspect of this litigation, as well as their immediate family members.
41.
Plaintiff reserves the right to expand, limit, modify, or amend this class definition,
including the addition of one or more subclasses, in connection with their motion for class
certification, or any other time, based upon, inter alia, changing circumstances and/or new facts
obtained during discovery.
42.
The members of the Class are so numerous that joinder is impractical. The Class consists
of thousands of members, the precise number which is within the knowledge of and can be
ascertained only by resort to Nikes records.
43.
There are numerous questions of law and fact common to the Class which predominate
over any questions affecting only individual members of the Class. Among the questions of law
and fact common to the Class are:
(a)
Whether, during the Class Period, Nike used false price representations and falsely
advertised price discounts on its merchandise sold at Nike Outlets;

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(b)
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Whether, during the Class Period, the MSRPs advertised by Nike were the
prevailing market prices for the respective merchandise sold at Nike Outlets during the
three month periods preceding the dissemination and/or publication of the advertised
former prices;
(c)
Whether Nikes use of false or deceptive price advertising constituted false
advertising under California Law;

(d)
Whether Nike engaged in unfair, unlawful and/or fraudulent business practices
under California law;

(e)
Whether Nike misrepresented and/or failed to disclose material facts about its
product pricing and discounts;

(f)
Whether Nike has made false or misleading statements of fact concerning the
reasons for, existence of, or amounts of price reductions;

(g)
Whether Nikes conduct, as alleged herein, was intentional and knowing;
(h)
Whether Class members are entitled to damages and/or restitution, and in what
amount;
(i)
Whether Nike is likely to continue using false, misleading or illegal price
comparisons such that an injunction is necessary; and

(j)
Whether Plaintiff and Class members are entitled to an award of reasonable
attorneys fees, pre-judgment interest and costs of suit.

44.
Plaintiffs claims are typical of the claims of the members of the Class and, like all
members of the Class, purchased goods from a Nike Outlet that falsely conveyed an MSRP
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representation and a fictitious discount. Accordingly, Plaintiff has no interests antagonistic to

the interests of any other member of the Class.
45.
Plaintiff is a representative who will fully and adequately assert and protect the interests
of the Class, and has retained counsel who is experienced in prosecuting class actions.
Accordingly, Plaintiff is an adequate representative and will fairly and adequately protect the
interests of the Class.
46.
A class action is superior to all other available methods for the fair and efficient
adjudication of this lawsuit, because individual litigation of the claims of all members of the
Class is economically unfeasible and procedurally impracticable. While the aggregate damages
sustained by the Class are in the millions of dollars, the individual damages incurred by each
member of the Class resulting from Nikes wrongful conduct are too small to warrant the
expense of individual lawsuits. The likelihood of individual Class members prosecuting their
own separate claims is remote, and, even if every member of the Class could afford individual
litigation, the court system would be unduly burdened by individual litigation of such cases.
47.
The prosecution of separate actions by members of the Class would create a risk of
establishing inconsistent rulings and/or incompatible standards of conduct for Nike. For
example, one court might enjoin Nike from performing the challenged acts, whereas another
might not. Additionally, individual actions may be dispositive of the interests of the Class,
although certain class members are not parties to such actions.
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48.
The conduct of Nike is generally applicable to the Class as a whole and Plaintiff seeks,
inter alia, equitable remedies with respect to the Class as a whole. As such, the systematic
policies and practices of Nike make declaratory appropriate.
COUNT I
(Violation of the Unfair Prong of the UCL)
49.
paragraphs 1-48 as if fully set forth herein.
50.
The UCL defines unfair business competition to include any unlawful, unfair or
fraudulent act or practice, as well as any unfair, deceptive, untrue or misleading advertising.
Cal. Bus. & Pro. Code 17200.
51.
A business act or practice is unfair under the UCL if the reasons, justifications and
motives of the alleged wrongdoer are outweighed by the gravity of the harm to the alleged
victims.
52.
Nike has violated the unfair prong of the UCL by representing a false and misleading
MSRP and corresponding OUR PRICE representation for goods exclusively manufactured
for sale at Nike Outlets. As a result, the inflated MSRP and corresponding OUR PRICE was
nothing more than a false, misleading and deceptive illusion of a discount.
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53.
These acts and practices are unfair because they caused Plaintiff, and are likely to cause
consumers, to falsely believe that Nike Outlet is offering value, discounts or bargains from the
prevailing market worth of the products sold that did not, in fact, exist. As a result, purchasers,
including Plaintiff, reasonably perceived that they were receiving products that regularly were or
were intended to be sold at substantially higher prices (and were, therefore, worth more) than
what they paid. This perception has induced reasonable purchasers, including Plaintiff, to buy
such products, which they otherwise would not have purchased.
54.
The gravity of the harm to members of the Class resulting from these unfair acts and
practices outweighed any conceivable reasons, justifications and/or motives of Nike for engaging
in such deceptive acts and practices. By committing the acts and practices alleged above, Nike
engages in unfair business practices within the meaning of California Business & Professions
Code 17200, et seq.
55.
Through its unfair acts and practices, Nike has improperly obtained money from Plaintiff
and the Class. As such, Plaintiff requests that this court cause Nike to restore this money to
Plaintiff and all Class members, and to enjoin Nike from continuing to violate the UCL as
discussed herein and/or from violating the UCL in the future. Otherwise, Plaintiff and the
Classes may be irreparably harmed and/or denied an effective and complete remedy if such an
order is not granted.
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COUNT II
(Violation of the Fraudulent Prong of the UCL)
56.
57.
58.
A business act or practice is fraudulent under the UCL if it is likely to deceive
members of the consuming public.
59.
Nikes labels and advertising materials concerning false and misleading MSRPs were
fraudulent within the meaning of the UCL because they deceived Plaintiff, and were likely to
deceive members of the class, into believing that Nike was offering value, discounts or bargains
at Nike Outlets from the prevailing market value or worth of the products sold that did not, in
fact, exist.
60.
Nike deceived consumers into believing that it was offering value, discounts or bargains
at Nike Outlets from the prevailing market value, real suggested price or worth of the products
sold that did not, in fact, exist.
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61.
As a result, purchasers, including Plaintiff, reasonably perceived that they were receiving
products that were worth more than what they paid. This perception induced reasonable
purchasers, including Plaintiff, to buy such products from Nike Outlets, which they otherwise
would not have purchased.
62.
Nikes acts and practices as described herein have deceived Plaintiff and were highly
likely to deceive members of the consuming public. Specifically, in deciding to purchase
merchandise from a Nike Outlet store, Plaintiff relied on Nikes misleading and deceptive
representations regarding its MSRP and OUR PRICE price tags. Each of these factors
played a substantial role in Plaintiffs decision to purchase those products, and Plaintiff would
not have purchased those items in the absence of Nikes misrepresentations. Accordingly,
Plaintiff suffered monetary loss as a direct result of Nikes pricing practices described herein.
63.
As a result of the conduct described above, Nike has been unjustly enriched at the
expense of Plaintiff and members of the proposed Class. Specifically, Nike has been unjustly
enriched by obtaining revenues and profits that it would not otherwise have obtained absent its
false, misleading and deceptive conduct.
64.
Plaintiff and all Class members, and to enjoin Nike from continuing to violate the UCL as
discussed herein and/or from violating the UCL in the future. Otherwise, Plaintiff and the
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COUNT III
(Violation of the Unlawful Prong of the UCL)
65.
66.
67.
A business act or practice is unlawful under the UCL if it violates any other law or
regulation.
68.
California statutory and regulatory law also expressly prohibits false former pricing
schemes. Business & Professions Code 17501, entitled Value determinations; Former price
advertisements, states:
For the purpose of this article the worth or value of anything advertised is the
prevailing market price, wholesale if the offer is at wholesale, retail if the offer at
retail, at the time of publication of such advertisement in the locality wherein the
advertisement is published.
No price shall be advertised as a former price of any advertised thing, unless the
alleged former price was the prevailing market price as above defined within three
months next immediately preceding the publication of the advertisement or unless
the date when the alleged former price did prevail is clearly, exactly and
conspicuously stated in the advertisement. [Emphasis added.]
Id.
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69.
Civil Code 1770, subsection (a)(9), prohibits a business from [a]dvertising goods or
services with intent not to sell them as advertised, and subsection (a)(13) prohibits a business
from [m]aking false or misleading statements of fact concerning reasons for, existence of, or
amounts of price reductions.
70.
Nike also violated and continues to violate Business & Professions Code 17501, and
Civil Code 1770, sections (a)(9) and (a)(13) by advertising false discounts from purported
former prices that were, in fact, not the prevailing market prices within three months next
preceding the publication and dissemination of advertisements containing the false former prices.
71.
Further, the FTCA prohibits unfair or deceptive acts or practices in or affecting
commerce and specifically prohibits false advertisements. (15 U.S.C. 45(a)(1) and 15 U.S.C.
52(a)). The FTC has established Guidelines which prohibit false pricing schemes, similar to
Nikes MSRP/OUR PRICE Scheme in material respects, as deceptive practices that would
violate the FTCA:
(a)
Many members of the purchasing public believe that a manufacturers list
price, or suggested retail price, is the price at which an article is generally sold.
Therefore, if a reduction from this price is advertised, many people will believe that
they are being offered a genuine bargain. To the extent that list or suggested retail
prices do not in fact correspond to prices at which a substantial number of sales of
the article in question are made, the advertisement of a reduction may mislead the
consumer. A former price is not necessarily fictitious merely because no sales at
the advertised price were made. The advertiser should be especially careful,
however, in such a case, that the price is one at which the product was openly and
actively offered for sale, for a reasonably substantial period of time, in the recent,
regular course of her business, honestly and in good faith and, of course, not for
the purpose of establishing a fictitious higher price on which a deceptive
comparison might be based.
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(b)
It bears repeating that the manufacturer, distributor or retailer must in every
case act honestly and in good faith in advertising a list price, and not with the
intention of establishing a basis, or creating an instrumentality, for a deceptive
comparison in any local or other trade area. For instance, a manufacturer may not
affix price tickets containing inflated prices as an accommodation to particular
retailers who intend to use such prices as the basis for advertising fictitious price
reductions.
16 C.F.R. 233.3.
72.
Nikes use of and reference to a materially false MSRP in connection with its
marketing and advertisements concerning the merchandise sold at Nike Outlets violated and
continues to violate the FTCA, 15 U.S.C. 45(a)(1) and 15 U.S.C. 52(a), as well as FTC
Guidelines published at 16 C.F.R. 233.
73.
As a result of the conduct described above, Nike has been unjustly enriched at the
expense of Plaintiff and members of the proposed Class. Specifically, Nike has been unjustly
enriched by obtaining revenues and profits that it would not otherwise have obtained absent its
false, misleading and deceptive conduct.
74.
Through its unlawful acts and practices, Nike has improperly obtained money from
Plaintiff and the Class. As such, Plaintiff requests that this court cause Nike to restore this
money to Plaintiff and all Class members, and to enjoin Nike from continuing to violate the UCL
as discussed herein and/or from violating the UCL in the future. Otherwise, Plaintiff and the
///
///
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COUNT IV
(Violation of the California False Advertising Law,
California Business & Professions Code Section 17500, et seq.)
75.
76.
Californias Business and Professions Code 17500, et seq. prohibits unfair, deceptive,
untrue, or misleading advertising, including, but not limited to, false statements as to worth,
value and former price.
77.
Nikes practice of advertising MSRPs on exclusive, made-for-Nike Outlets
merchandise, which were materially greater than the actual prices of those products was an
unfair, deceptive and misleading advertising practice because it gave the false impression that the
products sold at Nike Outlets were worth more than they actually were. In fact, the exclusive,
made-for-Nike Outlet merchandise did not sell for a price anywhere close to the MSRP
advertised because the merchandise was always sold for, or discounted further from, the OUR
PRICE representation on the price tag when placed on sale at the Nike Outlets.
78.
Plaintiff and all Class members, and to enjoin Nike from continuing to violate the FAL as
discussed herein and/or from violating the FAL in the future. Otherwise, Plaintiff and the
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COUNT V
(Violation of the Consumers Legal Remedies Act,
California Civil Code Section 1750, et seq.: Injunctive Relief)
79.
80.
This cause of action is brought pursuant to the CLRA.
81.
Plaintiff and each member of the proposed class are consumers within the meaning of
California Civil Code 1761(d).
82.
Nikes selling of goods manufactured exclusively for sale at Nike Outlets to Plaintiff and
the Class were transactions within the meaning of California Civil Code 1761(e). The
products purchased by Plaintiff and the Class are goods within the meaning of California Civil
Code 1761(a).
83.
As described herein, Nike violated the CLRA by falsely representing the nature,
existence and amount of price discounts by fabricating inflated MSRPs on price tags. Such a
pricing scheme is in violation of Cal. Civ. Code 1770, subsection (a)(9) ([a]dvertising goods
or services with intent not to sell them as advertised) and subsection (a)(13) ([m]aking false or
misleading statements of fact concerning reasons for, existence of, or amounts of price
reductions).
///
///
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84.
Plaintiff relied on Nikes false representations in deciding to purchase goods at a Nike
Outlet. Plaintiff would not have purchased such items absent Nikes unlawful conduct.
85.
Plaintiff requests this Court enjoin Nike from continuing to violate the CLRA as
discussed herein and/or from violating the UCL in the future. Otherwise, Plaintiff, the Classes
and members of the general public may be irreparably harmed and/or denied effective and
complete remedy if such an order is not granted.
86.
This Court is the proper place for trial of this action under the CLRA because Nikes
principal place of business is in Oregon, and as further set forth in the Venue Declaration of
Monika Taylor, which is attached as Exhibit 1.
COUNT VI
(Unjust Enrichment)
87.
88.
Plaintiff brings this claim individually, as well as on behalf of members of the Classes,
under California law. Although there are numerous permutations of the elements of the unjust
enrichment cause of action in the various states, there are few real differences. In all states, the
focus of an unjust enrichment claim is whether the defendant was unjustly enriched. At the core
of each states law are two fundamental elements the defendant received a benefit from the
plaintiff and it would be inequitable for the defendant to retain that benefit without compensating
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the plaintiff. The focus of the inquiry is the same in each state. Since there is no material
conflict relating to the elements of unjust enrichment between the different jurisdictions from
which Class members will be drawn, California law applies to the claims of the Classes.
89.
In the alternative, Plaintiff brings this claim individually as well as on behalf of the
California Class.
90.
At all times relevant hereto, Defendant deceptively priced, marketed, advertised, and sold
Nike Outlet Products to Plaintiff and the Classes.
91.
Plaintiff and members of the Classes conferred upon Defendant non-gratuitous payments
for merchandise that they would not have if not for Defendants deceptive pricing, advertising,
and marketing. Defendant accepted or retained the non-gratuitous benefits conferred by Plaintiff
and members of the Classes, with full knowledge and awareness that, as a result of Defendants
deception, Plaintiff and members of the Classes were not receiving a product of the quality,
nature, fitness, or value that had been represented by Defendant and reasonable consumers would
have expected.
92.
Defendant has been unjustly enriched in retaining the revenues derived from purchases of
merchandise by Plaintiff and members of the Classes, which retention under these circumstances
is unjust and inequitable because Defendant misrepresented, among other things, that its
merchandise was being offered at a significant discount, which caused injuries to Plaintiff and
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members of the Classes because they paid for, and/or paid a price premium due to the misleading
pricing and advertising.
93.
Retaining the non-gratuitous benefits conferred upon Defendant by Plaintiff and members
of the Classes under these circumstances made Defendants retention of the non-gratuitous
benefits unjust and inequitable. Thus, Defendant must pay restitution to Plaintiff and members
of the Classes for unjust enrichment, as ordered by the Court.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff and the members of the Class demand a jury trial on all claims
so triable and judgment against Defendant Nike as follows:
A.
An order certifying that this action may be maintained as a class action, that
Plaintiff be appointed Class Representative and Plaintiffs counsel be appointed
Class Counsel;
B.
Pursuant to Plaintiffs first four causes of action, a judgment awarding Plaintiff

and all members of the Class restitution and/or other equitable relief, including,
without limitation, restitutionary disgorgement of all profits and unjust
enrichment that Defendant obtained from Plaintiff and the Class as a result of its
unlawful, unfair and fraudulent business practices described herein;
C.
An order enjoining Defendant from continuing to violate the UCL, False

Advertising Law and CLRA as described herein;
D.
A judgment awarding Plaintiff her costs of suit; including reasonable attorneys

fees pursuant to California Civil Code 1780(d), Code of Civil Procedure
1021.5 and as otherwise permitted by statute; and pre and post-judgment interest;
Case 3:16-cv-00661-MO
E.
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Excluding the fifth cause of action, an order awarding Plaintiff and the proposed
Class members damages;
F.
Excluding the fifth cause of action, an order awarding restitution and

disgorgement of all profits and unjust enrichment that Defendant obtained from
Plaintiff and the Class members as a result of its unlawful, unfair and fraudulent
business practices described herein; and
G.
Such other and further relief as may be deemed necessary or appropriate.

JURY TRIAL DEMANDED
PLAINTIFF demands a jury trial on all triable issues.

DATED this 18th day of April, 2016.
MARKOWITZ HERBOLD PC
By:
/s/ J. Matthew Donohue

J. Matthew Donohue, OSB NO. 067542
Shannon Armstrong, OSB No. 060113
(503) 295-3085
KOPELOWITZ OSTROW P.A.
Jeffrey M. Ostrow, Florida Bar No. 121452
Scott A. Edelsberg, Florida Bar No. 0100537
(954) 525-4100
TYCKO & ZAVAREEI LLP
Hassan A. Zavareei, California Bar No. 181547
Jeffrey D. Kaliel, California Bar No. 238293
(202) 973-0900
LAW OFFICES OF WAYNE S. KREGER, PA
Wayne S. Kreger, California Bar No. 154759
(310) 917-1083
Attorneys for Plaintiff

Monika Taylor v. Nike

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Case 3:16-cv-00661-MO

J. Matthew Donohue, OSB NO. 067542

Page 1 CLASS ACTION ALLEGATION COMPLAINT

UNITED STATES DISTRICT COURT

Case No.: ___________

CLASS ACTION ALLEGATION

Unfair Or Deceptive Trade Practices Action

DEMAND FOR JURY TRIAL

CLASS ACTION COMPLAINT

Page 2 CLASS ACTION ALLEGATION COMPLAINT

Page 3 CLASS ACTION ALLEGATION COMPLAINT

Page 4 CLASS ACTION ALLEGATION COMPLAINT

Page 6 CLASS ACTION ALLEGATION COMPLAINT

Page 7 CLASS ACTION ALLEGATION COMPLAINT

Page 8 CLASS ACTION ALLEGATION COMPLAINT

JURISDICTION AND VENUE

Page 9 CLASS ACTION ALLEGATION COMPLAINT

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Page 11 CLASS ACTION ALLEGATION COMPLAINT

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Comparative Price Advertising: Informative or Deceptive?, Dhruv Grewal and Larry D.

Page 13 CLASS ACTION ALLEGATION COMPLAINT

advertised price discounts on its merchandise sold at Nike Outlets;

Page 14 CLASS ACTION ALLEGATION COMPLAINT

Whether Nikes use of false or deceptive price advertising constituted false

advertising under California Law;

Whether Nike engaged in unfair, unlawful and/or fraudulent business practices

under California law;

product pricing and discounts;

reasons for, existence of, or amounts of price reductions;

Whether Nikes conduct, as alleged herein, was intentional and knowing;

Whether Nike is likely to continue using false, misleading or illegal price

comparisons such that an injunction is necessary; and

Whether Plaintiff and Class members are entitled to an award of reasonable

attorneys fees, pre-judgment interest and costs of suit.

Page 15 CLASS ACTION ALLEGATION COMPLAINT

representation and a fictitious discount. Accordingly, Plaintiff has no interests antagonistic to

Page 16 CLASS ACTION ALLEGATION COMPLAINT

Page 17 CLASS ACTION ALLEGATION COMPLAINT

Page 18 CLASS ACTION ALLEGATION COMPLAINT

Page 19 CLASS ACTION ALLEGATION COMPLAINT

Page 20 CLASS ACTION ALLEGATION COMPLAINT

Page 22 CLASS ACTION ALLEGATION COMPLAINT

Page 26 CLASS ACTION ALLEGATION COMPLAINT

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Pursuant to Plaintiffs first four causes of action, a judgment awarding Plaintiff

An order enjoining Defendant from continuing to violate the UCL, False

A judgment awarding Plaintiff her costs of suit; including reasonable attorneys

Page 28 CLASS ACTION ALLEGATION COMPLAINT

Excluding the fifth cause of action, an order awarding restitution and

Such other and further relief as may be deemed necessary or appropriate.

PLAINTIFF demands a jury trial on all triable issues.

/s/ J. Matthew Donohue

Page 29 CLASS ACTION ALLEGATION COMPLAINT

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