Reference Pricing Not Actionable Under Washington Law Per State Supreme Court Decision

Key Takeaways

• The Washington Supreme Court recently ruled against a plaintiff’s claims that the originally listed price of an on-sale article of clothing was deceptive and constituted a “false discounting scheme.”
• The court found no evidence that the plaintiff suffered economic injury, rejecting claims that the alleged reference pricing violated Washington’s Consumer Protection Act (CPA).
• Businesses should be aware of the implications this case carries for the actionability of reference pricing and the scope of similar rulings.

On April 2, 2026, the Washington Supreme Court concluded that the practice of reference pricing—representing that a product is sold at a discount—is not actionable under the CPA without other allegations of economic loss. In a 6-3 opinion, the court held in Montes v. SPARC Grp. LLC that a “consumer does not suffer an injury in ‘her business or property’ when she purchases—and obtains and keeps—the fungible product she sought to obtain but does so because the seller misrepresented the product’s price history.” This Update provides key takeaways for businesses from this recent decision.

What Was the Case About?

Consumer Shawnna Montes purchased a pair of leggings at Aéropostale for $6.00. Immediately next to the advertised price of $6.00, the retailer had included a struck-out price of $12.50. 

Montes brought suit in the U.S. District Court for the Eastern District of Washington, claiming that the retailer’s reference price of $12.50 amounted to a “false discounting scheme” in violation of the CPA. Montes sought to represent a class of Washington consumers who would not have purchased the products or paid more for them as a result of the retailer’s reference pricing. Montes sought actual and treble damages, as well as attorneys’ fees and costs under Washington’s CPA.

What Led to the Court’s Decision?

The Eastern District of Washington dismissed Montes’ case. That court held that Montes failed to allege an actual economic injury. The federal court reasoned that Montes did not adequately allege that she “did not receive the value that she paid for;” that is, she paid $6.00 for leggings that were worth $6.00.

Montes appealed. The U.S. Court of Appeals for the Ninth Circuit concluded that Washington case law was not clear about whether Montes alleged an injury to “business or property” as required to state a CPA claim. The Ninth Circuit certified a question to the Washington Supreme Court to address whether a CPA claim was actionable when a consumer paid the advertised price as a result of a purported misrepresentation of the reference price.

What Did the Court Decide?

The Washington Supreme Court noted that Montes advanced two theories of CPA liability. First, she alleged she would not have made the purchase but for the purported price misrepresentation. Second, she claimed the allegedly deceptive price history “inflated” the product’s value.

The court squarely rejected both of Montes’ theories. As to the first, the court reasoned that the plaintiff received exactly the product (and value) for which she paid, and any disappointment stemming from discovering the item’s actual price history was not an injury to business or property. The court was explicit: “[E]xpectations do not count as ‘business or property,’” and “disappointment is not a cognizable CPA injury.” The court explained that “[a]bsent an allegation that items were objectively different from or worth less than the purchase price … [t]he fact that plaintiff may have been manipulated into purchasing the items because she believed she was getting a bargain does not necessarily mean she suffered economic harm.” The second theory was also rejected as the plaintiff’s own allegations did not support it. Ultimately, the majority concluded “Montes received the leggings she wanted at the price for which they were offered.”

In dissent, three justices would have found an economic injury under the CPA, reasoning that the statute should be read liberally to include both of Montes’ theories of liability.

Implications for Businesses

The court’s Montes decision presents two key takeaways for businesses.

First, reference pricing, standing alone, is not actionable under Washington’s CPA. The Montes majority took care to note that a CPA violation was not created simply by virtue of a retail transaction at the price the consumer expected to pay. That said, the court noted a CPA violation might occur when “the consumer receives a product or service that is objectively different from or less valuable than the product she thought she was buying.” 

Second, an unsuccessful challenge to reference pricing is not exclusive to Washington. The Montes court noted that the New Jersey Supreme Court had dismissed virtually identical claims against Aéropostale in 2024 under that state’s consumer fraud statute for lack of actual economic loss. Robey v. SPARC Group LLC, 256 N.J. 541, 311 A.3d 463 (2024).

Perkins Coie has extensive experience litigating class-action matters in Washington’s state and federal courts. If you have any questions concerning the developments discussed in this Update, please contact members of Perkins Coie’s field-leading Retail & Consumer Products team.