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Retailers love "70% OFF!" signs the way kids love Halloween candy. And like an overfilled pillowcase of fun-sized chocolate, big discounts can create big legal questions.
That dynamic is front and center in Hernandez v. Aéropostale. The plaintiff claims the retailer advertised steep discounts off inflated "regular" prices that did not reflect actual market pricing. She argues she believed she was getting a true bargain, but later concluded the promotion was misleading under Washington's Consumer Protection Act (CPA).
How the case reached the Washington Supreme Court
The case began in federal court. The district court dismissed the complaint, finding the plaintiff did not adequately allege an injury under the CPA. On appeal, the Ninth Circuit certified a question to the Washington Supreme Court, asking the state's high court to clarify what qualifies as "injury" under the Washington CPA in the context of alleged "fake sale" pricing.
Federal courts can certify questions of unresolved state law to state supreme courts when interpretation of the state statute will be outcome-determinative. That is the posture here.
A familiar principle resurfaces: disappointment is not injury
During oral argument, several justices focused on whether feeling misled about a discount, without more, amounts to a compensable injury. The plaintiff received the products she selected at the price she paid. Her theory rests on post-purchase realization that the deal was not as good as she believed.
The court highlighted its previous decision in Young v. Toyota, noting:
"We have the Young v. Toyota case that really talks about after-the-fact disappointment or embarrassment — 'I thought I was getting a deal, but I was not getting a deal' — that's not an injury for purposes of the CPA."
In Young, the Court explained that subjective disappointment does not satisfy the CPA's injury requirement absent actual, measurable harm. The justices' questions during the Aéropostale argument suggest continued adherence to that principle.
What this may mean for retail and consumer cases in Washington
If the Court holds that disappointment about a perceived bargain is not enough, plaintiffs will need to show concrete economic loss tied to alleged deceptive pricing, such as paying more than the true value or market price.
For brands and counsel, key takeaways include:
- The CPA requires actual injury, not post-purchase regret.
- Reference pricing claims are still scrutinized, but plaintiffs must allege real monetary harm (at least in Washington).
- Documentation of pricing practices remains important, particularly for repeated "sale" messaging.
Bottom line
The Court's questions signal that a "I thought I got a deal but didn't" theory, without evidence of economic harm, may not support a CPA claim. A decision reaffirming that principle would reinforce Washington's requirement of concrete injury in consumer deception cases.
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