Van v. LLR, Inc. et al

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KATIE VAN, individually and on behalf )
of all others similarly situated, )
)
Plaintiff, )
)
vs. )
)
LLR, INC., d/b/a LuLaRoe, and LULAROE, )
LLC, )
) No. 3:18-cv-0197-HRH
Defendants. )
_______________________________________)
O R D E R
Motion to Dismiss
Defendants move to dismiss plaintiff’s first amended class action complaint, or in the
alternative, to strike the class allegations in plaintiff’s first amended class action complaint.1
This motion is opposed.2 Oral argument was requested and has been heard.
Background
Defendants LLR, Inc., d/b/a LuLaRoe, and LuLaRoe, LLC “sell[] clothing through
fashion retailers located in all fifty states to consumers across the United States.”3 Plaintiff
1Docket No. 28.
2Docket No. 35.
3First Amended Class Action Complaint at 3, ¶ 7, Docket No. 4.
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Katie Van alleges that she “made purchases from LuLaRoe retailers in other states and had
those purchases shipped to her home in Anchorage, Alaska.”4 Plaintiff alleges that she was
improperly charged sales tax “on purchases she made from LuLaRoe’s remote consultants.”5
Alaska does not have a state-wide sales tax, although some local jurisdictions impose a sales
and/or use tax.6 Plaintiff alleges that defendants improperly charged sales tax “on at least
72,503 sales transactions shipped into non-taxing jurisdictions in Alaska from April 2016
through June 1, 2017.”7
Plaintiff alleges that defendants began improperly charging sales tax in 2016 after it
was discovered that “LuLaRoe was paying sales tax on all sales regardless of whether or not
the end consumer was charged or paid sales tax on a transaction. . . .”8 Plaintiff alleges that
this happened because of the way that defendants’ point-of-sale system, which was called
“Audrey,” was programmed.9 Plaintiff alleges that in response to this discovery, defendants,
in April 2016, implemented a new sales tax policy, which was that “Audrey would be
4Id. at 10, ¶ 56.
5Id. at 10, ¶ 57.
6Id. at 4, ¶ 19.
7Id. at 11, ¶ 67.
8Id. at 5, ¶ 28. Plaintiff alleges that defendants “collect[] and remit[] sales tax on
behalf of its retailers.” Id. at 4, ¶ 18.
9Id. at 3, ¶ 11; 5, ¶ 28. Plaintiff alleges that defendants began using Audrey in May
or June 2015. Id. at 5, ¶ 25.
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collecting tax from end consumers based upon the retailer location[.]”10 Plaintiff alleges that
defendants “altered the Audrey POS to prevent retailers from turning off the sales tax
features when making sales delivered into other states with no sales tax[.]”11
Plaintiff alleges that defendants “told [their] retailers that the policy [they]
implemented, requiring that tax be charged based upon the location of the retailer, was proper
and legal.”12 Defendants explained that the option of collecting sales tax based on the
retailer’s location “recognize[d] that sufficient ‘nexus’ exists between the consultant’s state,
the consultant, and LuLaRoe so that the consultant’s customer is doing business with
LuLaRoe through the consultant.”13 Plaintiff alleges, however, that defendants knew their
2016 tax policy was not legal.14
Plaintiff alleges that defendants “announced its new tax policy via webinar and
conference call[s.]”15 Defendants told the LuLaRoe retailers that sales tax would be
collected based on the retailer’s location “for a short time” and that they would “shift” to the
10Id. at 6, ¶ 30.
11Id. at 6, ¶ 33. Plaintiff alleges that “[p]rior to April 2016, the Audrey system
included a toggle-switch, which permitted LuLaRoe’s retailers to turn off tax charges when
they made a sale into a tax-free jurisdiction[.]” Id. at 5, ¶ 26.
12Id. at 7, ¶ 40.
13Sales Tax Update, Exhibit 2 at 39, Defendants’ Request for Judicial Notice [etc.],
Docket No. 26.
14First Amended Class Action Complaint at 8, ¶¶ 42, 47, Docket No. 4.
15Id. at 6, ¶ 30.
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option of collecting “sales tax based on the physical address where the sale takes place . . .
or where the products are shipped to a customer . . . [i]n the near future.”16 Defendants
advised retailers that “[t]hose who simply do not wish to use the option offered by LuLaRoe
can apply directly to their state for the permit to manage their own sales tax.”17 Defendants
also advised that the only thing preventing it from collecting sales tax based on where the
products were being shipped was the Audrey software.18
Defendants launched a new POS system in January 2017 called Bless and began
transitioning retailers from Audrey to Bless.19 This transition was not completed until May
and Audrey was permanently disabled on May 31, 2017.20
In February 2017, a law suit (the Webster case) was filed in the Western District of
Pennsylvania, “alleging claims on behalf of class members in eleven states that have
jurisdictions where there is no sales tax on the clothing LuLaRoe sells, but where those
customers were charged the fraudulent tax. . . .”21 Although plaintiff was not a named
16Sales Tax Update, Exhibit 2 at 39, Defendants’ Request for Judicial Notice [etc.],
Docket No. 26.
17Id. at 42.
18Id. at 39.
19Memorandum Opinion, Exhibit 1 at 10, Defendants’ Request for Judicial Notice
[etc.], Docket No. 26.
20Id.
21First Amended Class Action Complaint at 12, ¶ 68, Docket No. 4. The Webster
(continued...)
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plaintiff in the Webster case,22 there was an Alaskan named plaintiff. Class certification was
denied in the Webster case on August 20, 2018 because the “[p]laintiffs [were] unable to
establish Rule 23’s requirements relating to commonality, the adequacy of class representa-
tion, predominance and superiority.”23 The court’s conclusion was primarily based on the
fact that the laws of eleven different states would apply to the plaintiffs’ claims. The court
mentioned defendants’ refund program in a footnote, referring to it as “a comprehensive
refund program[.]”24 On September 19, 2018, the Webster case was dismissed for lack of
jurisdiction.25
Plaintiff alleges that after the Webster case was filed, defendants “engaged in a
confusing, ad hoc, refund scheme in a failed effort to escape responsibility for its bad acts.”26
Defendants contend that they “recognized in or about June 2016 that a comprehensive sales
21(...continued)
plaintiffs were represented by the same counsel who represent plaintiff in this action.
22In November 2017, plaintiff moved to be substituted as the representative of the
Alaska class in the Webster case, a motion the court denied as moot after it denied the motion
for class certification. Attorney Declaration of Kelly K. Iverson at 7, ¶ 16, Docket No. 36.
23Order of Court at 12, Exhibit 1, Defendants’ Request for Judicial Notice [etc.],
Docket No. 26.
24Id. at 15 n.6.
25Order of Court, Exhibit 4, Defendants’ Request for Judicial Notice [etc.], Docket
No. 26.
26First Amended Class Action Complaint at 13, ¶ 77, Docket No. 4.
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tax refund program was needed” and that most refunds were issued by March 2017.27 In
answers to interrogatories in the Webster case, defendants admitted that they had only made
38 refunds prior to the filing of the Webster case on February 17, 2017 and that they had
made no refunds to any Alaska residents prior to February 17, 2017.28 Ultimately, defendants
refunded $255,483.35 to Alaska consumers who were improperly charged sales tax.29
Plaintiff commenced this action on September 5, 2018. Plaintiff asserts two claims
on behalf of herself and others similarly situated. In Count I, plaintiff asserts an Alaska
Unfair Trade Practices and Consumer Protection Act (UTPCPA) claim. Plaintiff alleges that
[d]efendants violated the UTPCPA by knowingly charging and
collecting an unlawful sales tax on its clothing sales to
[p]laintiff and class member[s]; by failing to disclose that they
were not authorized to collect such taxes; and by actively
misrepresenting to their customers, directly and through [their]
retailers, that their 2016 Tax Policy and their collection of “sales
tax” from the class members was proper and lawful.[30]
Plaintiff also alleges that “[d]efendants intentionally violated the UTPCPA by programming
their online point-of-sale payment system to collect sales tax on clothing when such
collection was unlawful and not authorized by the taxing authority of the buyer.”31 In Count
27Declaration of Jamie Ellis [etc.] at 5, ¶ 12; 7-8, ¶ 18; Docket No. 27.
28Exhibit 10 at 3-4, Iverson Declaration, Docket No. 36.
29First Amended Class Action Complaint at 14, ¶ 86, Docket No. 4.
30Id. at 19, ¶ 108.
31Id. at 19, ¶ 109.
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II, plaintiff asserts a conversion claim. In her first amended complaint, plaintiff sought the
following relief: 1) actual, statutory, and punitive damages, 2) interest on her damages, 3)
a declaration that defendants’ conduct was unlawful, 4) an injunction prohibiting defendants
from improperly collecting sales tax in the future, and 5) attorney’s fees and costs. In her
opposition to the instant motion, she states that she is seeking “the following relief: an
accounting; interest; statutory damages; and punitive damages.”32
Defendants now move to dismiss plaintiff’s first amended class action complaint.
Should the court not dismiss plaintiff’s first amended class action complaint in its entirety,
then defendants move to strike the class allegations.
Discussion
Pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, defendants move to
dismiss plaintiff’s first amended class action complaint for lack of standing. “‘Because
standing . . . pertain[s] to federal courts’ subject matter jurisdiction, [it is] properly raised in
a Rule 12(b)(1) motion to dismiss.’” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216,
1227 (9th Cir. 2011) (quoting Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115,
1122 (9th Cir. 2010)). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the
challenger asserts that the allegations contained in a complaint are insufficient on their face
to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the
32Plaintiff’s Opposition to Defendants’ Motion to Dismiss at 1, Docket No. 35.
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truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id.
Here, defendants are making a factual attack. “In resolving a factual attack on jurisdiction,
the district court may review evidence beyond the complaint without converting the motion
to dismiss into a motion for summary judgment.” Id. “The court need not presume the
truthfulness of the plaintiff’s allegations.” Id. “The plaintiff . . . bears the burden of proof
to establish standing ‘with the manner and degree of evidence required at the successive
stages of the litigation.’” Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir.
2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “‘[A]t the
pleading stage, general factual allegations of injury resulting from the defendant’s conduct
may suffice[.]’” Id. at 1139 (quoting Lujan, 504 U.S. at 561). If plaintiff “lacks standing,
the class lacks standing as well.” Pimentel v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012).
“The ‘irreducible constitutional minimum of standing’ consists of three elements: the
plaintiff must have (1) suffered an injury in fact; (2) that was caused by the defendant’s
challenged conduct; and (3) that would be redressed by the remedy the plaintiff seeks.”
Desert Water Agency v. U.S. Dep’t of the Interior, 849 F.3d 1250, 1253 (9th Cir. 2017)
(quoting Lujan, 504 U.S. at 560-61). “‘[A] plaintiff must demonstrate standing for each
claim [s]he seeks to press and for each form of relief that is sought.’” Maya v. Centex Corp.,
658 F.3d 1060, 1068–69 (9th Cir. 2011) (quoting Davis v. Fed. Elec. Comm’n, 554 U.S. 724,
734 (2008)).
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Defendants argue that plaintiff has not shown that she suffered an injury, “the ‘[f]irst
and foremost’ of standing’s three elements.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016) (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103 (1998)). “A
plaintiff establishes injury in fact, if he or she suffered ‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1042 (9th Cir.
2017) (quoting Spokeo, Inc., 136 S. Ct. at 1548).
Defendants argue that plaintiff cannot show that she has suffered an injury in fact as
to her claims for damages because the sales tax that she was charged has been refunded.
Jamie Ellis, a Senior Tax Analyst for defendants,33 avers that “[b]etween April 2016 (the time
of her first purchase) and June 2017, [plaintiff] made purchases totaling over $10,000 (before
sales tax was added) that were delivered into a non-taxing jurisdiction.”34 Ellis avers that
plaintiff “was charged sales tax through Audrey on some of these transactions, but not all.
For the transactions on which she was charged sales tax, the sale tax charges amount to
$531.25.”35 Ellis avers that plaintiff “was refunded the full $531.25” and that these refunds
“were issued to [her] debit card on May 17 and 18, 2017.”36
33Ellis Declaration at 2, ¶ 1, Docket No. 27.
34Id. at 10, ¶ 26.
35Id. at 10-11, ¶ 26.
36Id. at 11-12, ¶¶ 27-28.
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Plaintiff does not dispute that she was refunded $531.25 but she avers that she was
not notified that defendants were making these refunds, that defendants did not request
permission to electronically transfer funds to her account, and that defendants “did not
condition receipt of any of the 164 separate electronic fund transfers on a release of any
claims I have against them for their deceptive practices and conversion.”37 She also avers
that she has no way of knowing if she has been refunded the correct amount because she does
not have “invoices or receipts for all of the purchases that I made from LuLaRoe since April
2016[.]”38
The bottom line here is that plaintiff does not dispute that she has been refunded
$531.25, and she admits that she has no proof to refute that this amount properly reflects the
amount of sales tax she was improperly charged. The record also shows that plaintiff was
refunded the $531.25 prior to her filing this lawsuit and prior to her unsuccessful attempt to
become a named plaintiff in the Webster case.
Courts have held that a plaintiff lacks standing when a defendant refunds or offers to
refund the plaintiff’s losses prior to litigation. For example, in Hamilton v. General Mills,
Inc., Case No. 6:16-cv-382-MC, 2016 WL 4060310, at *1 (D. Or. July 27, 2016), Hamilton
purchased General Mills cereal that was labeled as gluten-free but that had been contami-
nated by wheat flour on specific production dates in July of 2015. “On October 5, 2015,
37Declaration of Katie Van at 2, ¶¶ 9-11, Docket No. 37.
38Id. at 3, ¶ 18.
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General Mills, working in conjunction with the United States Food and Drug Administration
(‘FDA’), issued a widely-advertised voluntary recall and refund program for the cereals
produced on those dates.” Id. Hamilton brought suit against General Mills, on behalf of
himself and others similarly situated, “alleg[ing] that General Mills (1) violated the Oregon
Uniform Trade Practices Act, Or. Rev. Stat § 646.605, et seq.; (2) received unjust
enrichment; and (3) engaged in unfair and deceptive acts and practices under various states’
laws.” Id. “General Mills argue[d] that Hamilton lack[ed] Article III standing because he has
not suffered any physical or economic injury and has no possibility of obtaining relief
because he has already been offered a full refund.” Id. at *4. The court agreed, concluding
that Hamilton had not “alleged a concrete and particularized injury-in-fact” because he did
“not allege that he suffered any injury as a result of those alleged wrongdoings except a
$15.98 purchase to which he is entitled a refund.” Id. at *5.
Similarly here, plaintiff’s injury-in-fact for her damages claims cannot be based on
the amount of sales tax she paid. That money was refunded to plaintiff prior to her
commencing this lawsuit.
That plaintiff is seeking statutory damages39 is of no import as to the issue of whether
plaintiff has Article III standing to pursue her claims for damages. A claim for statutory
39The UTPCPA provides that “[a] person who suffers an ascertainable loss of money
or property as a result of another person’s act or practice declared unlawful by AS 45.50.471
may bring a civil action to recover for each unlawful act or practice three times the actual
damages or $500, whichever is greater.” AS 45.50.531(a).
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damages cannot be the injury-in-fact that establishes constitutional standing. In Hamilton,
the plaintiff argued that his claim for statutory damages “support[ed] his standing to sue for
relief beyond the refund.” Hamilton, 2016 WL 4060310, at *4. The court rejected this
argument “because Hamilton’s loss of $15.98 is mooted by General Mills’ refund
program[,]” and that was the only actual injury he alleged. Id. at *5. As the Supreme Court
stated in Spokeo, 136 S. Ct. at 1549-50, “Article III standing requires a concrete injury even
in the context of a statutory violation. . . . [A plaintiff] cannot satisfy the demands of Article
III by alleging a bare procedural violation.”
Plaintiff argues that she has not alleged “a bare procedural violation, divorced from
any harm,” which is what the Spokeo court found insufficient. Id. at 1549. Rather, she
argues that she is alleging that she has suffered a concrete, economic harm beyond just the
sales tax that she was improperly charged. Plaintiff argues that the fact that she is seeking
statutory damages, which are damages that exceed the scope of defendants’ refund program,
means that she has standing. Plaintiff cites to Haddix v. General Mills, Inc., Case No. 2-15-
cv- 02625-MCE-AC, 2016 WL 2901589 (E.D. Cal. May 17, 2016), and Lengen v. General
Mills, Inc., 185 F. Supp. 3d 1213 (E.D. Cal. 2016), in support of her argument. Both of those
cases involved the same General Mills refund program at issue in Hamilton and in both
cases, the court concluded that the plaintiff’s claim for damages was not moot because the
plaintiff was seeking relief “that exceeds the scope of the recall program. . . .” Lengen, 185
F. Supp. 3d at 1221; Haddix, 2016 WL 2901589, at *6. But in neither case did the court
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conclude that Article III standing could be based on statutory damages alone. Without some
other allegation of concrete economic harm, plaintiff’s request for statutory damages cannot
be the injury-in-fact that establishes Article III standing.
Because of defendants’ refund program, the only concrete economic harm that
plaintiff has alleged is that she did not receive interest on the amount that defendants
refunded. The question here is whether that interest is sufficient to establish Article III
standing.
Plaintiff argues that the lost time value of money is sufficient to confer Article III
standing. Plaintiff cites to Oyola v. Cavalry SPV I, LLC, Case No. 4:17-cv-40083-TSH,
2018 WL 1940313 at (D. Mass. March 1, 2018), in support. There, the defendant was
alleged to have improperly garnished the plaintiff’s wages “from August 2014 through April
2017 in a total amount of $6,498.21.” Id. at *2. The defendant argued that the plaintiff had
not suffered an injury in fact because it had returned all of the garnished funds to the
plaintiff. Id. at *6. The court rejected this argument because “[m]erely refunding [the
p]laintiff’s money dollar-for-dollar may not fully compensate [her] for the alleged
deprivation of her right to have and spend her wages as she saw fit.” Id. at *7; see also,
South Peninsula Hospital v. Xerox State Healthcare LLC, 223 F. Supp. 3d 929, 934 (D.
Alaska 2016) (finding that “delayed reimbursements resulted in financial harms to Medicaid
providers, including loss of the time value of money”).
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Plaintiff estimates that she is owed, at a minimum, $3.76 in interest.40 Plaintiff argues
that it is irrelevant that this is a small amount because “[f]or standing purposes, a loss of even
a small amount of money is ordinarily an ‘injury.’” Czyzewski v. Jevic Holding Corp., 137
S. Ct. 973, 983 (2017); see also, Carter v. HealthPort Technologies, LLC, 822 F.3d 47, 55
(2d Cir. 2016) (quoting Natural Resources Defense Council, Inc. v. United States Food &
Drug Admin., 710 F.3d 71, 85 (2d Cir. 2013) (“[a]ny monetary loss suffered by the plaintiff
satisfies th[e injury-in-fact] element; ‘[e]ven a small financial loss’ suffices”).
Plaintiff cites to Weidenhamer v. Expedia, Inc., Case No. C14–1239RAJ, 2015 WL
1292978 (W.D. Wash. Mar. 23, 2015), in support of her argument that a small amount of
monetary loss is sufficient for purposes of Article III standing. There, the plaintiff sought,
among other relief, “a credit equivalent to 5% of his family’s total airfare to account for the
discount” he contended Expedia promised, but which “he did not receive.” Id. at *1.
Expedia argued that the plaintiff lacked standing because it had refunded “$79.66 (5% of the
total that Mr. Weidenhamer paid to Expedia) to Mr. Weidenhamer’s credit card.” Id. at *1,
3. The court rejected Expedia’s argument, explaining
that Article III also recognizes temporary deprivations of money
as injuries. A “full” refund is not “full” compensation unless it
comes with compensation for the lost time value of the money.
In this case, the lost time value of Mr. Weidenhamer’s $80
overcharge is very little, to be sure. Assuming that Expedia
deprived him of $80 for two months and the applicable interest
rate is 10%, he lost $1.33. At 1% interest, he lost just 13 cents.
40This is based on an interest rate of 4.25% on $531.25 for two months.
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That is very little, to be sure, but the court is aware of no
appellate authority excluding tiny monetary injuries from the
scope of Article III. Perhaps Article III places a minimum on a
purely monetary injury, but the court does not believe Mr.
Weidenhamer’s complaint asserts an injury below that mini-
mum.
Id. at *4.
The court is not persuaded by plaintiff’s argument. Rather, the court concludes that
in this case, “[t]he de minimus amount alleged lost [in interest] is . . . inadequate to establish
Article III standing. . . .” Becker v. Skype Inc., Case No. 5:12–CV–06477–EJD, 2014 WL
556697, at *3 (N.D. Cal. Feb. 10, 2014); see also, Epstein v. JPMorgan Chase & Co., Case
No. 13 Civ. 4744(KPF), 2014 WL 1133567, at *7 n.6 (S.D.N.Y. Mar. 21, 2014) (claim of
$.67 of interest “would at most demonstrate that Plaintiff was inconvenienced, and any
alleged injury would rest on pure speculation. Allegations of that sort would be far too
slender a reed on which to premise Article III standing.”). While “a loss of even a small
amount of money is ordinarily an ‘injury[,]’ Czyzewski, 137 S. Ct. at 983, “[t]here is, of
course, a de minimis level of imposition with which the Constitution is not concerned.”
Ingraham v. Wright, 430 U.S. 651, 674 (1977). Some injuries are “too trifling of an injury
to support constitutional standing.” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d
832, 840 (9th Cir. 2007). Plaintiff’s alleged loss of interest in this case is such an injury. It
is too little to support Article III standing as to either of plaintiff’s UTPCPA or conversion
claims.
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Because plaintiff lacks standing, the court need not consider defendants’ arguments
that plaintiff has failed to state plausible claims or defendants’ alternative motion to strike
plaintiff’s class allegations.
Conclusion
Based on the foregoing, defendants’ motion to dismiss is granted. Plaintiff’s first
amended class action complaint is dismissed with prejudice because any amendment would
be futile.41
DATED at Anchorage, Alaska, this 1st day of March, 2019.
/s/ H. Russel Holland
United States District Judge
41Plaintiff contends in her opposition to the instant motion that she is seeking an
accounting although such a claim is not pled in her first amended class action complaint. To
the extent that plaintiff is suggesting that she could amend her complaint to add such a claim,
even if plaintiff had standing to bring such a claim, defendants have already provided her an
accounting in the form of Mr. Ellis’ declaration.
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