False Discounting Alone Is Not a CPA “Business or Property” Injury Absent Objective Economic Loss

1. Introduction

Montes addresses a recurring “false discounting” scenario: a retailer advertises a low price alongside a higher struck-through “regular” price, creating the impression of a bargain, but the higher reference price allegedly was rarely charged. Plaintiff Shawnna Montes alleged that she bought leggings advertised at $6.00 with a struck-through $12.50 “regular price,” and that she made the purchase because the strike-through pricing suggested a genuine discount. She received and kept leggings that conformed to what was advertised at the $6.00 price, and she did not allege they were worth less than $6.00.

The Ninth Circuit asked whether, under RCW 19.86.020 and RCW 19.86.090, a consumer who pays the advertised price nevertheless suffers an “injur[y] in his or her business or property” when the seller misrepresents the product’s “discounted price, comparative price, or price history.”

2. Summary of the Opinion

The Washington Supreme Court (majority opinion by Gordon McCloud, J.) answered the certified question no: when a consumer purchases and obtains the fungible product she sought at the advertised price, a misrepresentation about price history—without more—does not plead the CPA’s required injury to “business or property.

The court distinguished cases where the product or service delivered was objectively different or less valuable than represented (e.g., Williams v. Lifestyle Lift Holding, Inc.). It also rejected Montes’s “price premium” theory on the pleadings as inconsistent with her own position that the leggings’ value matched the $5–$6 range at which they were regularly sold.

Dissent: Stephens, C.J., would have answered the question yes, reasoning that “injury to business or property” under the CPA is broader than purely quantifiable economic loss and can include being wrongfully induced to spend money one otherwise would not have spent, as well as a pleaded “price premium” harm.

3. Analysis

3.1 Precedents Cited

A. The CPA’s injury requirement and its limits

• Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778 (1986): The court reiterated the five “distinct” private CPA elements, including (4) injury to business or property and (5) causation. Montes treats injury as a statutory gatekeeper for private plaintiffs under RCW 19.86.090.
• Ambach v. French, 167 Wn.2d 167 (2009) (citing Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299 (1993)): The majority relied on these cases for the proposition that “business or property” injuries are “economic in nature.” This framing supplies the opinion’s core premise: the CPA excludes purely noneconomic harms from the private right of action.
• Frias v. Asset Foreclosure Servs., Inc., 181 Wn.2d 412 (2014) (quoting Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27 (2009)): The majority invoked Frias/Panag to emphasize what does not qualify as CPA injury—“personal injury, ‘mental distress, embarrassment, and inconvenience.’” In Montes, this becomes part of a broader contrast between “objective economic loss” and subjective disappointment.
• Mason v. Mortg. Am., Inc., 114 Wn.2d 842 (1990) and Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735 (1987): The majority cited these for the point that CPA injury may be “minimal,” “temporary,” or difficult to quantify—yet still must be economic. (The dissent uses these authorities in the opposite direction, emphasizing that CPA injury is not coextensive with proven monetary damages.)

B. Misrepresentation, product “difference,” and economic harm

• Williams v. Lifestyle Lift Holding, Inc., 175 Wn. App. 62 (2013): The majority used Williams as the archetype of cognizable injury in deceptive advertising: the plaintiff received a materially different and more harmful surgical procedure than promised. Montes treats Williams as illustrating when deception translates into objective economic loss—because the thing received is not the thing represented (or is less valuable in an objective sense).
• Young v. Toyota Motor Sales, U.S.A., 196 Wn.2d 310 (2020): The majority found Young “similar”: a misrepresentation that did not materially affect the product’s objective value did not yield a cognizable private CPA claim (though Young focused on causation, the majority treated the analysis as overlapping with injury).
• Nelson v. Appleway Chevrolet, Inc., 160 Wn.2d 173 (2007): Cited for the proposition that “the market determines the fair market value.” The majority used this to resist treating an advertised “regular price” as an objective measure of value for a fungible good.

C. Persuasive authorities (including closely analogous litigation)

• Robey v. SPARC Group LLC, 256 N.J. 541, 311 A.3d 463 (2024): Central persuasive authority. The majority emphasized the near identity of allegations and concluded, as did New Jersey’s high court, that reference-price deception without allegations of product defect, reduced objective value, or a failed attempt to return does not establish actionable loss under purchase-price or benefit-of-the-bargain theories.
• Mulder v. Kohl's Dep't Stores, Inc., No 15-11377-FDS, 2016 WL 393215 (D. Mass. Feb. 1, 2016), aff'd, 865 F.3d 17 (1st Cir. 2017): Quoted for the proposition that being “manipulated” into believing one got a bargain does not “necessarily” equal economic harm.
• Bezdek v. Vibram USA Inc., No. 12-10513-DPW, 2013 WL 639145 (D. Mass. Feb. 20, 2013): Cited for rejecting an “induced purchase” injury theory where the buyer still received something of value.
• McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir. 2008), abrogated on other grounds by Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639 (2008): Used to underscore the majority’s view that “expectations” (as opposed to economic loss) are not “business or property” injury.

D. Procedure and interpretive method

• Carlsen v. Glob. Client Sols., LLC, 171 Wn.2d 486 (2011): De novo review of certified questions; court considers the question in light of the certified record.
• Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820 (2015) (quoting FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954 (2014)) and Cunningham v. Cornell Univ., 604 U.S. 693 (2025): For Rule 12(b)(6) posture—accept factual allegations as true but not legal conclusions.
• Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1 (2002) and Ass'n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342 (2015): For statutory interpretation methodology (text, context, related provisions).

E. Enforcement structure: private suits vs. attorney general actions

• State v. Mandatory Poster Agency, Inc., 199 Wn. App. 506 (2017): Cited for the proposition that the attorney general “is not required to prove causation or injury” under RCW 19.86.080—supporting the majority’s point that some deceptive practices may be actionable by the State even if a private plaintiff cannot plead RCW 19.86.090 injury.

3.2 Legal Reasoning

The majority’s reasoning is built around a sharp distinction between:

• Objective economic loss (cognizable): e.g., paying for something objectively different from what was represented, receiving something less valuable than the purchase price, or incurring measurable economic consequences tied to deception.
• Subjective disappointment/expectations (not cognizable): the lost satisfaction of having obtained a “deal,” absent allegations that the product was worth less than paid or was materially different.

Applying that framework, the majority treated a reference-price misrepresentation about leggings’ price history as a statement that does not alter the leggings’ objective characteristics (quality, composition, usefulness, etc.). On the pleaded facts, Montes: (i) paid the advertised $6.00, (ii) received conforming leggings, (iii) kept them, and (iv) did not allege they were worth less than $6.00. Therefore, the complaint alleged deception but not the statutorily required private-plaintiff “injury” under RCW 19.86.090.

The majority separately rejected the “price premium” theory in this record because the pleaded and litigated position that the leggings’ value was $5–$6 undermined a theory that the price paid was inflated above value by artificially increased demand.

The dissent criticized the majority for effectively requiring proof-like quantification at the injury stage and for narrowing “injury” under a statute directed to be “liberally construed” (RCW 19.86.920; Panag v. Farmers Ins. Co. of Wash.). It argued that wrongful inducement to spend money can itself be injury to property, and it endorsed recognizing price-premium allegations as a viable injury theory at the pleading stage.

3.3 Impact

• False discounting class actions in Washington face a higher “injury” pleading barrier. After Montes, alleging deception plus “I would not have bought it” is generally insufficient where the buyer paid the advertised price for a fungible good and received/kept a conforming product.
• Private CPA claims will likely pivot to “objective loss” allegations. Plaintiffs may attempt to plead (and later prove) that the item was worth less than paid, was materially different from what was represented, or that the seller’s practices caused measurable overpayment (a substantiated price-premium theory) rather than “lost bargain” disappointment.
• Regulatory/AG enforcement becomes relatively more important. The majority explicitly noted that deceptive practices may still be addressed through different legal routes, including attorney general enforcement under RCW 19.86.080, which does not require proving private injury or causation (State v. Mandatory Poster Agency, Inc.).
• Doctrinal clarification: “injury” vs. deception. Montes reinforces that a practice can be unfair/deceptive (and even broadly public-facing) yet still not support a private CPA claim without a pleaded objective economic injury.

4. Complex Concepts Simplified

• “Injury to business or property” (RCW 19.86.090): For private CPA suits, the plaintiff must show harm to money or property interests—what the majority frames as an objective economic loss, not merely feelings of being misled.
• Fungible consumer goods: Interchangeable goods where one unit is essentially the same as another (e.g., standard leggings of a given type). The court treated price-history claims as not changing the good itself.
• Purchase-price theory: “I wouldn’t have bought this if I knew the truth.” The majority rejected this alone as CPA injury where the buyer got what she paid for.
• Benefit-of-the-bargain theory: “I didn’t get the bargain I was promised.” The majority treated this as disappointed expectations absent allegations of objective value shortfall.
• Price-premium theory: “The deception inflated demand and made the market price higher, so I overpaid.” The majority did not foreclose the theory in principle but held the complaint’s factual posture did not support it here.
• Certified question: A federal appellate court asks the state supreme court to clarify unsettled state law. The Washington Supreme Court answers the legal question, grounded in the certified record (Carlsen v. Glob. Client Sols., LLC).

5. Conclusion

Montes v. SPARC Group LLC sets a clear Washington rule for private CPA claims arising from “false discounting” of fungible consumer goods: deception about reference pricing or price history, standing alone, does not satisfy RCW 19.86.090’s requirement of injury to “business or property” when the consumer pays the advertised price and receives/keeps a conforming product. The decision channels such disputes toward allegations (and proof) of objective economic loss—or toward public enforcement mechanisms where private injury is not required.