FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AARON LEIGH-PINK; TANA 

EMERSON,

Plaintiffs-Appellants,

v.

RIO PROPERTIES, LLC,

Defendant-Appellee.

No. 19-17556

D.C. No.

2:17-cv-02910-GMNVCF

ORDER CERTIFYING 

QUESTION TO THE 

SUPREME COURT OF 

NEVADA

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, District Judge, Presiding

Argued and Submitted December 10, 2020

Pasadena, California

Filed March 3, 2021

Before: Ronald M. Gould and Ryan D. Nelson, Circuit 

Judges, and Brian M. Cogan,* District Judge.

Order

* The Honorable Brian M. Cogan, United States District Judge for 

the Eastern District of New York, sitting by designation.
2 LEIGH-PINK V. RIO PROPERTIES

SUMMARY**

Certification to Nevada Supreme Court

The panel certified to the Nevada Supreme Court the 

following question:

For purposes of a fraudulent concealment 

claim, and for purposes of a consumer fraud 

claim under NRS § 41.600, has a plaintiff 

suffered damages if the defendant’s 

fraudulent actions caused the plaintiff to 

purchase a product or service that the plaintiff 

would not otherwise have purchased, even if 

the product or service was not worth less than 

what the plaintiff paid?

ORDER

Under Rule 5 of the Nevada Rules of Appellate 

Procedure, we respectfully certify to the Supreme Court of 

Nevada the questions of law set forth in Section III of this 

order. These questions will be determinative of claims 

pending before this court, and it appears to us that there is no 

controlling precedent in the decisions of the Supreme Court 

or Court of Appeals of Nevada. Nev. R. App. P. 5(a).

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
LEIGH-PINK V. RIO PROPERTIES 3

I.

This suit arose after plaintiffs Aaron Leigh-Pink and 

Tana Emerson stayed at the Rio All-Suite Hotel and Casino 

(the “Rio”) in Las Vegas. The rooms were complimentary, 

so the only charge that plaintiffs incurred was a $34.01 per 

day “resort fee” that covered access to the internet, 

telephones, and use of the fitness room. At first, the stays 

seemed uneventful. But unbeknownst to plaintiffs, the Rio’s 

water system had been contaminated with legionella, the 

bacteria that cause Legionnaires’ disease.

Plaintiffs allege that the Rio knew of that contamination 

based on the following allegations. Before plaintiffs visited 

the hotel, the Rio had received a letter from the Southern 

Nevada Health District (“SNHD”) stating that two guests 

had contracted Legionnaires’ disease. SNHD investigators 

met with both the Rio’s Vice President and its Facilities 

Senior Manager. The investigators stated that they planned 

to conduct an “environmental assessment,” and at a followup meeting, they gave a PowerPoint presentation on the 

dangers of the bacteria. Yet that same day, plaintiffs allege, 

the Rio refused to remove “at least one guest” from a room 

that the SNHD wanted to test for legionella.

A few months later, the Rio sent a letter notifying 

previous guests of the contamination. It reported that two 

guests had contracted Legionnaires’ disease and that “recent 

testing indicated the presence of the Legionella bacteria in 

water systems at the Rio.” The hotel claimed to have taken 

“aggressive remediation action to ensure the safety of the 

water,” but it admitted that “[u]ntil the system was fully 

treated, taking a shower or bath with the jets running may 

have put [guests] at risk by breathing water in the air.” The 

Rio did not share that same information with any incoming 

guests.
4 LEIGH-PINK V. RIO PROPERTIES

A guest soon commenced this putative class action in 

Clark County District Court. After removal, Leigh-Pink and 

Emerson became the named plaintiffs. They had not 

contracted Legionnaires’ disease, but based on the Rio’s 

alleged failure to disclose the legionella, they sought to 

recover the resort fee. Their operative complaint asserted 

claims for (1) fraudulent concealment, (2) negligence, 

(3) unjust enrichment, (4) “declaratory relief,” and (5) two 

consumer fraud claims under Nevada Revised Statutes 

(“NRS”) § 41.600. These two consumer fraud claims derive 

from NRS § 205.377(1), which prohibits “fraud or deceit 

upon a person by means of a false representation or omission 

of a material fact,” and NRS § 598.0923(2), which prohibits 

failures “to disclose a material fact in connection with the 

sale or lease of goods or services.” The district court 

dismissed for failure to state a claim, and this appeal 

followed.

In a separate memorandum filed concurrently with this 

opinion, we reverse the dismissal of the claim for unjust 

enrichment and affirm the dismissal of the claims for 

negligence, declaratory relief, and violations of 

NRS § 205.377(1). We also reject all but one of the Rio’s 

arguments regarding the claims for fraudulent concealment 

and violations of NRS § 598.0923(2). The memorandum 

leaves one remaining issue that is addressed here: whether 

plaintiffs have suffered damages for purposes of their claims 

for fraudulent concealment and violations of 

NRS § 598.0923(2).

II.

The district court concluded that plaintiffs did not suffer 

any damages. The court noted that plaintiffs did not allege 

personal injury or property damage, which meant that the 

damages, if any, “were economic in nature.” The resort fee 
LEIGH-PINK V. RIO PROPERTIES 5

could not fall within that category, the court continued, since 

plaintiffs received access to the amenities that the fee 

covered. Thus, plaintiffs received the “benefit of the 

bargain” and suffered no damages.

The Rio echoes that analysis on this appeal. It contends 

that the only appropriate measures of damages are (1) “the 

out-of-pocket measure, which, in the misrepresentation 

context, is comprised of ‘the difference between what the 

defrauded party gave and what he actually received’”; and 

(2) “[t]he benefit-of-the-bargain measure, which consists of 

‘the value of what the defrauded party would have received 

had the representations been true, less what he actually 

received.’” Davis v. Beling, 278 P.3d 501, 512 (Nev. 2012) 

(alterations adopted) (quoting Collins v. Burns, 741 P.2d 

819, 822 (Nev. 1987) (per curiam)). Under either measure, 

the Rio argues, plaintiffs cannot recover because they never 

alleged that access to the internet, telephones, and fitness 

room was worth less than the $34.01 they paid. In short, 

plaintiffs did not suffer damages because they “received 

exactly what they paid for.”

Plaintiffs respond with a simple but untested theory. 

They point to their allegation that they would not have stayed 

at the Rio – and would not have paid the resort fee – had the 

Rio disclosed the legionella contamination. Thus, say 

plaintiffs, they “have alleged recoverable damages in the 

form of the money they paid to the Hotel which they would 

not otherwise have paid.”

We do not understand Nevada courts to have addressed 

this issue of damages – i.e., whether a plaintiff suffers 

damages when, due to the defendant’s misrepresentation, the 

plaintiff purchases a product or service that the plaintiff 

would not otherwise have purchased, even though the 
6 LEIGH-PINK V. RIO PROPERTIES

product or service was not worth less than what the plaintiff 

paid.

In other cases, this court has observed that “[w]here 

Nevada law is lacking, its courts have looked to the law of 

other jurisdictions, particularly California, for guidance.” 

Eichacker v. Paul Revere Life Ins. Co., 354 F.3d 1142, 1145 

(9th Cir. 2004) (quoting Mort v. United States, 86 F.3d 890, 

893 (9th Cir. 1996)). This court, too, has looked to 

California “to inform [its] analysis” of Nevada law. Id. 

Here, the most instructive California case is Kwikset Corp. 

v. Superior Court, 246 P.3d 877 (Cal. 2011). It concerned a 

defendant that labeled its products as “Made in U.S.A.” even 

though they “contained foreign-made parts or involved 

foreign manufacture.” Id. at 881. The plaintiffs did not 

allege that the products were overpriced or defective; they 

instead relied on their “patriotic desire to buy fully 

American-made products.” Id. at 883. The court held that 

“plaintiffs who can truthfully allege they were deceived by a 

product’s label into spending money to purchase the product, 

and would not have purchased it otherwise, have ‘lost money 

or property’ within the meaning of” California’s Unfair 

Competition Law. Id. at 881.

The federal district court in Nevada has followed this 

lead. In Cruz v. Kate Spade & Co., LLC, No. 2:19-cv-952, 

2020 WL 5848095, at *1 (D. Nev. Sept. 30, 2020), the court 

addressed allegations that the defendant had “indicat[ed] the 

items [it sold] were significantly discounted from the prices 

listed on the tags” when, in fact, the items were “never 

actually sold at the reference price marked on the tags.” The 

plaintiff did not allege that the items were worth less than 

what she paid. Id. at *5. Yet she insisted “that she did not 

get the deal she thought she was getting,” and she alleged 

that she would not have purchased the items “had she known 
LEIGH-PINK V. RIO PROPERTIES 7

their true market value.” Id. at *1. The district court 

concluded that the plaintiff had adequately pleaded damages 

for purposes of a consumer fraud claim under NRS § 41.600. 

See id. at *5; see also Hinojos v. Kohl’s Corp., 718 F.3d 

1098, 1104–05 (9th Cir. 2013) (holding that similar 

allegations were sufficient to establish that a plaintiff “lost 

money or property” under California’s Unfair Competition 

Law).

These authorities do not reflect a consensus, for courts in 

other jurisdictions have rejected plaintiffs’ theory. See Small 

v. Lorillard Tobacco Co., 720 N.E.2d 892, 898 (N.Y. 1999) 

(rejecting the idea that, without more, “consumers who buy 

a product that they would not have purchased, absent a 

manufacturer’s deceptive commercial practices” have 

suffered an injury under the state’s consumer fraud statute); 

see also Benson v. Fannie May Confections Brands, Inc., 

944 F.3d 639, 648 (7th Cir. 2019) (reaching the same 

conclusion under Illinois law); In re Avandia Mktg. Sales 

Pracs. & Prod. Liab. Litig., 639 F. App’x 866, 869 (3d Cir. 

2016) (reaching the same conclusion under Missouri law).

We thus face a question that involves matters of state law 

and policy that have not been addressed by the Supreme 

Court or Court of Appeals of Nevada, and that have divided 

courts in other jurisdictions. Because we believe that these 

questions are best resolved by the highest court in Nevada, 

we conclude that certification is appropriate.

III.

The question of law we certify is:

For purposes of a fraudulent concealment 

claim, and for purposes of a consumer fraud 

claim under NRS § 41.600, has a plaintiff 
8 LEIGH-PINK V. RIO PROPERTIES

suffered damages if the defendant’s 

fraudulent actions caused the plaintiff to 

purchase a product or service that the plaintiff 

would not otherwise have purchased, even if 

the product or service was not worth less than 

what the plaintiff paid?

We do not intend this framing to restrict the Supreme 

Court’s discretion. Should it accept certification, it may 

reformulate the question and consider any other issues it 

deems relevant. See, e.g., United States v. Figueroa-Beltran, 

892 F.3d 997, 1004 (9th Cir. 2018).

IV.

We respectfully request that the Supreme Court of 

Nevada accept and decide the question certified herein. The 

clerk of this court shall forward a copy of this order, under 

official seal, to the Supreme Court of Nevada, along with 

copies of all briefs and excerpts of the record that have been 

filed in this court. We recognize that, should the Supreme 

Court of Nevada accept certification, “[t]he written opinion 

of the Supreme Court stating the law governing the questions 

certified . . . shall be res judicata as to the parties.” Nev. R. 

App. P. 5(h).

Further proceedings in our court are stayed pending 

resolution of the Supreme Court’s decision whether to accept 

the certified question and, if so, the receipt of the answer to 

the certified question. The clerk is directed to 

administratively close this docket, pending further order. 

The panel will resume control and jurisdiction on the 

certified question upon receiving an answer to the certified 

question or upon the decision to decline to answer the 

question.
LEIGH-PINK V. RIO PROPERTIES 9

The parties shall notify the clerk of this court within 

14 days of any decision by the Supreme Court of Nevada to 

accept or decline certification. If the Supreme Court accepts 

certification, the parties shall file a joint status report every 

six months after the date of acceptance, or more frequently 

if the circumstances warrant. As required by Rules 5(c)(4) 

and 5(c)(5) of the Nevada Rules of Appellate Procedure, we 

have provided in the appendix the names and addresses of 

counsel and have designated which party will serve as the 

appellant and the respondent should the Supreme Court of 

Nevada accept certification.

IT IS SO ORDERED.

/s/ Brian M. Cogan

Brian M. Cogan, District Judge
10 LEIGH-PINK V. RIO PROPERTIES

APPENDIX

For Appellants Aaron Leigh-Pink and Tana Emerson:

Robert A. Waller, Jr., Law Office of Robert A. Waller, 

Jr., P.O. Box 999, Cardiff-by-the-Sea, CA 92007.

For Respondent Rio Properties, LLC:

Richard Fama, Cozen O’Connor P.C., 45 Broadway 

Atrium, Suite 1600, New York, NY 10006.

F. Brenden Coller, Cozen O’Connor P.C., 1650 Market 

Street, Suite 2800, Philadelphia, PA 19103.