Lisa Penner, on behalf of herself and all others similarly situated; v. CHASE BANK USA NA and BANK ONE DELAWARE NA

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LISA PENNER, on behalf of herself and
all others similarly situated; et al.,
Plaintiffs - Appellants,
v.
CHASE BANK USA NA and BANK
ONE DELAWARE NA,
Defendants - Appellees.
No. 06-35726
D.C. No. CV-06-05092-FDB
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted February 4, 2009
Submission Withdrawn February 10, 2009
Resubmitted September 16, 2011
Seattle, Washington
FILED
NOV 04 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Following the death of Judge Pamela A. Rymer, Judge Stephen Reinhardt* *
was drawn as her replacement on the panel.
2
Before: B. FLETCHER, REINHARDT and FISHER, Circuit Judges.* *
Plaintiffs sued Chase Bank for its practice of increasing cardholders’ interest
rates upon default or delinquency and retroactively applying the increased rates to
the beginning of the latest payment cycle.
1. As plaintiffs concede, their Truth in Lending Act and breach of
contract claims have been foreclosed by the Supreme Court’s decision in Chase
Bank USA, N.A. v. McCoy, 131 S. Ct. 871 (2011).
2. Plaintiffs’ declaratory relief, unconscionability and illegal penalty
claims are foreclosed because Delaware law permits Chase’s practices. See McCoy
v. Chase Manhattan Bank, USA, Nat. Assoc., 654 F.3d 971, 975 (9th Cir. 2011).
3. Plaintiffs fail to state a claim under the Washington Consumer
Protection Act (WCPA), Wash. Rev. Code § 19.86.020. To succeed under the
WCPA, plaintiffs must show that Chase’s actions had “the capacity to deceive a
substantial portion of the public.” Hangman Ridge Training Stables, Inc. v. Safeco
Title Ins. Co., 719 P.2d 531, 535 (Wash. 1986) (emphasis omitted). Here,
however, “Chase openly and expressly notifies cardholders of the actions it
reserves the right to take in the event of a default.” McCoy, 654 F.3d at 975.

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3
The parties’ October 6, 2008 and October 20, 2008 motions for judicial
notice are denied.
AFFIRMED.

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