Court filing
STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d… — Brooks v. Thomson Reuters Corporation (Dkt. 197)
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Plaintiffs' Statement of Recent Decision, Document 197, filed 04/07/23 in Case No. 3:21-cv-01418-EMC-KAW, Cat Brooks and Rasheed Shabazz v. Thomson Reuters Corporation, N.D. Cal., San Francisco Division. Under Civil L.R. 7-3(d)(2), Plaintiffs give notice of the Ninth Circuit's March 13, 2023 decision in Van v. LLR, Inc., which they state was published after their Reply in Support of Class Certification (ECF No. 169-3) and is germane to their pending Motion for Class Certification (ECF No. 124-3). Plaintiffs state that the opinion is relevant to superiority, typicality and predominance. The filing, with a /s/ Andre M. Mura signature, attaches the opinion as Exhibit 1, Ninth Circuit No. 21-36020, in which the panel vacated the order certifying a class of Alaska purchasers and remanded.
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“STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d… — Brooks v. Thomson Reuters Corporation (Dkt. 197).”
Original at ecf.cand.uscourts.gov, No. 3:21-cv-01418-EMC, Doc. 197. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-brooks-thomsonreuters-cand-374304/2023-04-07-gov-uscourts-cand-374304-197-0-gov-uscourts-cand-374304-197-0/
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Case 3:21-cv-01418-EMC Document 197 Filed 04/07/23 Page 1 of 39
1 Eric H. Gibbs (SBN 178658) Geoffrey A. Graber (SBN 211547)
Andre M. Mura (SBN 298541) Karina G. Puttieva (SBN 317702)
2 Amy M. Zeman (SBN 273100) COHEN MILSTEIN SELLERS & TOLL
3 Mark H. Troutman (pro hac vice) PLLC
Ezekiel S. Wald (SBN 341490) 1100 New York Ave. NW, Fifth Floor
4 Hanne Jensen (SBN 336045) Washington, DC 20005
GIBBS LAW GROUP LLP Telephone: (202) 408-4600
5 1111 Broadway, Suite 2100 Facsimile: (202) 408-4699
6 Oakland, CA 94607 ggraber@cohenmilstein.com
Telephone: (510) 350-9700 kputtieva@cohenmilstein.com
7 Facsimile: (510) 350-9701
ehg@classlawgroup.com
8 amm@classlawgroup.com
amz@classlawgroup.com
9
mht@classlawgroup.com
10 zsw@classlawgroup.com
hj@classlawgroup.com
11
12 Attorneys for Plaintiffs and the Proposed Class
13
14
UNITED STATES DISTRICT COURT FOR THE
15 NORTHERN DISTRICT OF CALIFORNIA
16 SAN FRANCISCO DIVISION
17 CAT BROOKS and RASHEED SHABAZZ, Case No. 3:21-cv-01418-EMC-KAW
individually and on behalf of all others
18 similarly situated,
19 PLAINTIFFS’ STATEMENT OF RECENT
Plaintiffs, DECISION
20
v.
21
22 THOMSON REUTERS CORPORATION,
23 Defendant.
24
25
26
27
28
PLAINTIFFS’ STATEMENT OF RECENT DECISION
Case No.: 3:21-cv-01418-EMC-KAW
Case 3:21-cv-01418-EMC Document 197 Filed 04/07/23 Page 2 of 39
1 Pursuant to Civil L.R. 7-3(d)(2), Plaintiffs hereby provide notice to the Court of the Ninth Circuit’s
2 decision, on March 13, 2023, in Van v. LLR, Inc., 61 F.4th1053 (9th Cir. Mar. 13, 2023). This decision was
3 published after the filing of Plaintiffs’ Reply in Support of Class Certification (ECF No. 169-3) and is germane
4 to the Court’s consideration of Plaintiffs’ Motion for Class Certification that is currently pending (ECF No.
5 124-3). A true and correct copy of the opinion is attached as Exhibit 1. The opinion (at 16 n.4) is relevant to
6 the parties’ arguments regarding superiority, such as at ECF No. 169-3 at 14. The opinion (at 24) is also
7 relevant to the parties’ arguments regarding typicality and predominance, such as at ECF No. 169-3 at 3-4
8 and 9-14.
9
10 DATED: April 7, 2023 Respectfully submitted,
11 /s/ Andre M. Mura
12 Andre M. Mura
13 Eric H. Gibbs (SBN 178658)
Andre M. Mura (SBN 298541)
14 Amy M. Zeman (SBN 273100)
Mark H. Troutman (pro hac vice)
15
Ezekiel S. Wald (SBN 341490)
16 Hanne Jensen (SBN 336045)
GIBBS LAW GROUP LLP
17 1111 Broadway, Suite 2100
Oakland, California 94607
18
Telephone: (510) 350-9700
19 Facsimile: (510) 350-9701
ehg@classlawgroup.com
20 amm@classlawgroup.com
amz@classlawgroup.com
21 mht@classlawgroup.com
22 zsw@classlawgroup.com
hj@classlawgroup.com
23
Geoffrey A. Graber (SBN 211547)
24 Karina G. Puttieva (SBN 317702)
25 COHEN MILSTEIN SELLERS & TOLL
PLLC
26 1100 New York Ave. NW, Fifth Floor
Washington, DC 20005
27 Telephone: (202) 408-4600
28 Facsimile: (202) 408-4699
PLAINTIFFS’ STATEMENT OF RECENT DECISION
Case No.: 3:18-cv-01418-EMC-KAW
1
Case 3:21-cv-01418-EMC Document 197 Filed 04/07/23 Page 3 of 39
ggraber@cohenmilstein.com
1 kputtieva@cohenmilstein.com
2
Attorneys for Plaintiffs and the Proposed Class
3
4
5
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7
8
9
10
11
12
13
14
15
16
17
18
19
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PLAINTIFFS’ STATEMENT OF RECENT DECISION
Case No.: 3:18-cv-01418-EMC-KAW
2
Case 3:21-cv-01418-EMC Document 197 Filed 04/07/23 Page 4 of 39
EXHIBIT 1
Case: 21-36020,
Case 03/13/2023, ID:
3:21-cv-01418-EMC 12672262,
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATIE VAN, individually and on No. 21-36020
behalf of all others similarly situated,
D.C. No.
Plaintiff-Appellee, 3:18-cv-00197-
HRH
v.
LLR, INC., DBA LuLaRoe; and OPINION
LULAROE, LLC,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, District Judge, Presiding
Argued and Submitted December 7, 2022
Pasadena, California
Filed March 13, 2023
Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan
Christen, Circuit Judges.
Opinion by Judge Bea;
Partial Concurrence by Judge Christen
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2 KATIE VAN V. LLR, INC.
SUMMARY *
Class Certification
The panel vacated the district court’s order certifying a
class of Alaska purchasers pursuant to Rule 23(f) of the
Federal Rules of Civil Procedure, and remanded for further
proceedings.
Defendant LuLaRoe, a multilevel-marketing company
that sells clothing to purchasers across the United States
through “fashion retailers” located in all fifty states,
allegedly charged sales tax to these purchasers based on the
location of the retailer rather than the location of the
purchaser, which resulted in some online purchasers being
charged, and having paid, sales tax when none was
owed. LuLaRoe eventually refunded all the improper sales
tax it collected, but it did not pay interest on the refunded
amounts. Plaintiff Katie Van, an Alaska resident who paid
the improperly charged sales tax to LuLaRoe, brought this
class action under Alaska law on behalf of herself and other
Alaskans who were improperly charged by and paid sales tax
to LuLaRoe, for recovery of the interest on the now-refunded
amounts collected and for recovery of statutory damages in
the amount of $36 million ($500 per transaction). The
district court certified the class under Rule 23(b)(3) and
LuLaRoe appealed under Rule 23(f).
The panel first rejected LuLaRoe’s argument that class
certification was improper because the small amount of
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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money currently owed to some class members was
insufficient to support standing and the presence of these
class members in the class made individualized issues
predominant over class issues. The panel held that any
monetary loss, even one as small as a fraction of a cent, was
sufficient to support standing. Thus, the presence of class
members who suffered only a fraction of a cent of harm did
not create an individualized issue that could predominate
over the class issues.
The panel next rejected LuLaRoe’s assertion that some
purchasers knew that the sales tax charge was improper but
nevertheless voluntarily paid the invoice which contained
the improperly assessed sales tax amount, and thus, under
applicable Alaska law, no deceptive practice caused any
injury for these purchasers. The panel held that it had
jurisdiction to consider the issue of voluntary payment
because it was both factually and legally part of the district
court’s class certification decision. The panel determined
that LuLaRoe’s minimal proffers of evidence supporting this
defense were insufficient to raise individualized questions
that could predominate over the common questions raised by
Van.
Finally, the panel held that LuLaRoe’s third argument,
that class certification should be reversed because some
fashion retailers offset the improper sales tax through
individual discounts, had merit. Both parties and the district
court agreed that any class member who received a discount
in an amount greater than or equal to the improper sales tax
for the purpose of offsetting the improper sales tax had no
claim against LuLaRoe. The panel determined that
LuLaRoe invoked an individualized issue—that retailer
discounts left some class members uninjured—and provided
evidence that at least some class members lacked
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meritorious claims because of this issue, thus raising the
spectre of class-member-by-class-member adjudication.
When a defendant substantiates such an individualized issue
in this way, the district court must determine whether the
plaintiff has proven by a preponderance of the evidence that
the questions of law or fact common to class members
predominate over any questions affecting only individual
members—that is, whether a class-member-by-class-
member assessment of the individualized issue will be
unnecessary or workable. To afford the district court a new
opportunity to weigh the predominance of class issues
against this individualized issue, the panel vacated the
district court’s order certifying the class and remanded for
further proceedings.
Concurring in part and concurring in the judgment,
Judge Christen agreed that class members who suffered
negligible losses of money, or who were deprived of their
money for negligible periods of time, suffered concrete
injuries sufficient for Article III standing. Judge Christen
also agreed with the majority that LuLaRoe did not show that
individualized questions related to its voluntary payment
defense will predominate over common questions, and that
remand was necessary because it appeared the district court
may have overlooked LuLaRoe’s Exhibit E, which showed
eighteen transactions with customers in Alaska who received
discounts for the express purpose of offsetting LuLaRoe’s
improperly assessed sales tax. Judge Christen wrote
separately to briefly address the majority’s conclusion that it
had interlocutory jurisdiction to consider the voluntary
payment issue merely because LuLaRoe re-briefed this
previously rejected defense at the class certification stage
and to address the majority’s impression that the district
court somehow misunderstood the way Rule 23 operates
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when it considered LuLaRoe’s evidence that some fashion
retailers offset the sales tax with discounts. Judge Christen
agreed that remand was required, but only because the
district court appeared to have overlooked an exhibit, and
one could not say that the failure to consider it was harmless.
COUNSEL
Andrew M. Jacobs (argued), Snell & Wilmer LLP, Phoenix,
Arizona; Jing (Jenny) Hua, Steven T. Graham, Randolph T.
Moore, and Colin R. Higgins, Snell & Wilmer LLP, Costa
Mesa, California; Michael Baylous and Brewster H.
Jamieson, Lane Powell PC, Anchorage, Alaska; for
Defendants-Appellants.
Kelly K. Iverson (argued) and Jamisen A. Etzel, Lynch
Carpenter LLP, Pittsburgh, Pennsylvania; Ronald B.
Carlson, Carlson Brown, Sewickley, Pennsylvania; James J.
Davis Jr., Northern Justice Project LLC, Anchorage, Alaska;
Goriune Dudukgian, California Justice Project, Pasadena,
California; for Plaintiff-Appellee.
Shelby H. Leighton and Karla Gilbride, Public Justice,
Washington, D.C., for Amicus Curiae Public Justice.
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6 KATIE VAN V. LLR, INC.
OPINION
BEA, Circuit Judge:
Defendants LLR, Inc., and LuLaRoe, LLC (collectively
“LuLaRoe”), appeal the district court’s certification of a
class of Alaska purchasers pursuant to Rule 23(f) of the
Federal Rules of Civil Procedure. LuLaRoe allegedly
charged sales tax to these purchasers based on the location
of the retailer, rather than the location of the purchaser,
which resulted in some online purchasers being charged, and
having paid, sales tax when none was owed.
LuLaRoe eventually refunded all the improper sales tax
it collected, but it did not pay interest on the refunded
amounts. Plaintiff Katie Van, an Alaska resident who paid
the improperly charged sales tax to LuLaRoe, brought this
class action under Alaska law on behalf of herself and other
Alaskans who were improperly charged by, and paid sales
tax to LuLaRoe for recovery of the interest on the now-
refunded amounts collected and for recovery of statutory
damages in the amount of $36 million ($500 per transaction).
The district court certified the class under Rule 23(b)(3) and
LuLaRoe appealed under Rule 23(f).
On appeal, LuLaRoe raises various arguments attacking
the district court’s certification order. Only one of
LuLaRoe’s arguments has merit: In its class certification
decision, the district court clearly erred in its assessment of
whether the individualized issues generated by the retailer
discounts—some of which were provided to offset the
improper sales tax—defeat the predominance of class issues.
To afford the district court a new opportunity to weigh the
predominance of class issues against this individualized
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issue, we vacate the district court’s order certifying the class
and remand for further proceedings.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
A. Factual Background
LuLaRoe is a multilevel-marketing company that sells
clothing to purchasers across the United States through
“fashion retailers” located in all fifty states. These fashion
retailers are not typical brick-and-mortar retail outlets.
Instead, LuLaRoe’s fashion retailers are generally lone
individuals who sell LuLaRoe merchandise through word-
of-mouth or social media sales. The fashion retailers
purchase merchandise from LuLaRoe and are responsible
for managing all aspects of their independently owned
businesses, including inventory control, advertising, pricing,
collection of payment from purchasers, and delivery.
Nevertheless, LuLaRoe provides certain support systems
to the fashion retailers, including, from 2014 to 2017, a
“point-of-sale” system called “Audrey” through which
retailers could input discounts, calculate tax, process
payments, and generate invoices and receipts. When
transactions were processed through Audrey, the sales tax
portion of the payment on the invoice paid to Audrey was
transmitted to LuLaRoe. LuLaRoe then forwarded the
amount of tax paid to the relevant jurisdiction. The fashion
retailers were not required to use Audrey, and many fashion
retailers processed payments through other platforms, such
as Square, PayPal, or Mercari.
Audrey was meant to have—and was initially believed
by LuLaRoe to have—the ability to calculate sales tax based
on either the location of the fashion retailer or the location to
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which the fashion retailer shipped the merchandise.
However, this proved incorrect. Audrey would always
collect sales tax based on the location of the fashion retailer,
even though normal rules of tax law require the calculation
and collection of sales tax to be based on the location of the
purchaser. Thus, Audrey’s calculation of the sales tax was
correct only if the purchaser and the fashion retailer were
located in the same jurisdiction or jurisdictions with the
same sales tax rate. 1
At some point in Audrey’s infancy, LuLaRoe
implemented a toggle switch to ameliorate this problem.
The toggle switch allowed fashion retailers using Audrey to
override the automatic calculation of sales tax and to input
the retailer’s calculation of the amount of sales tax, including
zero. However, there is no evidence in the record that
fashion retailers had training in calculating sales tax, and
there is evidence that fashion retailers frequently misused the
toggle switch to remove properly assessed sales tax or to add
an unnecessary additional sales tax.
In January 2016, LuLaRoe discovered that the toggle
switch had caused LuLaRoe to pay more sales tax to local
jurisdictions than was being collected from purchasers
because Audrey was programmed to send the same amount
of sales tax to local jurisdictions whether or not the toggle
switch was used to charge a different amount to the
1
The sales tax rate can depend on the state, county, and/or municipality
of the purchaser. “Over 10,000 jurisdictions levy sales taxes, each with
different tax rates, different rules governing tax-exempt goods and
services, different product category definitions, and different standards
for determining whether an out-of-state seller has a substantial presence
in the jurisdiction.” South Dakota v. Wayfair Inc., 138 S. Ct. 2080, 2103
(2018) (Roberts, C.J., dissenting) (internal citations omitted).
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purchaser. In April 2016, LuLaRoe responded by disabling
the toggle switch. As a result, all fashion retailers who used
Audrey were required to use Audrey’s calculation of the
sales tax even if the purchaser was located in a jurisdiction
with a different sales tax rate or no tax at all.
All told, the 10,606 Alaskan plaintiffs in this case 2 made
72,373 separate purchases in which sales tax was improperly
assessed, with LuLaRoe collecting a total of $255,263.72 in
purported sales tax.
LuLaRoe identifies two factual complications which
arose in the administration of Audrey’s sales tax regime and
which LuLaRoe believes require an individualized
consideration of each transaction.
First, LuLaRoe asserts that a significant number of
fashion retailers—who retained full control over pricing and
discounts—provided a discount to purchasers in an amount
equal to or greater than the amount of improperly assessed
sales tax, or provided purchasers with coupons for future
LuLaRoe purchases in an amount equal to or greater than the
amount of improperly assessed sales tax. As a result, those
customers did not suffer any injury from LuLaRoe’s sales
tax practice.
It is unclear how widespread this practice was. Fashion
retailers discounted 13,680 of the 72,373 Alaskan
transactions at issue, but it is not clear whether or to what
extent the discounts were intended to, and had, offset any
improperly assessed sales tax. Some fashion retailers
2
This number is calculated using the number of unique email addresses
used in purchases of LuLaRoe products in which the product was
shipped to a jurisdiction in Alaska where the sales tax should have been
zero, but nonetheless Audrey had added a sales tax amount, not zero.
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annotated the Audrey receipt with language stating that the
discount was intended to offset the sales tax, some fashion
retailers annotated the Audrey receipt with language
acknowledging the improper invoicing of sales tax but not
explicitly stating that the discount was intended to offset the
sales tax, and some fashion retailers applied a discount
without providing any explanation for the discount. Some
of these unexplained discounts discounted the price by the
exact amount, or nearly the exact amount, of the improperly
assessed sales tax.
Second, LuLaRoe asserts that a significant number of
fashion retailers explained the improper collection of sales
tax to purchasers before the purchasers made any purchase.
LuLaRoe claims that a significant number of class members
thus do not have a meritorious claim under Alaska law
because they were not deceived by LuLaRoe’s business
practices. The extent of this practice is likewise unclear.
Some invoices submitted by LuLaRoe include notations
seeming to indicate that the consumer discussed the sales tax
issue with the fashion retailer. However, every invoice
which includes such a notation involved a discounted
transaction. LuLaRoe also submitted four declarations from
fashion retailers, each of which included the following
language or similar language:
[S]ome consumers who reside in states that
do not charge sales tax on clothing, such as
Alaska, complained about or objected to sales
tax being added to their purchases. When this
occurred, I usually informed them that it was
LuLaRoe’s policy to calculate, collect, and
remit sales tax on all Audrey online
purchases based on the Retailer’s state and
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local tax laws . . . . I generally recall that
some customers did not complete their
purchase because of the sales tax, while
others completed their purchase and paid the
sales tax despite their objection to being
charged sales tax. On some occasions, the
customer either asked for a discount to offset
the sales tax or I provided the discount to
offset the sales tax on my own.
In February 2017, LuLaRoe purchasers filed a lawsuit in
the United States District Court for the Western District of
Pennsylvania on behalf of a putative class of purchasers who
were charged sales tax on LuLaRoe purchases. The putative
class included purchasers who resided in various
jurisdictions across eleven states, including Alaska, where
there existed no sales tax on LuLaRoe products.
In May 2017, LuLaRoe transitioned to a new point-of-
sale system, which resolved the sales-tax issues. Beginning
in March 2017 and through June 2017, LuLaRoe issued
refunds for all charges improperly collected as sales tax.
However, LuLaRoe did not pay any interest that might have
accrued between the time of the purchase to the time of
refund.
In August 2018, the Pennsylvania court denied class
certification because of the variations in state laws
applicable across the putative class.
B. Procedural History
In September 2018, Katie Van filed this class action on
behalf of all Alaskans who were improperly charged a sales
tax on LuLaRoe purchases. Van is an Alaskan and was a
prolific purchaser of LuLaRoe products. From Spring 2016
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to Fall 2017, Van purchased about $10,000 worth of
LuLaRoe merchandise and paid $531.25 in improperly
collected sales tax.
Van filed an amended complaint within days of her
original complaint. LuLaRoe moved to dismiss Van’s
amended complaint on various grounds. The district court
granted the motion to dismiss on the grounds that the class
members lacked standing—reasoning that, because the class
has already been compensated for the improperly collected
sales tax, the remaining injury suffered by the class was “too
trifling of an injury to support constitutional standing.” Van
v. LLR, Inc., No. 3:18-CV-0197-HRH, 2019 WL 1005181,
at *6 (D. Alaska Mar. 1, 2019) (quoting Skaff v. Meridien N.
Am. Beverly Hills, LLC, 506 F.3d 832, 840 (9th Cir. 2007)
(per curiam)). The district court, using an interest rate of
4.35% per year, calculated that Van’s purchases of about
$10,000 of LuLaRoe merchandise and improper payment of
$531.25 in sales tax had resulted in only $3.76 in lost interest
as Van’s remaining injury. Id.
Van appealed and we reversed, holding that “[t]he
district court erred by concluding that $3.76 is too little to
support Article III standing.” Van v. LLR, Inc., 962 F.3d
1160, 1162 (9th Cir. 2020) (quotation marks omitted). We
reasoned that, “[f]or standing purposes, a loss of even a small
amount of money is ordinarily an ‘injury.’” Id. (quoting
Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 464
(2017)). We remarked that “[a]ny monetary loss suffered by
the plaintiff satisfies the injury in fact element; even a small
financial loss suffices.” Id. (alterations adopted) (quotation
marks omitted) (quoting Carter v. HealthPort Techs., LLC,
822 F.3d 47, 55 (2d Cir. 2016)).
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On remand, the district court vacated its order and
addressed the remaining grounds in the motion to dismiss.
The district court dismissed one of the two claims in the
complaint but granted Van leave to amend. Van
subsequently filed a second amended complaint, which is
now the operative pleading.
Van brings two claims in her second amended complaint.
Van’s first claim alleges that LuLaRoe violated the Alaska
Unfair Trade Practices and Consumer Protection Act, Alaska
Stat. § 45.50.471, et seq. (“UTPCPA”). The UTPCPA
prohibits, inter alia, unfair or deceptive acts or practices in
the conduct of trade or commerce. § 45.50.471(a). The
UTPCPA authorizes a private right of action for any person
“who suffers an ascertainable loss of money or property” as
a result of an unfair or deceptive act or practice, and sets
statutory damages “for each unlawful act or practice [at]
three times the actual damages or $500, whichever is
greater.” § 45.50.531(a). Van’s second claim asserts that
LuLaRoe’s business practices amounted to conversion and
misappropriation under Alaska common law.
LuLaRoe moved to dismiss Van’s second amended
complaint, but the district court denied the motion to
dismiss. LuLaRoe then answered Van’s complaint,
asserting various affirmative defenses.
In January 2021, Van moved to strike the twentieth
affirmative defense asserted in LuLaRoe’s complaint, which
defense asserted that Van’s and the class’s claims were
barred “under the voluntary payment doctrine.” Van argued
that the voluntary payment doctrine is not recognized under
Alaska law and is contrary to the provisions of the UTPCPA.
The district court granted the motion and struck the defense
as it pertains to the UTPCPA claims.
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Van then moved for class certification. Van proposed
the following class definition: “All persons who paid ‘tax’
on a purchase of LuLaRoe products and whose purchase was
delivered into a location in Alaska that does not assess a
sales or use tax on the clothing that LuLaRoe sells.” Van’s
motion for class certification sought to pursue only the
UTPCPA claims in a class setting. After oral argument, the
district court granted the motion, certified the proposed
class, and appointed Van’s attorneys as class counsel.
LuLaRoe petitioned the Ninth Circuit pursuant to Rule
23(f) of the Federal Rules of Civil Procedure for permission
to appeal the certification order. A motions panel granted
permission to appeal.
II. STANDARD OF REVIEW
A district court’s grant or denial of class certification is
reviewed for abuse of discretion. Sandoval v. Cnty. of
Sonoma, 912 F.3d 509, 515 (9th Cir. 2018). A class
certification order is an abuse of discretion if the district
court applied an incorrect legal rule or if its application of
the correct legal rule was based on a “factual finding that was
illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc);
Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1164 (9th Cir.
2014).
Any underlying determinations of law are reviewed de
novo, Yokoyama v. Midland Nat. Life Ins. Co., 594 F.3d
1087, 1091 (9th Cir. 2010), and any underlying
determinations of fact are reviewed for clear error. Senne v.
Kansas City Royals Baseball Corp., 934 F.3d 918, 926 (9th
Cir. 2019).
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We generally accord more deference to a district court’s
grant of class certification as opposed to a district court’s
denial of class certification. Id.; Parsons v. Ryan, 754 F.3d
657, 673 (9th Cir. 2014).
III. DISCUSSION
Class certification is governed by Rule 23 of the Federal
Rules of Civil Procedure. Under Rule 23, a class action may
be maintained if the four prerequisites of Rule 23(a) are met,
and the action meets one of the three kinds of actions listed
in Rule 23(b). The parties here primarily debate whether
“the questions of law or fact common to class members
predominate over any questions affecting only individual
members,” as required for the action to be brought under
Rule 23(b)(3). 3 Specifically, LuLaRoe argues that class
certification was improper because individualized issues
predominate over class issues.
LuLaRoe identifies the following individualized issues
that LuLaRoe believes predominate over class issues and
made class adjudication improper: (1) LuLaRoe’s refunding
the improperly assessed sales tax leaves most of the class
with only a miniscule remaining injury, which is “too
trifling” to support Article III standing for many class
members; (2) some purchasers knew that the sales tax charge
was improper but nevertheless voluntarily paid the invoice
which contained the improperly assessed sales tax amount,
and thus, under applicable Alaska law, no deceptive practice
caused any injury for these purchasers; and (3) some
purchasers received discounts from retailers to offset the
3
No party argues that this case meets the requirements of Rule 23(b)(1)
or (b)(2).
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improperly assessed sales tax and thus suffered no loss. 4 We
address each argument in turn.
First, a word on the Alaska statute at issue here: The
UTPCPA has a fairly simple structure. The first section
declares certain trade practices, including “using or
employing . . . fraud,” to be unlawful. Alaska Stat. §
45.50.471. Subsequent sections empower the Alaska
Attorney General to regulate, § 45.50.491, and to investigate
such conduct, § 45.50.495. The Alaska Attorney General
can also bring suit against individuals who engage in
prohibited trade practices, seeking injunctive relief, §
45.50.501, and/or civil penalties, § 45.50.551. See, e.g.,
State v. O’Neill Investigations, Inc., 609 P.2d 520, 534
(Alaska 1980) (a suit by the Alaska Attorney General under
the UTPCPA).
Other sections of the statute permit individual and class
actions for money damages and injunctive relief. Prior
rejection of suit on the claim by the Alaska Attorney General
is not a prerequisite. Private suits for injunctive relief are
4
LuLaRoe’s opening brief contained a fourth argument, which LuLaRoe
declined to press at oral argument: LuLaRoe’s brief argued that its
voluntary refund program was a superior method of resolving the class
members’ claims, and that Van is accordingly an inadequate
representative for pursuing class litigation on behalf of the class. See
Fed. R. Civ. P. 23(a)(4), (b)(3). We reject this argument. Rule 23 asks
whether the class action format is superior to other methods of
adjudication, not whether a class action is superior to other methods of
compensating victims. Because a voluntary refund program, such as that
undertaken by LuLaRoe, is not a method for “adjudicating” the
controversy between LuLaRoe and its customers, it is irrelevant to the
superiority analysis under Rule 23(b)(3). Further, Van did not have a
choice between “accepting” the refund or pursuing class litigation
because the refund was complete before Van filed suit.
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available to “any person who was the victim of the unlawful
act, whether or not the person suffered actual damages.” §
45.50.535. However, private plaintiffs seeking money
damages must demonstrate that they “suffer[ed] an
ascertainable loss of money or property as a result of another
person’s act or practice declared unlawful by [the first
section of the UTPCPA.]” § 45.50.531. In suits for money
damages, private plaintiffs can “recover for each unlawful
act or practice three times the actual damages or $500,
whichever is greater.” Id.
A. Whether Class Members Who Suffered Small
Injuries Lack Standing
To establish standing under Article III of the
Constitution, a plaintiff must show that he has “(1) suffered
an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Gill v. Whitford,
138 S. Ct. 1916, 1929 (2018) (quoting Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016)). An “injury in fact” is
“an invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992) (citations and internal quotation marks
omitted). At issue here is whether the small amount of
money currently owed to some class members is sufficiently
concrete to support standing. The key issue for concreteness
is whether the injury “actually exist[s]”—whether it can be
described as “real.” Spokeo, 578 U.S. at 340.
“Article III standing requires a concrete injury even in
the context of a statutory violation.” Id. at 341. In other
words, even though the plaintiffs in this case are seeking $36
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million in statutory damages, we must still ensure that
plaintiffs are seeking to vindicate a concrete injury.
After LuLaRoe refunded all money that was improperly
collected as sales tax, the only remaining injury suffered by
class members for which they remain uncompensated is “the
lost time value of money” for the period between the
improper charge and the refund. Interest is used as a proxy
for and method of quantifying this injury. See Van, 962 F.3d
at 1165 (“Interest is simply a way of measuring and
remedying Van’s injury, not the injury itself.”).
It is not disputed that a significant number of class
members were deprived of a negligible amount of money
and/or were deprived of money for only a negligible amount
of time. It is not disputed that 101 class members are owed
less than $0.01 in interest, 230 are owed $0.01 in interest,
447 are owed $0.02 in interest, 457 are owed $0.03 in
interest, 434 are owed $0.04 in interest, and 357 are owed
$0.05 in interest. This represents 2,041 of the 10,369 class
members. LuLaRoe argues that these class members lack
standing under Article III of the Constitution and their
presence in the class makes individualized issues
predominate over class issues.
In our previous decision, we held that “the temporary
loss of use of one’s money constitutes an injury in fact for
purposes of Article III.” Id. at 1164. The question now is
whether the loss can be for such a short amount of time or
involving such a small amount of money that the loss is “too
trifling” to be a concrete injury. We answer that question:
No. As we held in our previous decision, “a loss of even a
small amount of money is ordinarily an ‘injury,’” id. at 1162
(quoting Czyzewski, 580 U.S. at 464), and “[a]ny monetary
loss suffered by the plaintiff satisfies the injury in fact
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element,” id. (quoting Carter, 822 F.3d at 55) (alteration
adopted). Today, we reaffirm this language. Any monetary
loss, even one as small as a fraction of a cent, is sufficient to
support standing. See TransUnion LLC v. Ramirez, 141
S.Ct. 2190, 2204 (2021) (“If a defendant has caused physical
or monetary injury to the plaintiff, the plaintiff has suffered
a concrete injury in fact under Article III.”). 5 Thus, the
presence of class members who suffered only a fraction of a
cent of harm does not create an individualized issue that
could predominate over class issues. 6
B. Whether Class Certification Should Be Reversed
Because Some Class Members Voluntarily Paid the
Sales Tax
LuLaRoe argues that some fashion retailers explained
the sales tax situation to purchasers before the purchasers
paid the improperly assessed sales tax. LuLaRoe argues that
some purchasers therefore lack a meritorious claim because
they were not deceived by LuLaRoe’s sales tax practices and
instead voluntarily completed the transaction and paid the
improperly assessed sales tax. LuLaRoe argues that the
purchaser-by-purchaser assessment of the voluntariness of
5
Our decision in Skaff v. Meridien North American Beverly Hills, LLC,
506 F.3d 832 (9th Cir. 2007) (per curiam), is inapposite because it did
not address whether a small financial injury is a legally cognizable harm.
6
LuLaRoe suggests in its opening brief (and argues in its reply brief)
that the small losses suffered by some class members may be insufficient
for statutory standing under Alaska law because the UTPCPA permits a
private right of action to be brought under its terms only by individuals
who have suffered “an ascertainable loss.” Alaska Stat. § 45.50.531(a).
However, the Alaska Supreme Court has held that a loss can be
“ascertainable” for UTPCPA purposes even if it is nominal or
speculative. See Jones v. Westbrook, 379 P.3d 963, 970 n.39 (Alaska
2016).
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the payments makes individualized issues predominate over
class issues.
Van provides two alternative reasons for rejecting this
argument. First, Van argues that the voluntary payment
doctrine defense was resolved in the motion to strike, not the
motion for class certification, and the district court’s
rejection of the defense is thus outside the scope of the Ninth
Circuit’s current appellate jurisdiction. Second, Van argues
that the district court’s rejection of the voluntary payment
doctrine defense was correct.
1. We Have Jurisdiction to Consider the Issue of Voluntary
Payment
“Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial decree.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994) (citations omitted). The courts of appeals are no
exception. Not only are we constrained in the types of cases
we may decide, but we are also constrained in the types of
orders we may review.
“In general, we may review only final judgments of a
district court on appeal.” Cunningham v. Gates, 229 F.3d
1271, 1283 (9th Cir. 2000). However, Congress has
permitted a limited category of nonfinal orders, called
“interlocutory” orders, to be appealed before entry of final
judgment. In 28 U.S.C. § 1292(e), Congress permitted the
Supreme Court to prescribe rules defining interlocutory
orders that may be immediately appealed. Rule 23(f) of the
Federal Rules of Civil Procedure, which permits an appeal
from an order granting or denying class certification, is one
such rule. The district court’s order which granted class
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certification in this case meets the requirements for
immediate appeal. 7
So the issue properly before us is whether the district
court was correct to grant class certification against
LuLaRoe. Under certain circumstances, an appellate court
reviewing an interlocutory decision may also extend its
reach to other orders that are “inextricably intertwined with”
or “necessary to ensure meaningful review of” the properly
appealable decision. See K.W. ex rel. D.W. v. Armstrong,
789 F.3d 962, 975 (9th Cir. 2015). However, an exercise of
such “pendent appellate jurisdiction” is not necessary in this
case.
We have jurisdiction to review issues “that form part of
the district court’s class certification decision,” Moser v.
Benefytt, Inc., 8 F.4th 872, 875 (9th Cir. 2021), and
“anything that properly enters the determination whether to
certify a class is bound up with the order,” id. (quoting 16
Charles A. Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3931.1 (3d ed. Apr. 2021
Update)). The issue raised by LuLaRoe on appeal is both
factually and legally part of the district court’s class
certification decision.
As a factual matter, LuLaRoe re-raised the issue in the
certification briefing and the issue was re-addressed by the
district court at the certification stage, albeit cursorily and by
reference to its previous decision. Thus, the issue formed a
part of the class certification decision, even though it also
7
Rule 23(f) requires a party seeking appeal under its provisions to
receive permission from the court of appeals before doing so, a
precondition which LuLaRoe satisfied.
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formed a part of the decision resolving Van’s motion to
strike.
As a legal matter, the Supreme Court has made clear that
the predominance question “trains on the legal and factual
questions that qualify each class member’s case.” Amchem
Prod., Inc. v. Windsor, 521 U.S. 591, 623 (1997). The
Supreme Court has specifically noted that varying
applicability of state law defenses can defeat predominance.
Id. at 625; see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 367 (2011). The validity and prevalence of state law
defenses must be considered in the predominance inquiry.
Thus, the validity and prevalence of state law defenses
are not “‘pendent’ to the class certification decision, but
simply the class certification decision itself.” Moser, 8 F.4th
at 876; 8 see also Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009)
(holding that appellate jurisdiction extends to issues
“directly implicated by” the ruling under review); Hartman
v. Moore, 547 U.S. 250, 257 (2006) (same).
Because an assessment of the validity and prevalence of
state law issues, including the defense raised by LuLaRoe
here, is a necessary part of a class certification decision, the
mere fact that a district court addressed the issue in ruling on
a Rule 12 motion does not insulate the issue from appellate
review if the issue was re-briefed at the class certification
stage and therefore formed a part of the class certification
8
See also id. at 875 (“If the district court lacked personal jurisdiction
over non-California plaintiffs, that presents obvious reasons why, under
the Rule 23 requirements, certification of a nationwide class would be
improper. . . . The personal jurisdiction and waiver questions are thus
not ancillary to class certification, but central to the nationwide classes
that the district court certified and, again, part of the very class
certification decision we permitted [the defendant] to appeal.”).
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decision. 9 Because we have jurisdiction to review the class
certification decision, we have jurisdiction to review
LuLaRoe’s voluntary payment defense.
2. LuLaRoe Did Not Substantiate the Individualized Issue
of Voluntary Payment.
It is questionable whether a purchaser’s voluntary
payment of an improperly charged sales tax is a defense—
affirmative or otherwise—to a UTPCPA claim under Alaska
law. However, we need not delve into this murky area of
state law. Even assuming, arguendo, that such a defense is
valid under Alaska law, applies to the UTPCPA, and that the
communications by some retailers were sufficient to make
the defense applicable, LuLaRoe’s minimal proffers of
evidence supporting this defense were insufficient to raise
individualized questions that could predominate over the
common questions raised by Van.
9
The concurrence argues that we reached a contrary conclusion in Ruiz
Torres v. Mercer Canyons Inc., 835 F.3d 1125 (9th Cir. 2016). However,
Ruiz Torres reaffirmed that “we consider merits questions at the class
certification stage . . . to the extent they are relevant to whether Rule 23
requirements have been met.” Id. at 1133. The question of whether
LuLaRoe defeated predominance through its invocation of the voluntary
payment defense is undoubtedly relevant to the Rule 23 analysis.
Ruiz Torres is distinguishable from this case because the defendants in
Ruiz Torres did not re-raise the issue at the class certification stage.
Compare ECF No. 47 at 18–19, Ruiz Torres v. Mercer Canyons, Inc.,
No. 1:14-CV-3032 (E.D. Wash. November 17, 2014) (arguing, at the
summary judgment stage, that the defendants did not have a disclosure
duty), with ECF No. 99, Ruiz Torres v. Mercer Canyons, Inc., No. 1:14-
CV-3032 (E.D. Wash. February 20, 2015) (not making any such
argument at the class certification stage). An issue cannot “form part of
the district court’s class certification decision,” Moser, 8 F.4th at 875, if
it was never raised at the class certification stage.
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It is the plaintiff’s burden to prove that class issues
predominate. 10 See Olean Wholesale Grocery Cooperative,
Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 664–65 (9th
Cir. 2022) (en banc). However, a plaintiff need not rebut
every individualized issue that could possibly be raised. To
demand such proof would be akin to demanding proof “that
plaintiffs would win at trial.” Id. at 667.
Instead, a plaintiff must merely demonstrate by a
preponderance of the evidence that a common question of
law or fact exists—an issue that is capable of class-wide
resolution. In Olean, for example, we held that an expert
economist’s statistical regression model was “capable of
resolving a class-wide question in one stroke” in an antitrust
case because the statistical model was sufficient to be used
“as evidence of the conspiracy’s impact on similarly situated
class members.” Id. at 666, 675. Thus, the statistical model
and expert’s testimony generated common issues of fact.
If the plaintiff demonstrates that class issues exist, the
defendant must invoke individualized issues and provide
sufficient evidence that the individualized issues bar
recovery on at least some claims, thus raising the spectre of
class-member-by-class-member adjudication of the issue.
See True Health Chiropractic, Inc. v. McKesson Corp., 896
F.3d 923, 932 (9th Cir. 2018) (“[W]e do not consider . . .
defenses that [the defendant] might advance or for which it
has presented no evidence.” (emphasis added)).
10
In this opinion, we write with the assumption that the plaintiff is the
party seeking class certification and the defendant is the party opposing
class certification. However, this analysis applies with equal force in the
unusual circumstances where a different party seeks or opposes class
certification.
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If the defendant provides evidence that a valid defense—
affirmative or otherwise—will bar recovery on some claims,
then the district court must determine, based on the particular
facts of the case, “whether individualized questions . . . ‘will
overwhelm common ones and render class certification
inappropriate under Rule 23(b)(3).’” Olean, 31 F.4th at 669
(quoting Halliburton Co. v. Erica P. John Fund, Inc., 573
U.S. 258, 276 (2014)). 11
As pertains to the voluntary payment issue raised by
LuLaRoe, LuLaRoe failed to provide sufficient evidence
that any class member would lack a meritorious claim on this
basis. Only a handful of Alaskan invoices submitted to the
district court demonstrate that the purchaser knew of the
sales tax issue before completing the purchase. And on each
of these invoices, the purchaser was provided a discount on
the transaction equal to or greater than the amount of
11
The question is not whether a great number of plaintiffs will win or
lose at trial on the individualized issue. Olean, 31 F.4th at 667. Rather,
the district court must assess the necessity and manageability of the
potential class-member-by-class-member discovery process and trial.
See generally Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare,
Inc., 863 F.3d 460, 468 (6th Cir. 2017); Gene And Gene LLC v. BioPay
LLC, 541 F.3d 318, 326 (5th Cir. 2008). On the one hand, if the
discovery and trial process must assess thousands of claims one claim at
a time, then the individualized issue will weigh heavy in the
predominance balancing. On the other hand, if the district court
determines that the individualized issue is limited to a small number of
class members or will otherwise be simple to investigate and present at
trial, the district court might reasonably certify the class in the face of
the individualized issue. See Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.
442, 453 (2016). When making this assessment, the district court should
keep in mind that the plaintiff bears the burden of proving that class
issues predominate over individualized issues. See Olean, 31 F.4th at
664–65.
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improper sales tax, with at least some of the discounts
provided for the express purpose of offsetting the sales tax.
As LuLaRoe has vigorously argued in this appeal, any
purchaser who received a discount, especially those
purchasers who discussed the sales tax issue with the fashion
retailer, may have received the discount for the purpose of
offsetting the improper sales tax. And, as discussed below,
any purchaser who received a discount in an amount greater
than or equal to the improper sales tax for the purpose of
offsetting the sales tax never paid the improper tax at all.
Because these purchasers did not pay the sales tax, or at
least their invoices do not demonstrate that they paid the
sales tax, their invoices are not sufficient evidence that any
class member knew of the sales tax and then paid it. The
invoices, then, are not sufficient evidence that the
individualized issue of voluntary payment bars recovery on
at least some claims.
The fashion retailer declarations suffer from the same
problem. Although the declarations generally assert that
some consumers across the country were told of the sales tax
issue, the declarations do not state with certainty that any
member of this Alaska class was informed of the nature of
the improper sales tax, was not provided a discount, and paid
the sales tax nonetheless.
We do not permit a defendant to support its invocation
of individualized issues with mere speculation. See True
Health, 896 F.3d at 932. LuLaRoe’s scant evidence of
voluntary payment is not sufficient to defeat predominance.
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C. Whether Class Certification Should Be Reversed
Because Some Fashion Retailers Offset the Tax Via
Individual Discounts
Both parties and the district court agree that any class
member who received a discount in an amount greater than
or equal to the improper sales tax for the purpose of
offsetting the improper sales tax has no claim against
LuLaRoe. 12 LuLaRoe provided evidence that at least
eighteen of the 13,680 discounts provided to class members
were provided for the purpose of offsetting the improperly
assessed sales tax. However, the district court certified the
class nonetheless because it held that “the number of
proposed class members for whom it can presently be
determined received a discount to offset the sales tax being
billed is de minim[i]s.” 13
12
At first glance, this issue might seem to be one of state law: Because
these class members received a discount to offset the improperly
assessed sales tax, they lack a claim under the UTPCPA because the
UTPCPA requires an “ascertainable loss.” Even if a class contains some
individuals who lack a meritorious claim for damages under state law,
the class may still be certified so long as the class issues predominate
over the administrability burden that will be required to identify such
individuals. See Olean, 31 F.4th at 669; see also Halliburton Co. v. Erica
P. John Fund, Inc., 573 U.S. 258, 276 (2014).
However, this issue also takes on a constitutional dimension: If these
class members have not suffered any loss or injury, they also lack Article
III standing. “The Supreme Court expressly held open the question
‘whether every class member must demonstrate standing before a court
certifies a class.’” Olean, 31 F.4th at 682 n.32 (quoting TransUnion, 141
S. Ct. at 2208 n.8) (emphasis omitted). We need not answer that question
in this appeal, but the district court may be required to address the issue
on remand.
The district court failed to cite or discuss one of LuLaRoe’s exhibits,
13
which included at least eighteen examples where an Alaska customer
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The district court’s analysis rests on a misunderstanding
of the Rule 23 inquiry. Rule 23 does not demand proof of
who will win or lose at trial. See Olean, 31 F.4th at 667.
LuLaRoe invoked an individualized issue—that retailer
discounts left some class members uninjured—and provided
evidence that at least some class members lack meritorious
claims because of this issue, thus summoning the spectre of
class-member-by-class-member adjudication.
13,680 discounts were provided to class members.
LuLaRoe’s evidence, even though it consisted of only a
small number of invoices, was sufficient to prove that an
inquiry into the circumstances and motivations behind each
of the 13,680 discounts might be necessary. This inquiry,
which could potentially involve up to 13,680 depositions and
months of trial, certainly cannot be described as de minimis.
When a defendant substantiates such an individualized
issue in this way, the district court must determine whether
the plaintiff has proven by a preponderance of the evidence
that the questions of law or fact common to class members
was provided a discount for the express purpose of offsetting the
improperly assessed sales tax. Because the exhibit included more than
two examples where the discount was provided for the express purpose
of offsetting the sales tax, the district court’s conclusion that “only two
[invoices] expressly stated that the discount being provided was to offset
the sales tax being billed” was clearly erroneous. Nonetheless, the
factual error is insignificant compared to the legal error; whether
LuLaRoe provided two or eighteen examples, LuLaRoe had
substantiated the individualized issue—that is, LuLaRoe’s exhibits
demonstrated that at least some purchasers lack meritorious claims
because they were provided a discount that left them uninjured. The
district court was required to assess whether Van had met her burden of
proving that the questions of law or fact common to class members
predominate over any questions affecting only individual members.
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predominate over any questions affecting only individual
members—that is, whether a class-member-by-class-
member assessment of the individualized issue will be
unnecessary or workable. See, e.g., Bowerman v. Field Asset
Services, Inc., No. 18-16303, slip op. at 19–24 (9th Cir. Feb.
14, 2023) (ordering the de-certification of a class action
where the trial of the individualized issues would be
“prohibitively cumbersome” and the plaintiff had failed to
prove that the class issues nevertheless predominated over
the individualized issues).
IV. CONCLUSION
For the reasons stated above, we vacate the district
court’s order granting class certification and remand for
further proceedings. On remand, the district court should re-
assess whether Van has met her burden of proving by a
preponderance of the evidence that common issues
predominate over questions affecting only individual
members.
Each party shall bear its own costs for this appeal.
VACATED AND REMANDED.
CHRISTEN, Circuit Judge, concurring in part and
concurring in the judgment:
I agree with my colleagues that class members who
suffered negligible losses of money, or who were deprived
of their money for negligible periods of time, suffered
concrete injuries sufficient for Article III standing. I also
agree with the majority that LuLaRoe did not show that
individualized questions related to its voluntary payment
defense will predominate over common questions, and that
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remand is necessary because it appears the district court may
have overlooked LuLaRoe’s Exhibit E. That exhibit showed
eighteen transactions with customers in Alaska who received
discounts for the express purpose of offsetting LuLaRoe’s
improperly assessed sales tax.
I write separately to briefly address the majority’s
conclusion that we have interlocutory jurisdiction to
consider the voluntary payment issue merely because
LuLaRoe re-briefed this previously rejected defense at the
class certification stage, and to address the majority’s
impression that the district court somehow misunderstood
the way Rule 23 operates when it considered LuLaRoe’s
evidence that some fashion retailers offset the sales tax with
discounts. In my view, it is plain the district court was aware
that retailers gave discounts for many reasons and that the
relevant issue for purposes of class certification concerned
the number of uninjured prospective class members, not the
number of transactions. I agree that remand is required, but
only because the district court appears to have overlooked an
exhibit, and we cannot say that the failure to consider it was
harmless.
A.
Pre-class certification, the district court granted Van’s
motion to strike LuLaRoe’s “voluntary payment” defense.
LuLaRoe re-raised the voluntary payment doctrine in its
opposition to class certification and argued that plaintiffs
who knowingly paid LuLaRoe’s unwarranted sales tax did
not suffer an “ascertainable loss” within the meaning of the
Alaska Unfair Trade Practices and Consumer Protection Act
(UTPCPA). In its order granting class certification, the
district court reasoned that LuLaRoe’s ascertainable loss
argument was “largely a recast” of the voluntary payment
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defense that the court had previously considered and
rejected. In the process of rejecting all of LuLaRoe’s
arguments in opposition to class certification, the court
reiterated its prior ruling striking the voluntary payment
defense.
Our jurisdiction on interlocutory appeal from an order
granting or denying class certification is limited to the class
certification order. See, e.g., Stockwell v. City & County of
San Francisco, 749 F.3d 1107, 1113 (9th Cir. 2014) (“We
must police the bounds of our jurisdiction vigorously here as
elsewhere, and so may not ourselves venture into merits
issues unnecessary to the Rule 23 issue before us.” (citation
omitted)). We have previously rejected litigants’ attempts to
slip prior rulings into a Rule 23(f) appeal through the
backdoor. For example, in Ruiz Torres v. Mercer Canyons
Inc., we declined an invitation to review a party’s recycled
arguments:
Mercer argues that the district court
“committed a per se abuse of discretion by
misinterpreting the substantive law
governing plaintiffs’ claims, which led it to
divine common issues.” This is essentially
the same argument made by Mercer in its
motion for summary judgment . . . . To
resolve this question at the class certification
stage would provide Mercer the sort of
interlocutory review of the summary
judgment order that the district court had
declined to certify.
835 F.3d 1125, 1133 (9th Cir. 2016). Ruiz Torres explained
that on interlocutory review from a class certification order,
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we reach merits issues “only to the extent they are relevant
to whether Rule 23 requirements have been met.” Id.
(emphasis added). We are not alone in narrowly construing
our interlocutory jurisdiction in Rule 23(f) appeals. See, e.g.,
CGC Holding Co. v. Broad & Cassel, 773 F.3d 1076, 1098
(10th Cir. 2014) (“Rule 23 does not permit a party to
shoehorn every decision that went against it into its petition
for interlocutory review.”); In re Lorazepam & Clorazepate
Antitrust Litig., 289 F.3d 98, 107 (D.C. Cir. 2002) (“Mylan’s
effort to recast its Rule 12(b)(6) arguments as a challenge to
class certification on the ground that a class of direct
purchasers lacks antitrust standing, is to no avail. . . .
[R]eview of such issues would expand Rule 23(f)
interlocutory review to include review of any question raised
in a motion to dismiss that may potentially dispose of a
lawsuit as to the class as a whole.”).
The majority invokes our decision in Moser v. Benefytt,
Inc., 8 F.4th 872 (9th Cir. 2021), but Moser does not expand
our interlocutory review beyond the class certification order.
In Moser, a defendant opposing class certification argued
that the district court could not certify a class of the requested
scope because the court lacked personal jurisdiction over the
non-California residents. Id. at 874. There was no dispute
the district court had personal jurisdiction over the named
plaintiff, so the defendant never filed a motion to dismiss at
the 12(b)(2) stage. Id. The district court certified the
requested class and ruled that the defendant waived its
personal jurisdiction argument by not raising it in its Rule
12(b)(2) motion. Id. We reversed. In doing so, Moser
explained that consideration of the waiver and personal
jurisdiction issues was permissible on interlocutory appeal
in that case because “we [we]re not being asked to review
anything ‘pendent’ to the class certification decision, but
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simply the class certification decision itself.” Id. at 876.
Indeed, on the merits, we concluded that the defendant could
not have raised its personal jurisdiction objection concerning
the non-resident putative class members until the plaintiff
moved to certify a class that included them. Id. at 877–78.
An issue is not “bound up” within a class certification
order merely because a party re-raises a previously litigated
issue in its class certification briefing and the district court
addresses that issue “cursorily and by reference to its
previous decision.” Here, although it is a close question, I
conclude we have interlocutory jurisdiction to review the
voluntary payment defense because the district court’s order
was not entirely limited to reiterating its prior ruling when
rejecting LuLaRoe’s ascertainable loss argument—even if
that argument was, per the district court’s description,
“largely a recast” of the voluntary payment defense.
Nevertheless, as the majority opinion explains, the evidence
LuLaRoe proffered in support of this defense was
insufficient because it showed only that an unspecified
number—“some”—individuals voluntarily paid LuLaRoe’s
improperly assessed tax. 1
B.
I agree with my colleagues that remand is required.
LuLaRoe submitted two exhibits with invoices reflecting
discounts that retailers gave to purchasers. Invoices in the
1
The majority suggests it is questionable whether a purchaser’s
voluntary payment of an improperly charged sales tax is a defense to a
UTPCPA claim under Alaska law. The majority’s description is
charitable. There is no indication that the voluntary payment doctrine
has ever been applied in a case involving the Alaska UTPCPA, and as
far as I can tell, no other state that has adopted this uniform code has
recognized the voluntary payment doctrine as a defense.
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first exhibit show transactions in which fashion retailers
provided discounts to customers and expressly noted that the
discounts were intended to offset LuLaRoe’s improperly
assessed sales tax. Invoices in the second exhibit reflected
transactions in which the retailers provided discounts that
were equal, or roughly equal, to the amount of sales tax that
had been improperly assessed, but the retailers did not
expressly note on the invoices that the discounts were meant
to offset the sales tax. The district court found that LuLaRoe
retailers gave discounts “for a variety of reasons” and many
of the discounts may not have been to “offset the sales tax .
. . being billed, but they may have been for another reason
entirely.” We defer to the district court’s factual findings
unless they are clearly erroneous. See Sali v. Corona Reg’l
Med. Ctr., 909 F.3d 996, 1002 (9th Cir. 2018).
Because the district court did not cite or discuss
LuLaRoe’s first exhibit, the record suggests that the court
may have considered only the second exhibit, which
contained two examples in which an Alaska customer was
provided a discount to offset the improperly charged sales
tax. The first exhibit appears to contain at least eighteen
instances in which an Alaska customer was provided a
discount for the express purpose of offsetting the improperly
assessed sale tax. Assuming the district court overlooked
this exhibit, I cannot say that the district court’s error was
harmless, and I agree with my colleagues that remand is
required so the district court may consider it.
I do not agree with the majority’s suggestion that the trial
court misunderstood the Rule 23 inquiry or that LuLaRoe’s
evidence suggested up to 13,680 depositions and months of
trial might be required. The evidence LuLaRoe submitted
in opposition to class certification showed that roughly
10,000 Alaska class members made 72,373 separate
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purchase transactions with improper sales tax charges. But
4,295 class members made only one purchase—meaning
that 94 percent of the 72,373 transactions with improper
sales tax charges involved purchasers who entered into
multiple transactions. The fact that 13,680 transactions were
discounted does not mean that a significant number of
putative class members received discounts to offset
improper sales tax charges. The district court concluded “the
number of proposed class members for whom it can
presently be determined received a discount to offset the
sales tax being billed is de minimus,” but we cannot tell
whether the court considered Exhibit E when it made this
determination. That said, the district court has already found
that discounts were given for many reasons, and consumers
who received express discounts may nevertheless have
other, non-discounted transactions that make them eligible
members of the class. Contrary to the majority’s suggestion,
the district court recognized that individualized
determinations might be necessary.
Because the district court may have overlooked Exhibit
E, I concur in the remand and judgment.
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