United States District Court, N.D. Alabama, Southern Division
DAVID PHILLIPS, ROBIN L. BROWNING as the EXECUTOR of the ESTATE OF DIANE BROWNING, MARY E. CARRARA, and WENDY CALMA, individually and on behalf of a class of persons, Plaintiffs,
HOBBY LOBBY STORES, INC., Defendant.
E. Ott Chief United States Magistrate Judge.
a putative class action brought by the Estate of Diane
Browning and Mary Carrara (collectively,
“Plaintiffs”) against retailer Hobby Lobby
Stores, Inc.The case concerns the manner in which Hobby
Lobby administers a weekly coupon offering “40% Off One
Item at Regular Price.” Diane Browning, an Alabama
resident, used a 40% off coupon when she purchased a small
chest of drawers that was priced “Always 30% Off”
the “marked price.” Mary Carrara, an Illinois
resident, used a 40% off coupon on multiple occasions when
she purchased fabric that was similarly priced “Always
30% Off” the “marked price.” On all
purchases, Hobby Lobby applied the 40% off coupon to the
marked price rather than the 30% off price. In their Fourth
Amended Complaint, Plaintiffs allege that this practice
constitutes breach of contract and violates the Alabama
Deceptive Trade Practices Act (“ADTPA”), Ala.
Code § 9-19-1 et seq., and the Illinois
Consumer Fraud Act (“ICFA”), 815 Ill. Comp. Stat.
505/1 et seq., and Illinois Deceptive Trade
Practices Act, 815 Ill. Comp. Stat. 510/1 et seq.
(“IDTPA”). (Doc. 49).
case is now before the court on two motions for summary
judgment filed by Hobby Lobby: (1) motion for summary
judgment on Mary Carrara's claims for statutory and
injunctive relief under the ICFA and IDTPA, (doc. 55), and
(2) motion for summary judgment on both Plaintiffs'
claims for breach of contract and the Estate's claims for
statutory and injunctive relief under the ADTPA, (doc. 57).
The motions have been fully briefed by the parties and are
ripe for decision. For the reasons that follow, the first
motion for summary judgment against Carrara's Illinois
Consumer Fraud and Deceptive Trade Practices Acts claims is
due to be granted. (Doc. 55). The second motion for summary
judgment is due to be granted in part and denied in part.
(Doc. 57). The motion is due to be granted as it relates to
Plaintiffs' claims for breach of contract and the
Estate's claim for injunctive relief under the ADTPA, but
denied as it relates to the Estate's claims for statutory
relief under the ADTPA.
SUMMARY JUDGMENT STANDARD
of the Federal Rules of Civil Procedure provides that a court
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The party moving for summary judgment
“always bears the initial responsibility of informing
the district court of the basis for its motion, ”
relying on submissions “which it believes demonstrate
the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
see also Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991); Adickes v. S.H. Kress &
Co., 398 U.S. 144 (1970). Once the moving party has met
its burden, the nonmoving party must “go beyond the
pleadings” and show that there is a genuine issue for
trial. Celotex Corp., 477 U.S. at 324. At summary
judgment, “the judge's function is not himself to
weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986).
STATEMENT OF FACTS
Lobby is a retailer that operates over 700 stores nationally.
It sells arts, crafts, frames, small pieces of furniture, and
other similar items. (Doc. 49 at ¶ 8; Doc. 50 at ¶
8). Plaintiffs' claims arise out of their purchase of
furniture (Diane Browning) and fabric (Mary Carrara).
Lobby attaches two price tags to its furniture items. One is
a green tag showing an item number and price. (See
Doc. 58-19 at 2). The other is an orange tag stating that
furniture is “Always 30% Off” the price displayed
on the green tag. (Id.). The orange tag shows the
item's 30% off price, which is identified as “Your
Price” for the item. (Id.).
signs explaining Hobby Lobby's furniture pricing are
posted throughout the areas where furniture is sold. The
signs explain that furniture is always 30% off the
“marked price” and that “marked prices
reflect comparable prices offered by other sellers for
similar products.” (Doc. 58-9 at 2-3). The signs
further explain that the “discounted price” of an
item is “shown on [its] orange tag” and that the
“discounts” are “provided every day.”
Lobby's advertisements convey the same pricing
information. The advertisements state that furniture is
“Always 30% Off the Marked Price.” (Doc. 58-10 at
2). The same definition of “marked price” is
used: marked prices reflect “comparable prices offered
by other sellers for similar products.” (Id.).
The advertisements likewise indicate that the “Always
30% Off” price is a “discount” provided
every day. (Id.).
fabrics sold by Hobby Lobby-home decor fabric, fleece, and
calico prints and solids-are priced and advertised the same
way as furniture. In the areas of the store where fabric is
sold, signs state that home decor fabric, fleece, and calico
prints and solids are “Always 30% Off the Marked
Price” and that these “discounts” are
“provided every day.” (Doc. 58-8 at 2). As with
furniture, the signs explain that “marked prices
reflect comparable prices offered by other sellers for
similar products.” (Id.). Hobby Lobby's
advertisements convey this same information. (Doc. 58-10 at
difference with a furniture purchase and fabric purchase was
the fabric ticket. When a customer purchases fabric from
Hobby Lobby, the customer receives a fabric ticket that also
contains pricing information. (Carrara Dep. at 45-46,
132-33; Doc. 58-11). Because fabric is usually
priced by the yard, the customer tells the Hobby Lobby
employee working in the fabric department how many yards, or
fractions of yards, she wishes to purchase; the employee
records the number of yards purchased and the applicable
price per yard on the fabric ticket, and then multiplies
those two numbers to arrive at the total purchase price of
the fabric. (Carrara Dep. at 129-59). The portion of the
fabric ticket completed by the employee depends upon the
price of the fabric being purchased. If the price is not a
sale, clearance, or always discounted price, the employee
typically completes only the top (white) portion of the
ticket. (Id. at 135; Doc. 58-11 at 2). When a sale,
clearance, or always discounted fabric is purchased, the
employee completes the bottom (pink) portion of the fabric
ticket by (1) filling in the number of yards purchased, (ii)
writing in the “regular price” of the fabric,
(iii) computing the sale or discount percentage to arrive at
the “reduced price per yard, ” and (iv)
multiplying the number of yards by the reduced price per yard
to arrive at the total purchase price. (Id. at
141-43, 158-59; Doc. 58-11 at 2). At the bottom of the pink
part of the ticket, customers are informed that “no
additional discounts or coupons are allowed on sale and
clearance fabric.” (Doc. 58-11 at 2).
. 40% Off Coupon
Lobby provides a weekly coupon for its customers' use.
Customers can clip the coupon out of a newspaper
advertisement, download the coupon onto their mobile cellular
device, or print the coupon from Hobby Lobby's website.
(Freebern Dep. at 81-83). The coupon is good for “40% Off
One Item at Regular Price.” (Doc. 58-5 at 2-3). The
term “regular price” is not defined in the
coupon. (Id.). Certain stated restrictions apply to
the coupon's use: customers are limited to one coupon per
day; the coupon must be presented at the time of purchase;
the coupon cannot be used on certain items; and the coupon
offer is “not valid with any other coupon, discount, or
previous purchase.” (Id.).
. Diane Browning's Furniture Purchase
Browning purchased a small chest of drawers at the Hobby
Lobby store in Jasper, Alabama, on April 2, 2016. (Doc.
58-21). The green tag attached to the chest of drawers
indicated a marked price of $289.99; the orange tag reflected
an “Always 30% Off” price of $202.99. (Doc.
Browning was given a sales receipt at the time of her
purchase. (Doc. 58-21; Robin Browning Dep. at
107). The receipt shows Mrs. Browning used a
coupon to obtain a 40% discount on furniture marked at
$289.99, that using the coupon saved her $116.00, and that
the discounted price she paid after using the coupon was
$173.99. (Doc. 58-21 at 2). The receipt also explains Hobby
Lobby's return policy: if the original sales receipt is
presented by the customer within 90 days of purchase, Hobby
Lobby will exchange the merchandise, provide store credit, or
issue a refund. (Id. at 3). Without an original
receipt, the customer may either exchange the merchandise or
receive a merchandise credit. (Id.).
Mrs. Browning returned home, she showed her sales receipt to
her husband, who immediately noticed the 40% coupon had not
been applied to the chest of drawers'
“always” price of $202.99. (Robin Browning Dep.
at 64-65, 97- 101, 105-06). Instead, the receipt showed the
40% coupon had been applied to the “marked price”
of $289.99. (Docs. 58-19 & 58-21; Robin Browning Dep. at
100-01, 103-06). This was evident to Mr. Browning from his
examination of the receipt and the furniture tags Mrs.
Browning also brought home with her. (Id. at
Browning testified that he does not know whether his wife
noticed or read the Hobby Lobby store signs identifying
furniture as “Always 30% Off the Marked Price”
and notifying customers that their “discounted
price” is shown on the orange tag and that the
“discounts” are “provided every day.”
(Robin Browning Dep. at 144-49). He also does not know
whether his wife read the sales receipt at the time the time
she purchased the chest of drawers, although he has no
evidence that she was prevented from doing so. (Id.
at 41, 106-08.) As far as he knows, his wife never spoke with
anyone at Hobby Lobby about the price she paid for the chest
of drawers. (Id. at 69-70).
Browning never returned the chest of drawers to Hobby Lobby
for a refund. (Id. at 72, 113). She continued to use
the furniture after purchasing it. (Id. at 113).
. Mary Carrara's Fabric Purchases
Carrara was a frequent shopper at Hobby Lobby, visiting the
store in Peoria, Illinois, at least every other week.
(Carrara Dep. at 25). She purchased many fabric items from
Hobby Lobby, including fleece, calico, and home decor
fabrics. She noticed and read the store signs identifying
fleece, calico, and home decor fabrics as “Always 30%
Off the Marked Price.” (Id. at 76-77, 105,
107). She understood Hobby Lobby was representing that it was
selling those fabric items at ¶ 30% reduction from the
comparable prices other sellers charged for similar items.
(Id. at 115-16). She also understood that the
“marked price” was not a former price previously
charged by Hobby Lobby and that the 30% reduced price
referenced on the signs was a discount that Hobby Lobby
provided every day. (Id. at 110, 115, 117-18).
Carrara frequently used a 40% off coupon when she purchased
items from the Hobby Lobby store in Peoria. She usually cut
the coupon out of Hobby Lobby's newspaper advertisements.
(Id. at 70, 78). On those occasions when Mrs.
Carrara used a 40% off coupon in connection with her purchase
of a fabric item that was always priced at 30% off, the
cashier would not apply the coupon to the “reduced
price” identified on Mrs. Carrara's fabric ticket,
but instead would apply the coupon to the “regular
price” shown on the ticket. (Id. at 145-48).
Mrs. Carrara acknowledged how the process worked at her
Q. … Say you bought a yard of a piece of fabric that
had a marked price of $10. So on [the fabric ticket] in that
pink section down there, they would fill out one yard in the
furtherest left-hand column, right?
Q. Then they would put out $10 under that column
“regular price, ” right?
Q. And then the next column, the “reduced”
column, they would put $7, and then they would have one times
7, that would be $7 for that piece, is what that would cost,
Q. So now you go up with a coupon, and … they
won't give you 40 percent off, in my example, of the $7,
they would only give ...