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Cavlovic v. J.C. Penney Corp.

United States Court of Appeals for the Tenth Circuit

March 7, 2018, Filed

No. 17-3174

Opinion

 [*1053]  ORDER AND JUDGMENT1

Defendant-Appellant J.C. Penney Corporation, Inc. appeals the denial of its motion to compel arbitration. It filed the motion in the midst of a putative class action filed by lead Plaintiff-Appellee Ann Cavlovic, alleging that J.C. Penney used fraudulent advertising practices. The district court denied review of the magistrate judge's order denying J.C. Penney's motion to compel arbitration, agreeing that J.C. Penney was not a party to one of the two contracts [**2]  at issue, and that Cavlovic's allegations fall outside the scope of the other contract. Exercising jurisdiction under 9 U.S.C. § 162 and 28 U.S.C. § 1292(a)(1), we AFFIRM.

A. Allegations set out in Cavlovic's complaint

On December 16, 2016, Cavlovic filed a class action complaint in Kansas state court, alleging J.C. Penney used a "False Former Price Advertising Scheme." App. at 15. J.C. Penney allegedly "would mark up its private-branded and exclusive-branded apparel and accessories by a significant margin and then immediately offer those products at what it represented to be steep discounts." Id. Cavlovic sought to represent a group of more than 100 people who, between December 2013 and December 2016, "purchase[d] from [J.C. Penney] in Kansas one or more private and/or exclusive branded items at a discount of at least 30 [percent] off of the state[d] 'original' or 'regular' price, and who have not received a refund or credit for their purchase(s)." Id. at 24.

Cavlovic alleged she was part of this class because of a purchase she made on September 23, 2014. On that date, Cavlovic visited a J.C. Penney store in Kansas and purchased 14-carat gold hoop earrings for $171.66. The tag on the earrings advertised that the previous price [**3]  was $524.98, but that J.C. Penney was now selling the earrings for $209.99. J.C. Penney had an additional sale that day, so Cavlovic received an extra 25 percent off the already marked-down price.

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884 F.3d 1051 *; 2018 U.S. App. LEXIS 5711 **; 2018 WL 1181237

ANN CAVLOVIC, Plaintiff - Appellee, v. J.C. PENNEY CORPORATION, INC., Defendant - Appellant.

Prior History:  [**1] (D.C. No. 2:17-CV-02042-JAR-TJJ). (D. Kan.).

Cavlovic v. J.C. Penney Corp., 2017 U.S. Dist. LEXIS 109420 (D. Kan., July 14, 2017)

CORE TERMS

arbitration, Rewards, credit card, compel arbitration, parties, district court, allegations, advertising, earrings, magistrate judge, third party, arbitration provision, venue, waived, card, fraudulent, discount

Business & Corporate Compliance, Pretrial Matters, Alternative Dispute Resolution, Judicial Review, Civil Procedure, Appeals, Standards of Review, De Novo Review, Arbitration, Federal Arbitration Act, Orders to Compel Arbitration, Clearly Erroneous Review, Contracts Law, Contract Conditions & Provisions, Arbitration Clauses, Arbitrability, Contract Formation, Consideration, Enforcement of Promises, Contracts Law, Third Parties, Governments, Courts, Authority to Adjudicate, Contract Interpretation, Intent, Arbitration Agreements