Phillips et al v. Hobby Lobby Stores Inc

Filing 78

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 9/27/2018. (KAM)

FILED
2018 Sep-27 PM 01:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF 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,
v.
HOBBY LOBBY STORES, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 2:16-cv-00837-JEO

MEMORANDUM OPINION
This is a putative class action brought by the Estate of Diane Browning 1 and
Mary Carrara (collectively, “Plaintiffs”) against retailer Hobby Lobby Stores, Inc.2
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
1

Diane Browning died after filing this lawsuit. Mrs. Browning’s husband, Robin Browning, was
appointed executor of her estate. In that capacity, Robin Browning has been substituted as
plaintiff. (Docs. 40 & 42).
2

The claims of plaintiffs David Phillips and Wendy Calma have been dismissed. (Doc. 63).

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).
The 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

2

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.
I.

SUMMARY JUDGMENT STANDARD
Rule 56 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).
II.

STATEMENT OF FACTS
Hobby 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 ¶
3

8; Doc. 50 at ¶ 8). Plaintiffs’ claims arise out of their purchase of furniture (Diane
Browning) and fabric (Mary Carrara).
A.

Furniture Pricing

Hobby 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.).
Store 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.” (Id.).
Hobby 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.).

4

B.

Fabric Pricing

Certain 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 2).
A 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 4546, 132-33; 3 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

3

Cararra’s deposition is located at Document 58-1.
5

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).
C.

40% Off Coupon

Hobby 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).4 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

4

Melissa Freebern’s deposition is located at Document 58-4.
6

coupon cannot be used on certain items; and the coupon offer is “not valid with
any other coupon, discount, or previous purchase.” (Id.).
D.

Diane Browning’s Furniture Purchase

Diane 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. 58-19).
Mrs. Browning was given a sales receipt at the time of her purchase. (Doc.
58-21; Robin Browning Dep. at 107).5 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.).
When 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-

5

Robin Browning’s deposition is located at Document 58-3.
7

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 10001, 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
97-101).
Mr. 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).
Mrs. 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).
E.

Mary Carrara’s Fabric Purchases

Mary 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
8

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.”6 (Id. at 76-77, 105, 107).
She understood Hobby Lobby was representing that it was selling those fabric
items at a 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).
Mrs. 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 deposition:
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

6

The only items Mrs. Carrara purchased at Hobby Lobby that are at issue in this case are fabric
items. (Carrara Dep. at 200-01). She did not purchase any of the other items that Hobby Lobby
sells at “Always 30% Off” the marked price. (Id.).
9

there, they would fill out one yard in the furtherest left-hand
column, right?
A.

Yes.

Q.

Then they would put out $10 under that column “regular price,”
right?

Q.

Yes.

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, right?

A.

Yes.

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
you 40 percent off the $10, right?

A.

Yes.

Q.

So the cashier would then look at your fabric ticket, and in my
example would say, okay, the regular marked price on that
fabric is $10, you bought a yard of it, so I’m going to give you
40 percent off $10, so you’d end up paying $6 for that piece of
fabric; is that right? Is that how that worked?

A.

Yes.

(Id. at 147-48). Mrs. Carrara testified that she felt deceived when the coupon was
applied in this way:
Q.

… So you’re saying that if some item was marked, say, 25 or
30 percent off and you used a coupon, you think you should get
another 40 percent off that price; is that what you’re saying?

A.

The way it is advertised is that those fabrics are always 30
percent off.
10

Q.

Right.

A.

So what’s the real price? Is it – you know, I feel like I’m getting
only 10 percent off ….

Q.

[They] are not giving you 40 percent off that already-reduced
price?

A.

Yeah. If it’s always 30 percent off, then what’s the real price? I
should get – if the fabric is $5.99, and it’s always 30 percent off
and it’s $5.99, I should get 40 percent off that $5.99.

Q.

So you’re saying if the fabric is already 30 percent off and the
already 30 percent discounted price is $5.99 – is that what
you’re saying?

A.

The way it’s worded, is they’re always – the price is always 30
percent off.

...

…

A.

So then to present a 40 percent coupon for that purchase – I
don’t know, I feel deceived sometimes that I don’t get the 40
percent off when I buy a fabric that says [always 30 percent
off.]

(Id. at 53-55).
Mrs. Carrara was given a sales receipt each time she purchased an item at
Hobby Lobby. When she used a coupon with her purchase, the receipt would
show the item the coupon was used with, the price against which the coupon was
measured, the savings she received by using the coupon, and the total purchase
price for the item after using the coupon. (Id. at 202-04; see, e.g., Docs. 58-12 at
2-3, 58-13 at 2-3, 58-15 at 2-6). Mrs. Carrara conceded that she could clearly
11

discern the price from which the 40% coupon was deducted simply by reading the
receipt. (Carrara Dep. at 207). She never expressed any objection to the cashier
about the price she was paying. (Id. at 212).
Ms. Carrara never brought any of the items she purchased with a coupon
back to the Hobby Lobby store to seek a refund on the basis that she had been
overcharged. (Id. at 209-10.)

She testified that she was satisfied with all of the

Hobby Lobby items she purchased. (Id. at 74.) She made no effort to determine,
either before or after she filed this lawsuit, whether she could have obtained the
same or similar items from another store at prices lower than what she paid at
Hobby Lobby. (Id. at 72-73.)
III.

ANALYSIS
There are three remaining claims in Plaintiffs’ Fourth Amended Complaint:

a claim by both Plaintiffs for breach of contract (Count I); a claim by the Estate for
violation of the ADTPA (Count II); and a claim by Mary Carrara for violation of
the ICFA and IDTPA (Count III). (Doc. 49). Hobby Lobby has moved for
summary judgment on all three claims. (Docs. 55 & 57).
A.

Hobby Lobby’s “Marked Prices”

Before considering each of the claims alleged by Plaintiffs in their Fourth
Amended Complaint, the court will address a major point of contention between
the parties: whether Plaintiffs have raised a new claim in their response to Hobby
12

Lobby’s summary judgment motions. Resolution of this issue will impact the rest
of the court’s decision.
In Plaintiffs’ response to Hobby Lobby’s summary judgment motions,
Plaintiffs argue:
Most Hobby Lobby fabrics, and all furniture items, are marked
“Always 30% Off”. … It is undisputed that these items are always
sold at the “Always” price.
Despite the plainly analogous meanings of “Always” and
“Regular”, Hobby Lobby does not want to offer 40% off the price the
merchandise is actually sold at, it wants to sell this merchandise, with
a coupon, at an approximately 15% discount from the price at which
the merchandise is always sold.
In order to provide only a 15% discount off of an item, but
represent that it is giving the customer a 40% discount, Hobby Lobby
creates, literally out of the heads of its buyers, a price it says is
based upon “Comparable prices offered by other sellers for
similar products.” Except this is not true. Hobby Lobby admits it
does no survey, and has no policy to determine what “similar
products” are, or what they are sold for. This conduct is definitionally
deceptive.
...
Both [Plaintiffs] were told by [Hobby Lobby’s] documents that
the “regular” prices were the “comparable” prices. Neither Plaintiff
had any way to know that Hobby Lobby had no idea what
comparable prices were, but paid 40% off of the merchandise at
that price, instead of getting 40% off the true regular price. This
pricing scheme creates liability for breach of contract, and under the
Alabama and Illinois Deceptive Trade Practices Acts.
(Doc. 67 at 2-3) (emphasis added). Plaintiffs repeat these allegations throughout
their brief. (See id. at 10-13, 16, 18-19, 39, 47-49, 54, 56-57, & 59). They also
13

argue that Hobby Lobby’s alleged “pricing scheme” violated pricing regulations
found in federal and Illinois law. (Id. at 32-36, 52-55).
In its reply brief, Hobby Lobby cries foul.

Hobby Lobby asserts that

Plaintiffs’ “new” allegations are not found anywhere in any of Plaintiffs’ five
complaints. (Doc. 74 at 2). Hobby Lobby argues that the “entire thrust of each
complaint was that Hobby Lobby broke contracts and deceived Plaintiffs simply by
not giving them another 40% discount on top of the “Always 30% [Off]” discounts
that ordinarily applied to the fabric and furniture items they purchased.” (Id. at 23). Hobby Lobby contends that “[n]o claim in any of the complaints alerted Hobby
Lobby of the need to marshal evidence to defend against the theory that its
‘marked prices’ were bogus because they were not related to prices its competitors
charged for similar merchandise.” (Id.) Hobby Lobby also notes that “[t]here were
no references [in any of Plaintiffs’ complaints] to the federal or Illinois regulations
cited in Plaintiffs’ response brief, or [to] how Hobby Lobby’s use of ‘comparable
prices’ charged by others were impacted by those regulations.” (Id. at 2). Hobby
Lobby thus argues that the court should disregard Plaintiffs’ “new claims” raised
for the first time in their response brief.7

7

Hobby Lobby separately argues that Plaintiffs have “blatantly distorted” the process by which it
sets its “marked prices” and that the court should also reject Plaintiffs’ arguments about
“fictional marked prices” on substantive grounds. (Doc. 74 at 6-9).
14

As this court has noted elsewhere, “a summary judgment memorandum is
not a proper vehicle for amending the pleadings.” McKenzie v. Talladega Bd. of
Educ., 242 F. Supp. 3d 1244, 1255 n.12 (N.D. Ala. 2017); see Gilmour v. Gates,
McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not
amend her complaint in a brief opposing summary judgment.”). That is what
Plaintiffs are seeking to do here. Plaintiffs do not allege anywhere in their Fourth
Amended Complaint—or in any of their preceding complaints—that they were
deceived by Hobby Lobby’s representation that the “marked prices” of items
priced “Always 30% Off” reflected “comparable prices offered by other sellers for
similar products.” Rather, they allege that they were deceived by Hobby Lobby’s
representation that it would apply its 40% off coupon to an item’s “regular price,”
which they contend is the item’s “Always 30% Off” price and the price to which
the coupon should have been applied. (See, e.g., Doc. 49 at ¶ 53 (“Mrs. Browning
should have gotten forty percent (40%) off of the ‘Always’ price, because that is
the regular price of the goods.”; Doc. 49 at ¶ 62 (“Mrs. Carrara should have gotten
40% off of the ‘Always’ price that is the ‘regular’ price of the goods, instead of
40% off of the ‘never’ price, which cannot be considered the ‘regular’ price of the
goods.”)). In other words, the allegations in Plaintiffs’ complaint relate to the
manner in which Hobby Lobby applies its coupon, not to the manner in which
Hobby Lobby determines an item’s “marked price.” Indeed, nowhere in Plaintiffs’
15

Fourth Amended Complaint do they make any reference to Hobby Lobby’s use of
“comparable prices” as the basis for its “marked prices.” There is no allegation
that Hobby Lobby has “no idea” what its competitors’ “comparable prices” truly
are; no allegation that the “marked prices” charged by Hobby Lobby are based on
unsubstantiated “comparable prices” that no other sellers charge; and no allegation
that Hobby Lobby’s use of unsubstantiated “comparable prices” to arrive at its
“marked prices” runs afoul of federal and Illinois pricing regulations. These are
new allegations that seek to change the very nature of this case.
The court recognizes that Plaintiffs do allege in their Fourth Amended
Complaint that “Hobby Lobby’s ‘regular’ price is an artificially inflated price at
which the merchandise has never been sold by Hobby Lobby. Rather, it is a fiction
created by Hobby Lobby.” 8 (Doc. 49 at ¶ 10) (emphasis in original). However, as
Hobby Lobby aptly states it in its reply brief, “[T]his is just a rinse and repeat of
Plaintiffs’ familiar refrain about ‘always’ and ‘never’ prices—i.e., their claims that
the marked price is a ‘fiction’ because it is never charged to Hobby Lobby
customers. There are no factual allegations anywhere that Hobby Lobby’s non8

Plaintiffs assert in their brief that “[the Estate’s] claim is that Hobby Lobby advertises and
marks furniture items with artificially inflated fictitious prices, never sold by it, or any other
retailer.” (Doc. 67 at 30) (emphasis added). That is not what is alleged in their complaint. As
quoted above, the allegation in Plaintiffs’ complaint is that “Hobby Lobby’s ‘regular’ price is an
artificially inflated price at which the merchandise has never been sold by Hobby Lobby.” (Doc.
49 at ¶ 10). There is no allegation that the “regular” price is an “artificially inflated price”
because it is never sold by “any other retailer.”
16

discounted ‘marked price’ is a fictional price because it is higher than what other
sellers sell for similar merchandise.” (Doc. 74 at 3) (emphasis in original) (footnote
omitted). The court agrees with Hobby Lobby.
If Plaintiffs had wished to bring a claim against Hobby Lobby for engaging
in a deceptive trade practice in the way it sets its “marked prices,” they could have
and should have done so. They did not. They never moved for leave to amend any
of their complaints to add such a claim. It is also quite telling that Plaintiffs have
offered no admissible evidence showing that the “comparable prices” offered by
other sellers for similar merchandise were lower than Hobby Lobby’s “marked
prices.” 9 They have offered no market studies or similar evidence establishing
what other retailers were charging during the relevant periods when Diane
Browning and Mary Carrara purchased their merchandise from Hobby Lobby. The
absence of such evidence is further confirmation that Plaintiffs’ current allegations
regarding the allegedly deceptive way in which Hobby Lobby arrives at its
“marked prices” are new allegations raised by Plaintiffs after the fact.

9

In opposition to Hobby Lobby’s motion for summary judgment, the Estate has submitted screen
shots from the Amazon web-site purporting to show prices of some chests that it claims are
priced lower than the marked price of the furniture Mrs. Browning purchased. (Doc. 67-13). The
screen shots are inadmissible for a number of reasons. First, they are not authenticated. Second,
they have been offered to prove the truth of the matter asserted – the actual price of the items
displayed – and no evidence has been offered to establish the business records exception. See
Fed. R. Evid. 801(c) and 803(6). Third, they are incomplete duplicates, as several of the
screenshots are obscured. See Fed. R. Evid. 1003. They also do not reflect prices in effect at the
time Mrs. Browning purchased her furniture from Hobby Lobby on April 2, 2016. (Doc. 58-21).
17

Plaintiffs cannot present a new claim or legal theory after Hobby Lobby has
moved for summary judgment. Again, the focus of all of their complaints has been
on how Hobby Lobby applies its 40% off coupon to items priced “Always 30%
Off”, not on how Hobby Lobby arrives at an item’s “marked price.” Accordingly,
the court will disregard Plaintiffs’ allegations and arguments regarding the manner
in which Hobby Lobby establishes its “marked prices” and will not consider such
allegations and arguments in its analysis of Plaintiffs’ claims, including Plaintiffs’
allegation that Hobby Lobby’s reference to “comparable prices offered by other
sellers” is a deceptive practice that violates federal and Illinois pricing regulations.
That allegation cannot be found anywhere in Plaintiffs’ Fourth Amended
Complaint. The court addresses Plaintiffs’ claims as they are presented in the
Fourth Amended Complaint.
B.

Breach of Contract

Plaintiffs’ first claim is for breach of contract. Under both Alabama and
Illinois law, the first element of a claim for breach of contract is a valid contract
binding both parties. Benton v. Clegg Land Co., 99 So. 3d 872, 883 (Ala. 2012)
(the elements of a claim for breach of contract are a valid contract binding both
parties,

the

plaintiff’s

performance

of

the

contract,

the

defendant’s

nonperformance, and resulting damages); see also Roberts v. Columbia Coll.
Chicago, 821 F.3d 855, 863 (7th Cir. 2016) (to support a breach of contract claim
18

under Illinois law, a plaintiff must prove: a valid and enforceable contract,
performance by the plaintiff, breach by the defendant, and resultant damages). A
valid and binding contract requires “an offer and an acceptance, consideration, and
mutual assent to the essential terms of the agreement.” Stacey v. Peed, 142 So. 3d
529, 531 (Ala. 2013) (internal quotation marks and citation omitted); see also Fries
v. United Mine Workers, 333 N.E. 2d 600, 604 (Ill. App. 1975). “It is well settled
that whether parties have entered a contract is determined by reference to the
reasonable meaning of the parties’ external and objective actions.” SGB Constr.
Servs., Inc. v. Ray Sumlin Constr. Co., 644 So. 2d 892, 895 (Ala. 1994).
Here, the parties agree a contract was formed when Diane Browning and
Mary Carrara purchased their merchandise from Hobby Lobby using a 40% off
coupon. They disagree, however, on whether there was a mutual assent to the
contract terms. Hobby Lobby argues that Plaintiffs cannot prevail on their breach
of contract claim because “[t]heir actions manifested assent to a contract based on
Hobby Lobby’s position—the regular price [of an item] is the “Marked Price” and
the coupon [cannot] be used to obtain an additional 40% discount on items that are
always discounted by 30%.” (Doc. 59 at 22). Plaintiffs respond that there is a
dispute “as to just what [they] assented to” and that this dispute precludes summary
judgment. (Doc. 67 at 25). The court disagrees with Plaintiffs.

19

“[T]he law of contracts is premised upon an objective rather than a
subjective manifestation of intent approach.” Lilley v. Gonzalez, 417 So. 2d 161,
163 (Ala. 1982); see also 2 Williston on Contracts § 6:3 (4th ed. 2007) (formation
of a contract usually depends on an “outward, objective manifestation of assent”).
“The manifestation of assent may be made wholly or partly by written or spoken
words or by other acts or failure to act.” Restatement (Second) of Contracts
§ 19(1) (1981). A party’s conduct is critical, because conduct “may manifest
assent even though [the party] does not in fact consent.” Id. §19(2); accord Baker
v. Elmwood Distrib., Inc., 940 F.2d 1013, 1017 (7th Cir. 1991) (even if there is a
clash of “subjective understandings” about a contract, the focus is on the parties’
conduct and whether those manifested assent).
Here, the core thesis of Plaintiffs’ breach of contract claim is that they never
assented to Hobby Lobby’s position on the coupon’s terms. Specifically, Plaintiffs
contend that they never assented to Hobby Lobby’s position that the “regular
price” of an item is the item’s “marked price.” Instead they contend the “regular
price” of the item is the price for which the item is “always” sold, the 30% off
price. Their conduct, however, tells a different story. It is undisputed that each
time Diane Browning and Mary Carrara presented a 40% off coupon to purchase
an item that was always discounted by 30%, Hobby Lobby applied the coupon to
the item’s marked price; Mrs. Browning and Mrs. Carrara voluntarily paid the
20

price they were charged without objection; and they were given a receipt showing
exactly what they paid and how the price was calculated. Each receipt confirmed
that the 40% coupon discount had been deducted from the “marked price.” By
paying the price reflected on the receipt, Mrs. Carrara and Mrs. Browning
evidenced their outward, objective manifestation of assent to the price Hobby
Lobby charged. See Mobile Attic, Inc. v. Kiddin’ Around of Ala., Inc., 72 So. 3d
37, 45 (Ala. Civ. App. 2011) (“[T]he actions of the parties in reference to the
contract can form the basis of mutual assent; that is, when the conduct of one party
is such that the other party may reasonably draw the inference of assent to the
agreement, that conduct is effective as assent.”); accord First Valley Leasing, Inc.
v. Goushy, 795 F. Supp. 693, 697 (D.N.J. 1992) (payment of items listed on
plaintiffs’ invoices indicated acceptance of the offer and formation of a valid
contract).
Moreover, there is no evidence that either Diane Browning or Mary Carrara
ever communicated their contrary interpretation of the coupon’s terms to any
Hobby Lobby employee prior to purchase. Indeed, there is no evidence that any
Hobby Lobby employee was aware that either Mrs. Browning or Mrs. Carrara was
interpreting the coupon’s terms in a manner that was inconsistent with Hobby
Lobby’s construction and application of the coupon. Regardless of what Mrs.
Browning and Mrs. Carrara may have believed or intended to say about the
21

coupon, the actual agreement the parties reached is evidenced by what Mrs.
Browning and Mrs. Carrara voluntarily paid for the items at issue, as reflected on
the receipts given to them. See Mercedes-Benz Int’l, Inc. v. Cobasys, LLC, 605 F.
Supp. 2d 1189, 1202 (N.D. Ala. 2009) (“[I]t is the reasonable meaning of the
parties’ external and objective actions, rather than what they intended to say, that
governs the question of mutual assent.” (internal quotations and citation omitted));
see also Mobile Attic, 72 So. 3d at 45 (“Neither the uncommunicated beliefs of a
party nor any misunderstandings regarding the import of particular terms prevent
an objective manifestation of assent from being effective.”).
In sum, Diane Browning and Mary Carrara voluntarily paid the price they
were charged by Hobby Lobby for their merchandise, they were given receipts
showing exactly what they paid and how the price was computed, and they never
complained to store personnel about the amount they paid or how their coupon was
applied. In addition, they never returned any of their merchandise to Hobby Lobby
for a refund. Consequently, Plaintiffs cannot show that Hobby Lobby breached
any contract. Summary judgment is due to be granted on their claims for breach of
contract.

22

C.

The Alabama Deceptive Trade Practices Act 10

The Alabama Deceptive Trade Practices Act (“ADTPA”), Ala. Code § 8–
19–1 et seq., is a consumer protection statute designed to punish persons who
engage in deceptive trade practices. As relevant here, the ADTPA provides that it
is unlawful for a seller to make “a false or misleading statement of fact concerning
the reasons for, existence of, or amounts of, price reductions.” ALA. CODE § 8-195(11).

The ADTPA is a statutory substitute for fraud claims in the specific

circumstances set forth in § 8-19-5. A plaintiff cannot pursue both a statutory or
common law fraud claim together with a claim under ADTPA. See Ala. Code § 819-15; Sam v. Beaird, 685 So. 2d 742, 744 (Ala. 1996).
Cases interpreting the requirements of the ADTPA are few and far between.
In fact, the court could not find, and the parties do not cite, any case dealing
specifically with the section of the ADTPA at issue here, § 8-19-5(11). As such,
other than the statutory language, the court has little guidance on what a plaintiff
must establish to survive a motion for summary judgment on a claim under § 1819-5(11). Although Defendant asserts Plaintiff must still prove certain essential
fraud elements, including the presence of a misrepresentation or omission, intent to
deceive, deception, proximate causation and damages, the cases cited by Defendant
10

Although the Fourth Amended Complaint purports to state a class action under this statute,
(doc. 49 at 15-16), the ADTPA explicitly disallows class actions brought by private parties: “[a]
consumer or other person bringing an action under this chapter may not bring an action on behalf
of a class.” Ala. Code. § 8-19-10(f).
23

do not so hold. See Jackson v. CIT Grp./Sales Financing, Inc., 630 So. 2d 368,
373 (Ala. 1993); Lynn v. Fort McClellan Credit Union, 2013 WL 5707372, at *6-7
(N.D. Ala. Oct. 21, 2013). Instead, both cases look to the language in the statute to
ascertain what a Plaintiff must establish. The court follows this approach.
The Estate contends Hobby Lobby violated the ADPTA by applying Diane
Browning’s 40% off the “regular” price coupon to the “marked” price of $289.99,
rather than the “Always 30% Off” price of $202.99, which the Estate claims was
the true “regular” price of the merchandise. (Doc. 49 at ¶¶ 17-19, 53). Hobby
Lobby argues that the Estate’s ADPTA claim is due to be dismissed because the
Estate cannot establish that Hobby Lobby made any false or misleading statements
to Mrs. Browning.11

11

The court rejects Hobby Lobby’s arguments that the Estate’s ADPTA claim fails because (1)
there is no evidence that Hobby Lobby intended to deceive Mrs. Browning; (2) there is no
substantial evidence that any deceptive action or statement by Hobby Lobby caused Mrs.
Browning any compensable loss; and (3) the Estate cannot predicate its ADTPA claim on Hobby
Lobby’s alleged failure to honor the contractual promise it made in its coupon. (Doc. 59 at 2732). First, § 8-19-5(11) does not include any requirement that a plaintiff show an “intent to
deceive” on behalf of a defendant. Even if that requirement was somehow implied, whether or
not Hobby Lobby intended to deceive Mrs. Browning is a question of fact for the jury to decide.
The mere fact that Mrs. Browning did not present affirmative evidence of a specific intent is
irrelevant. Second, Mrs. Browning suffered a compensable loss in that she paid more for the
chest than she would have paid if the 40% coupon was applied to the “always” price. The
monetary damage is clear and easily calculable. Finally, the court is not persuaded that the
Estate’s allegations as they relate to the ADTPA essentially amount to a claim for breach of
contract. Instead, the allegations fall within those practices proscribed by § 8-19-5(11).
24

Here, there is a question of fact as to whether Hobby Lobby made any false
or misleading statements 12 to Mrs. Browning that could give rise to liability under
the ADTPA. While the price tags and advertisements in and of themselves do not
contain any false or misleading statements, the statements therein, when combined
with the statements in the 40% off coupon create a jury question. The collective
use of the “marked price,” “always price” and the “regular price” necessarily
creates confusion on the part of the consumer that a reasonable juror could
conclude equates with a “misleading statement of fact concerning the . . . amount
of [the] price reductions.” Ala. Code § 9-18-5(11).
The court is not persuaded that the coupon’s statement that it is not valid
with any other “discount” somehow clarifies the coupon’s application. Again, a
question of fact exists as to whether the orange tag stating “Furniture Always 30%
Off” necessarily means it was a “discount” or if it was the “regular” price charged
for that piece of furniture. This is especially true when the price on the orange tag
was the only price for which the furniture was sold. Therefore, the court concludes
a question of fact exists as to whether Hobby Lobby made any false or misleading
statement to Mrs. Browning that could support a claim for violation of the
ADPTA. Summary judgment is due to be denied as to the Estate’s ADTPA claim
for statutory relief.
12

There is no evidence that any Hobby Lobby employees made any false or misleading oral
statements to Mrs. Browning.
25

That being said, the court agrees with Hobby Lobby that the Estate is not
entitled to any injunctive relief under the ADTPA because the Estate does not have
standing to seek injunctive relief. Plaintiff does not reply to Hobby Lobby’s
standing argument. To establish standing for injunctive relief, a plaintiff “must
show a sufficient likelihood that he will be affected by the allegedly unlawful
conduct in the future.” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328
(11th Cir. 2013) (internal quotation marks omitted). Standing for injunctive relief
depends on “a real and immediate—as opposed to a merely conjectural or
hypothetical—threat of future injury.” Id. at 1334 (internal quotation marks
omitted). There is no evidence, or even an allegation in the Fourth Amended
Complaint, that the Estate will ever purchase furniture from Hobby Lobby again.
Additionally, Robin Browning, executor of the Estate, testified he has only been to
Hobby Lobby once with his wife, never returned since the lawsuit was filed, and
never intends to return. (Robin Browning Dep. at 31-32, 58, 94). Hobby Lobby’s
summary judgment motion, as it relates to injunctive relief under ADTPA, is due
to be granted.
D.

The Illinois Consumer Fraud and Deceptive Trade Practices Acts
1.

ICFA

Mary Carrara brings a similar claim under the Illinois Consumer Fraud Act.
She alleges that, when she purchased fabric items marked “Always X% Off” and
26

presented a 40% off coupon at the time of her purchase, Hobby Lobby violated the
ICFA by applying the coupon discount to the higher price displayed on the item
the “marked price”, rather than the lower “Always” price. (Doc. 49 at ¶¶ 25-26, 5862). Hobby Lobby has moved for summary judgment on this claim as well.
To prevail under the ICFA, a plaintiff must establish that: “(1) the defendant
engaged in a deceptive act or practice; (2) the defendant intended that the plaintiff
rely on the deception; (3) the deception occurred in the course of trade and
commerce; (4) actual damage to the plaintiff occurred; and (5) the damage was
proximately caused by the deception.” Davis v. G.N. Mortg. Corp., 396 F.3d 869,
883 (7th Cir. 2005); see Zekman v. Direct Am. Marketers, Inc., 695 N.E.2d 853,
860-61 (Ill. 1998). Hobby Lobby argues that Mrs. Carrara cannot establish several
of these elements. The court need only address the first element.
To maintain an action under the ICFA, “the plaintiff must actually be
deceived by a statement or omission that is made by the defendant.” De Bouse v.
Bayer, 922 N.E.2d 309, 316 (Ill. 2009). The allegedly deceptive statement or
omission “must be looked upon in light of the totality of the information made
available to the plaintiff.” Davis, 396 F.3d at 884; Tudor v. Jewel Food Stores,
Inc., 681 N.E.2d 6, 8 (Ill. App. Ct. 1997). In other words, “a statement that would
have been deceptive in isolation can be non-deceptive when placed in context.”
Muir v. Playtex Prods., LLC, 983 F. Supp. 2d 980, 988 (N.D. Ill. 2013).
27

Here, the totality of information available to Mrs. Carrara dooms her ICFA
claim. Although the same coupon was used with regard to the fabric purchased by
Mrs. Carrara as was used by Mrs. Browning, there is one key difference – the
fabric ticket. At the top of the fabric ticket, there were three columns: yards,
regular price, and total. (Doc. 58-11 at 2). The section relating to the sale and
clearance fabrics contained four columns: yards, regular price, reduced price, and
total. (Id.). It is undisputed that the fabric ticket given to Ms. Carrara before she
purchased fabric marked at “Always 30% Off” listed the “marked price” under the
column labeled “regular price” on the ticket. (See Doc. 58-12 at 2-3). This fact
eliminates the possibility of deception as a matter of law.
Other courts applying the ICFA have found no deception under similar
circumstances. See, e.g., Clark v. Experian Information Solutions, Inc., 256 F.
App’x 818, 823 (7th Cir. 2007) (affirming dismissal of the plaintiff’s ICFA claim,
where the plaintiff was exposed to information (a website disclosure) that provided
the information he alleged was not disclosed); Ibarrola v. Kind, LLC, 83 F. Supp.
3d 751, 759 (N.D. Ill. 2015) (dismissing ICFA claim of plaintiff who claimed she
was deceived by the defendant’s use of the term “no refined sugars” on its product
label, where she “should have considered the other information she encountered on
the product’s packaging”); Davis, 396 F.3d at 884 (no deception where plaintiff
was alerted in a “number of ways” that her understanding was inconsistent with the
28

defendant’s other disclosures). As such, Hobby Lobby is entitled to summary
judgment on Mrs. Carrara’s ICFA claim. 13
2.

IDTPA

Along with her ICFA claim, Mrs. Carrara seeks injunctive relief under the
Illinois Deceptive Trade Practices Act. Under Section 2 of the IDTPA, a person
may violate the statute in a number of explicit ways. See 815 Ill. Comp. Stat.
510/2(a)(11). The sole remedy for these statutory violations is injunctive relief
(plus attorneys’ fees). 815 Ill. Comp. Stat. 510/3.
The IDTPA “was not intended to be a consumer protection statute but,
rather, was intended to prohibit unfair competition” among businesses. Robinson
v. Toyota Motor Credit Corp., 735 N.E.2d 724, 735 (Ill. App. Ct. 2000), aff'd in
relevant part, 775 N.E.2d 951 (2002). “It is primarily directed toward acts which
unreasonably interfere with another’s conduct of his business.” Popp v. Cash
Station, Inc., 613 N.E.2d 1150, 1156 (Ill. App. Ct. 1992). A consumer action is
possible under the IDTPA, however, in limited circumstances where a consumer
can show that she is likely to be damaged in the future by a deceptive practice of
the defendant. Id.; accord Howard v. Chicago Transit Auth,, 931 N.E.2d 292, 299
(Ill. App. Ct. 2010).
13

As part of her ICFA clam, Mrs. Carrara seeks injunctive relief in addition to damages.
Because she has no valid ICFA claim as discussed above, she is not entitled to any injunctive
relief under the ICFA. See Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 740 (7th Cir.
2014) (“Absent a showing of a violation of ICFA, a plaintiff is not entitled to injunctive relief.”).
29

“‘The problem in most consumer actions under the [IDTPA] is the inability
to allege facts indicating the likelihood of damage in the future.’” Aliano v.
Louisville Distilling Co., 115 F. Supp. 3d 921, 928 (N.D. Ill. 2015) (quoting
Howard, 931 N.E.2d at 299). Where the plaintiff is aware of the alleged deceptive
practice at the time she files suit, as is the case here, courts have refused to grant
injunctive relief because the possibility for future deception of the plaintiff has
ended. See, e.g., McDonnell v. Nature’s Way Prods., LLC, 2017 WL 1149336, at
*2 (N.D. Ill. Mar. 28, 2017) (plaintiff’s “present awareness of Nature’s Way’s
alleged deceptive labeling practices—as evidenced by the filing of this lawsuit—
means she is unlikely to be harmed in the future by Nature’s Way’s labeling
claims”); Demedicis v. CVS Health Corp., 2017 WL 569157, at *2 (N.D. Ill. Feb.
13, 2017) (dismissing injunctive relief claim because the plaintiff, currently aware
of the defendant’s allegedly deceptive practices, was not likely to be harmed in the
future); Aliano, 115 F. Supp. 3d at 929 (noting the lack of “any authority
suggesting that a plaintiff can obtain injunctive relief under the [IDTPA] when the
plaintiff itself will not be deceived or confused in the future”); Howard, 931
N.E.2d at 299; Popp, 613 N.E.2d at 1157.
Ms. Carrara’s claim for injunctive relief under the IDTPA fails for the same
reason. She has effectively conceded that she will not be deceived in the future,
because she is presently aware of Hobby Lobby’s practices concerning the
30

application of its 40% off coupon. (Carrara Dep. at 97-98.) Her request for
injunctive relief, therefore, fails.
IV.

CONCLUSION
For the foregoing reasons, Hobby Lobby’s motion for summary judgment

against Carrara’s Illinois Consumer Fraud and Deceptive Trade Practices Acts
claims is due to be granted.

(Doc. 55).

Hobby Lobby’s 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. A separate
order consistent with this opinion will be entered.
DATED this 27th day of September, 2018.

_________________________________
JOHN E. OTT
Chief United States Magistrate Judge

31