• The named plaintiff sued for alleged violations of California’s consumer protection laws, claiming that he purchased a pair of Saks Fifth Avenue shoes that were falsely labeled as marked down from an artificially inflated “Market Price.”
• The Ninth Circuit reversed the district court’s order dismissing the plaintiff’s claims, holding that the plaintiff’s allegations of a sham sale were sufficient to state a claim. Specifically, the Ninth Circuit found that the plaintiff’s allegation that “he would not have purchased the shoes but for his reliance on the allegedly fictitious inflated ‘Market Price’ on the shoes’ price tag” was sufficient to allege a cognizable injury and confer statutory standing.
• But the Court determined that the plaintiff lacked standing to seek injunctive relief because, although he alleged that he may shop at a Saks store in the future, he did not allege any intent to purchase any Saks Fifth Avenue products in the future.
• Notably, Nunez shows that Article III standing challenges to a plaintiff’s request for injunctive relief are not a dead-letter in the Ninth Circuit notwithstanding Davidson v. Kimberly-Clark Corporation, 889 F.3d 956 (9th Cir. 2018).
  • Davidson held that “a previously deceived consumer may have standing to seek an injunction against false advertising or labeling, even though the consumer now knows or suspects that the advertising was false at the time of the original purchase.”
• Thus, the Ninth Circuit reaffirmed that, at a minimum, a plaintiff must allege “an actual and imminent, not conjectural or hypothetical threat of future harm”—such as allegations that the plaintiff intends to purchase the defendant’s products in the future.

Read the Ninth Circuit’s opinion in Nunez here.