Nogin E-Commerce Platform's Answer Denies Fraudulent 'Pricing Scheme'

Plaintiff Trisha Teperson “is without sufficient knowledge” to form a belief for her allegations about Nogin’s pricing actions on its e-commerce platform, said the defendant’s Thursday answer (docket 8:23-cv-00281) to Teperson’s February false advertising class action in U.S. District Court for Central California in Santa Ana. Nogin “deceptively” advertised products from a “false reference price,” the San Diego resident alleged.

Through a false and misleading marketing, advertising and pricing scheme, Nogin artificially inflates prices of products it sells, in violation of California’s Unfair Competition and False Advertising Laws and its Consumer Legal Remedies Act, alleges Teperson. She filed the suit on behalf of her and others who have bought products through shopjustice.com that were “deceptively represented as discounted” from a false reference price and seeks actual, statutory and punitive damages; an award of declaratory and injunctive relief; and an order that the defendant “engage in a corrective advertising campaign.”

In the complaint, plaintiff gave the hypothetical example of a DVD seller, “parallel to” Nogin’s “deceptive business practices,” to illustrate the alleged pricing scheme. By presenting consumers with a false “original” price of $100 for a DVD it’s selling for a 90% discount at $10, the seller has “fabricated an increase in demand for the DVD through the perceived value of both the DVD itself and the substantial discount” of $90, said the complaint. “Consumers’ increased willingness and demand” to pay $10 for the DVD “will in turn impact the overall market price of the DVD,” it said. The seller can create a “false market price” of $10 for a DVD that has a value of $5, it said.

Teperson’s actual purchase was a pajama set advertised for $46 that she bought for $26.99 on Nogin’s website. The product was “never offered for sale at the original price” shown on the website “and certainly not within the 90 days” preceding purchase, a violation of the California Business and Professional Code, said the plaintiff. She would not have made the purchase except for the steep discount advertised, she said, saying she would like to buy from the e-commerce site in the future “but cannot be certain of the veracity” of its advertised bargains.

Plaintiff “fails to state a claim” against Nogin upon which relief can be granted, and her claims are barred by statutes of limitation, said Nogin’s answer. It denies that the court has original jurisdiction since the matter of the controversy doesn’t exceed $5 million. Nogin also denied its offices are based in Costa Mesa, California, as stated in the complaint.

The case can’t meet the California Code of Civil Procedure requirements and corresponding case law to maintain a class action, lacking sufficient numerosity and commonality of injuries and damages, the filing said. Nogin denied its advertising and marketing were misleading or deceptive and said claims fail because neither Teperson nor the general public were deceived by its alleged action. Plaintiff is precluded from recovery under the doctrine of unclean hands, it said.

Nogin’s marketing and pricing with respect to the subject products were not false or misleading, so they can’t constitute commercial speech under provisions of U.S. and California constitutions, said the answer. Its conduct with respect to items in question was “fair and truthful” based on existing knowledge at the time, it said. Plaintiff is not entitled to damages because defendant “made good faith efforts to comply” with applicable laws, and she’s precluded from recovery by the Voluntary Payment Doctrine, the answer said.