Laurie Munning v. The Gap, Inc. et al

Filing 25

ORDER re: October 17, 2016 Hearing. Signed by Judge Thelton E. Henderson on 10/13/16.(tehlc2, COURT STAFF) (Filed on 10/13/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LAURIE MUNNING,

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Plaintiff,

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v.
THE GAP, INC., et al.,

Case No. 16-cv-03804-TEH
ORDER RE: OCTOBER 17, 2016
HEARING

Defendants.

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Counsel shall come prepared to address the following questions at the October 17,

United States District Court
Northern District of California

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2016 hearing on Defendants’ Motion to Dismiss (“Mot.”):

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Both Parties
1.
Which state’s laws should this Court apply when analyzing whether the
arbitration provision in the credit card agreement applies to this case?

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2.

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Assuming this Court finds Plaintiff’s claims are subject to the arbitration
provision in her credit card agreement, how should this Court reconcile the
arbitration provision with the forum selection provision on the Defendants’
factory website(s)? See Decl. of Todd M. Friedman, ¶ 2 (EFC No. 19-1).

For Plaintiff
1.
You failed to reply to Defendants’ arguments regarding Count 1 (violation of
state consumer statute), Count 10 (unjust enrichment), injunctive relief,
equitable relief, and restitution. See Reply at 2-3. Do you agree these claims
should be dismissed? If not, why should the Court not dismiss these claims,
with prejudice, for failure to respond?

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2.

Defendants allege you have not sufficiently pleaded an ascertainable loss.
Mot. at 20:3-9. What exactly was your loss? Can you show your loss is
quantifiable or measurable, rather than merely theoretical?

3.

You state that the discount on the three items you purchased from
Defendants was a “specific and material term of the contract” between the
parties. Opp’n at 22:2-3. Can you cite any legal authority supporting your
claim?

4.

You state that a description of discounted prices was an express warranty
because it “was a part of the basis of the bargain, as it induced Plaintiff to

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purchase the items.” Opp’n at 22:24-26. Can you cite any legal authority
supporting your claim?

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5.

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For Defendants
1.
You argue extensively that Plaintiff has failed to allege sufficient facts to
demonstrate a reasonable consumer is likely to be misled into thinking that
the strikethrough amount was the original price of the item. See e.g., Mot. at
2:20-26; Reply at 5:26-27. How do you believe a reasonable consumer
would interpret the strikethrough amount advertised on your websites?
2.

You argue that Plaintiff’s claims should be dismissed because they “lump”
multiple defendants together and because Plaintiff “fails to state any facts
illustrating each defendant’s involvement in the allegedly false advertising
practices.” Reply at 3-4. How exactly could the Plaintiff or an average
consumer obtain knowledge of the each defendant’s involvement in the
alleged practices?

3.

You argue “Plaintiff’s claim should be dismissed because they are subject to
the arbitration provision in her Banana Republic Visa card agreement.” Mot.
at 22:15-16. Are you asking the Court to dismiss Plaintiff’s claims or to
compel arbitration? Does your burden vary depending on whether you seek
dismissal or arbitration?

4.

Assuming the Court finds Defendants can enforce the arbitration agreement,
why exactly are Plaintiff’s claims “related to” the Plaintiff’s account?
Doesn’t the fact that Plaintiff’s allegations against Defendants are not
dependent on her method of payment show that her claims against Defendant
are unrelated to her credit card account?

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United States District Court
Northern District of California

Defendants allege the economic loss rule bars your negligent
misrepresentation claim because you allege purely economic losses and have
not suffered a personal injury or property damage. Reply at 10:14-17. Do
you concede that you have only suffered an economic harm as a result of
your alleged claims?

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IT IS SO ORDERED.

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Dated: 10/13/16

_____________________________________
THELTON E. HENDERSON
United States District Judge

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