UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SARA HAWES

Plaintiff

v.

MACY’S WEST STORES,INC.

Defendant

Case No. 1:17-cv-00754

Judge Timothy S. Black

PLAINTIFF’S OPPOSITION TO DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT
1

INTRODUCTION

Plaintiff Sara Hawes purchased bed sheets from Defendant Macy’s West Stores, 

Inc., at one of its California retail locations. 1 Macy’s represented on the packaging and 

labeling of the sheets that they had a 900 thread count.2 Bed sheet thread counts are a 

primary and important way in which a retailer communicates quality to consumers.3 And 

a difference in the thread count between two sheets that otherwise have the same 

characteristics has a direct influence on pricing: the higher the count, the higher the 

price.4 When Hawes found the sheets to have a lower-quality feel than she expected a 

900-count sheet to have, she contacted a consumer-rights attorney to investigate.5 Expert 

testing of the sheets found the thread count was actually 227.6

Hawes brought this case—and did so on behalf of a proposed class of California 

consumers7—to seek relief arising from Macy’s thread-count misrepresentations. After 

an extensive pleadings battle under Civil Rule 12, the Court approved an operative 

1 See Exhibit 1, Photographs of the Packaging, Receipt, and Label of the Sheets Purchased by Ms. Hawes 

(Hawes_OH_001 to Hawes_OH_003). Ms. Hawes authenticated the photos during her deposition. See 

Exhibit 2, Deposition of Sara Hawes, pp. 132-133.

2 See Ex. 1, Photos.

3 See Ex. 2, Hawes Depo. at 49, 51 (“I have been made to believe ... through marketing and advertising ... if 

sheets have a higher thread count, they are a higher quality sheet.... The knowledge that most people have 

that the higher the thread count, the better the sheet.”); see also ECF #64, Third Amended Complaint, ¶¶20-

24 (collecting publicly available surveys regarding the relationship between thread counts and perceptions 

of quality); accord ECF #84, Motion for Class Certification, Appendix (collecting publicly available 

information regarding consumer use of thread count as a synecdoche for quality); see also ECF #84-1,

Report of Expert Sean Cormier, p. 4 (the association between thread count and quality is well known in the 

industry and by the public). Mr. Cormier adopted the opinions in his report during his deposition. See 

generally ECF #115-2, Deposition of Sean Cormier.

4 See Exhibit 3, Rule 30(b)(5) Deposition of Macy’s West Stores, Inc. by Designee Danielle Swift, p. 57 

(where two sheets have otherwise identical characteristics—weave, size, color, etc.—the one with a higher 

thread count will command a higher price); accord Exhibit 4, Deposition of Sal Ciniglio, pp. 31-33, 76.

5 See Ex. 2, Hawes Depo. at 79.

6 See ECF #84-1, Cormier Report at 17; accord ECF #115-1, Rebuttal Report of Expert Sean Cormier.

7 See generally ECF #84, Certification Motion (seeking to represent a class of California consumers who 

purchased CVC sheets from Macy’s retail locations).
2

complaint with eight causes of action: three under the California Unfair Competition Law; 

one under the California Business & Professions Code; one under the California 

Consumer Legal Remedies Act; and three under the common law (express warranty, 

fraud, and unjust enrichment.8 Macy’s recently filed a Motion for Summary Judgment

(ECF #117) that again seeks dismissal of certain claims under pleading rules: the prayers

for equitable (pp. 11-13) and injunctive relief (pp. 29-31), and the unjust enrichment 

claim (p. 21). We address these issues in Section II of the Argument below.

Macy’s also deploys what it calls a garden-variety “innocent retailer defense.” (Id.

at 4, 14-20.) Macy’s claims that it did not participate in, have control over, adopt, or even 

know about the thread-count misrepresentations it made on the packaging and labels of 

the bed sheets it sold in its retail locations. (Id. at 14-15, 18-20.) These assertions are so 

entirely contrary to the record. What the evidence shows is this:

• Macy’s knows that an international industry-governing standard, ASTM 

3775, controls how to count threads in the Chief Value Cotton (CVC) sheets.

• Macy’s bed sheets are supplied by an importer called AQ Textiles, which is 

led by Larry Queen, who quickly grew the business by promising highthread-count sheets at prices which somehow undercut his competitors.

• Queen long ago disclosed to Macy’s that he had developed an alternative 

approach on how to count threads in CVC sheets, but that it had not been 

accepted by the ASTM, despite his lobbying efforts.

• AQ repeatedly provided Macy’s with thread-count testing reports which 

confirmed that the counting method was Queen’s own and not the ASTMstandard method.

• Macy’s personnel worked closely with AQ personnel in developing the 

packaging and labels of the sheets, with Macy’s ultimately responsible for 

the representations on them. 

8 See ECF #64, Third Amended Complaint at Counts Two through Nine. Former Plaintiff Amy Hill had 

brought an additional claim under Missouri law on behalf of herself and a proposed Missouri class; those 

claims have all been voluntarily dismissed. See ECF #72, Stipulation for Dismissal by Amy Hill.
3

• Despite Macy’s actual and constructive knowledge that the thread-count 

representations it was making were inconsistent with the ASTM standard—

and instead dramatically inflated the counts using Queen’s alternative

counting method—Macy’s continued to defraud its customers. 

We set forth this evidence in further detail in the Statement of Relevant Facts below; 

and we address the legal significance of these facts in Section III of our Argument.

Macy’s also argues that Hawes has not put forth any evidence of damages. (ECF 

#117 at 22-28.) As an initial matter, it is Macy’s burden at the summary judgment stage 

to show that there are no damages, which it fails to do. And most of Macy’s argument is 

about qualities unrelated to objective thread-count misrepresentations, like the subjective 

softness of the sheets (pp. 28-29), which are not at all relevant to the plaintiff’s claims that 

she (and class members) overpaid. We address Macy’s straw-man arguments and set 

forth the simple point-of-sale measure of damages (the difference in price between the 

sheets as sold with the inflated counts and the sheets as they would have been sold with 

the true counts) in Section IV of the Argument below.

In sum, much of Macy’s motion is a retread of ground this Court has already 

covered, and the rest is based on a presentation of facts that is so at odds with the record 

that it is a wonder Macy’s put it down on paper. When this Court reviews the actual 

evidence gathered in discovery, it should find (at a minimum) that genuine issues of 

material fact remain for trial such that summary judgment is manifestly inappropriate 

under Civil Rule 56, and therefore the defendant’s motion should be promptly denied.

STATEMENT OF THE CASE

The limited value in reciting the procedural history of this case is to show that 

(a) the Court has already heard most of the issues raised by the defendant’s motion; 

(b) Macy’s has had ample opportunity to address the pending claims; and (c) Macy’s pullout-all-the-stops approach to litigating this straightforward consumer fraud case seeks to 

needlessly complicate a simple question for trial—what is the proper method for counting 

threads—and misdirect the Court from that remaining genuine issue of material fact.
4

This case is almost four years old. (ECF #1.) Macy’s moved to dismiss the original 

complaint (ECF #17) and the Court dismissed two claims (one under the Magnuson-Moss 

Act and the other for a breach of the implied warranty of merchantability) but denied the 

motion as to the consumer fraud claims (ECF #39). Macy’s sought to certify the Court’s 

decision for interlocutory review (ECF #43), which was denied (ECF #54). Hawes filed 

an amended complaint (ECF #44), which Macy’s moved to strike (ECF #48), and Hawes 

withdrew (ECF #50). Hawes then received leave to file an amended complaint (ECF #54), 

and Macy’s moved to strike one of its counts (ECF #57). The Court granted that motion 

and ordered Hawes to file an amended complaint clarifying her CLRA claim (ECF #62). 

Thus, this Court has had ample opportunity to hear Macy’s arguments about the 

pleadings, and has determined which causes of action stated claims. Nothing in the facts 

developed during years of discovery should cause this Court to revisit these prior rulings.

STATEMENT OF RELEVANT FACTS

Like the statements of facts in its opposition to class certification and various 

expert-related filings, Macy’s Statement of Facts here reads like it was written by someone 

who did not review any of the key documents or attend a single deposition in this case. It 

is a remarkable departure from the record, which stretches even the generous bounds of 

zealous advocacy. Rather than point out every mistake, obfuscation, equivocation, and 

outright misstatement, we will simply set forth the critical facts actually in the record 

which prove the plaintiff’s case is one that should proceed to trial.

I. Macy’s Knew About Queen’s Alternative Thread Counts for Years 

and Put the Non-Standard Counts on its Packaging and Labels.

A. Queen Uses an Improper Counting Method to Grow His 

Market Share.

Over 12 years ago, Queen founded AQ to purchase cotton-polyester blend (CVC) 

sheets from manufacturers (“mills”) in India owned by his co-adventurers, which AQ 
5

would supply to retailers, like Macy’s.9 Queen quickly grew his business by supplying 

Macy’s and other retailers with sheets that were purported to have very high thread counts 

at unusually low prices. Queen accomplished this by developing his own interpretation 

of the industry-governing standard for counting threads, ASTM 3775, and his own 

methodology for how to perform the counting.

ASTM 3775 is not complicated: take a one-inch square of the fabric and, using a 

lens, count the number of threads (“yarns”) running on the horizontal direction and add 

the number of threads running in the vertical direction. Cotton yarns are made of up 

small fibers (“staple”), and polyester yarns are made up of small fibers (“strands”), but 

these fibers are not counted—only the yarns are counted under the industry standard.

Queen, however, interprets ASTM 3775 as permitting the counting of the 

individual, almost impossibly thin polyester strands as bona fide yarns themselves.10 And 

he has his own methodology for how to go about counting them by pulling the yarns apart 

to separate the strands. (Id.) Queen’s interpretation of the standard is wrong11—and, 

despite his lobbying efforts,12 the ASTM Committee rejected his proposal to “clarify” the 

standard13–and his methodology has not been generally accepted.

B. In a January 2016 Meeting with Macy’s, Queen Explained 

His Alternative Counting Method.

Sal Ciniglio used to work for Macy’s as its bed sheets “buyer”—the most important 

person related to AQ’s supplying of CVC sheets to Macy’s.14 In a January 2016 meeting 

9 See Exhibit 5, Rule 30(b)(6) Deposition of AQ Textiles through Designee Larry Queen, pp. 10-11.

10 Id. at 58-59.

11 See ECF #84-1, Cormier Report at 13-14, 18.

12 See Ex. 5, Queen Depo. at 48.

13 Id. at 62.

14 See Ex. 5, Swift Depo at 26. Danielle Swift is now the Macy’s “buyer”; she was designed by Macy’s as its 

corporate designee on all topics in this case.
6

between Macy’s Ciniglio and AQ’s Queen, Queen advised that he had made a “business 

decision” to have CVC sheets constructed with “separable” yarns, by which he meant the 

polyester threads would be composed of many strands.15 Queen further advised that he 

would count these strands as bona fide threads for purposes of determining the sheets’ 

thread counts that would be represented to consumers on the sheets’ labeling and 

packaging.16 And Queen agreed that AQ would indemnify Macy’s for any issues arising 

from that decision. (Id.)

Thus, by January 2016—at the latest—Macy’s had clear and unequivocal actual 

knowledge that AQ would be providing CVC sheet thread counts based on Queen’s 

alternative interpretation of ASTM 3775, and that the counts represented to consumers

would be necessarily inflated by a multiple of the number of strands per polyester thread.

C. Macy’s Was Kept Up-to-Date on Queen’s Failed Efforts to 

Change the ASTM Standard to His Methodology.

Throughout 2017 and 2018, Queen lobbied the ASTM to change Standard 3775 to 

embrace his alternative interpretation and methodology. He made Macy’s aware of his 

failed efforts.17 Indeed, Queen provided Macy’s with a narrative of his efforts, a timeline 

of the committee proceedings, and the PowerPoint presentation he was making because 

“Macy’s had concern because of what was going on in the market with regard to thread 

counts.”18 Industry leaders, such as the AATC organization, had been describing Queen’s 

efforts to count separable polyester strands as though they were individual yarns 

(threads) as an “ongoing saga,” actively questioning whether Queen’s methodology would 

be “deceptive” from the “consumer perspective.”19 By October 2018, Queen was arguing 

15 See Ex. 4, Ciniglio Depo. Exhibit 10.

16 See Ex. 4, Ciniglio Depo. at 64-71.

17 See Ex. 5, Queen Depo. at 64.

18 Id. at 100-101.

19 See Ex. 5, Queen Depo. Exhibit 5.
7

to Swift that, “The current [ASTM] methodology is outdated.... I made a presentation 

proposing the way sheets should be counted... my methodology.”20 AQ and Macy’s then 

held a meeting to discuss it further, in fact, they had “many meetings.”21

Thus, Macy’s had actual knowledge of the Queen-ASTM “saga,” that Queen’s 

methods were alternative, and that his interpretation had been rejected by the ASTM, and 

therefore his counts were grossly inflated. Moreover, Macy’s had constructive knowledge, 

given its involvement in the bed sheet industry, that others in the industry were concerned 

about Queen’s thread-counting methods would be deceptive to consumers.

D. AQ Provided Macy’s with Spec Sheets and Testing Reports 

that Confirmed the Use of Queen’s Alternative Methods.

“Macy’s requires their suppliers to fill our spec[ification] sheets for every product 

that they buy.”22 The spec sheets AQ provided to Macy’s include the warp and weft 

information, the number of polyester strands (sometimes called “picks”) per yarn, and 

the purported thread count.23 Thus, Macy’s has the construction information from which 

thread counts are determined, which it could have compared to AQ’s stated thread counts, 

which would have confirmed that the counts were not in compliance with ASTM 3775.

AQ also provided Macy’s test reports.24 The examples of these testing reports that 

were produced in this litigation show that the labs had been instructed to count the tiny, 

individual polyester strands, which the labs noted was “not required by ASTM 3775 test 

method.”25 A different lab said it could not provide a standard thread count because of a 

“customer requirement” to count “each individual separate thread per pick [i.e.,] strands 

20 See Ex. 53, Swift Depo. at 75, 77 & Exhibits 16 & 17.

21 Id. at 77.

22 See Ex. 5, Queen Depo. at 26.

23 Id. at 28.

24 Id. at 69; accord Ex. 3, Swift Depo. at 34.

25 See Ex. 5, Queen Depo. Exhibit 13.
8

in each pick.”26 Another lab wrote that defining the “intermingled / co-mingled / weft 

multiple insertions” as separate threads was “a Macy’s policy ... apply just for Macy’s not 

for every other client.”27 Emails note: “Generally we can count the multiple insertions per 

direction but will not add them into the thread count unless client wants ... Macy’s has 

this requirement to take into consideration of multiple insertions into thread count.”28

Thus, Macy’s had actual knowledge that the labs were using Queen’s alternative 

strand-counting method, which was not appropriate under ASTM 3775. The labs refer to 

the alternative counting method as a “customer requirement,” “a Macy’s policy,” and a 

“Macy’s [ ] requirement.” This Court must infer, at this stage of proceedings, that Macy’s 

itself was actively engaged with AQ in imposing the alternative counting method on the 

labs that were testing Macy’s CVC sheets.

E. Customers Complained to Macy’s about the CVC Sheets.

Macy’s received numerous complaints about the quality of the purported high 

thread count sheets.29 Given what Macy’s already knew—that Queen had made a 

“business decision” to supply CVC sheets constructed using multiple tiny polyester 

strands together to form a yarn, but to pass them off as high thread count products—

Macy’s should reasonably have associated customers’ frustrated expectations about the 

sheets to arise from the misrepresentations about the sheets’ thread counts. 

F. Macy’s Approves All Thread Count Representations.

Macy’s “approves or disapproves” the thread count representations on packaging 

in a “collaborative” process between its own team and AQ’s team.30 Swift testified that 

26 Id. at Exhibit 12

27 Id. at Exhibit 3.

28 Id. at Exhibit 4.

29 See Ex. 4, Ciniglio Depo. Exhibits 1-7.

30 See Ex. 5, Queen Depo. at 43-44.
9

“AQ and Macy’s work together” to determine thread counts to ascribe to the sheets; but, 

ultimately, it is Macy’s that must “bless them.”31 Thus, despite years of knowledge—both 

actual and constructive—that AQ was interpreting ASTM 3775 contrary to industry 

standards, and was using Queen’s alternative counting method that multiplied the 

polyester yarn-count by the number of strands per such yarn, Macy’s adopted those 

counts, working with AQ to label the sheets—and then advertising them under Macy’s 

authority—with the vastly inflated thread counts.

II. Hawes Suffered Economic Harm When She Paid More for the 

Sheets Than She Would Have Paid If the Thread Count Had Been 

Accurate.

Ms. Hawes testified that she would not have purchased the sheets from Macy’s at 

the price offered if she had known that the true thread count was less than what Macy’s 

had represented it to be.32 Indeed, Macy’s and AQ witnesses agreed that Macy’s charges 

a higher price for a higher-thread-count sheet, assuming all other characteristics—size, 

color, weave, blend, etc.—are held constant.33 Hawes’s experts agree.34 And Macy’s own 

internal pricing data—as well as the prices offered by Macy’s competitors—demonstrates 

that the higher the thread count, the higher the list price. (Id.)

ARGUMENT

I. Macy’s Fails to Satisfy the Standard for Entering Summary 

Judgment.

Summary judgment is proper only if there is no genuine issue as to any material 

fact and the moving party has proven that it is entitled to judgment as a matter of law. 

See FED. R.CIV.P. 56(c). A defendant seeking summary judgment bears the initial burden 

31 See Ex. 3, Swift Depo. at 33 (“We always discuss a thread count.”)

32 See Ex. 2, Hawes Depo. at 87.

33 See Ex. 3, Swift Depo. at 57; accord Ex. 4, Ciniglio Depo. at 31-32, 76.

34 See ECF #84-1, Cormier Report at 4; accord ECF #84-4, Report of Expert Stefan Boedeker, ¶¶71-78. 

Mr. Boedeker adopted the opinions in his report throughout his deposition. See generally Exhibit 6, 

Deposition of Stefan Boedeker; accord ECF #114-1, Boedeker Rebuttal Report.
10

of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). It is only if and after this burden is met that a burden is then 

placed on the plaintiff to present some specific facts showing there is a genuine issue for 

trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making these 

determinations, all evidence must be viewed in a light most favorable to the plaintiff. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Macy’s motion does not satisfy these standards, nor does it even try to do so. 

Instead, it points to an issue in the case and says, more or less, ‘Plaintiff hasn’t proven her 

case or doesn’t have enough evidence of this or that.” Thus, Macy’s has failed to show that 

there are indisputable facts on which this Court could grant it judgment as a matter of 

law. Indeed, Macy’s motion is insufficient to even shift the burden to make Hawes present 

specific facts on which there is a genuine issue for trial. That said, Hawes has easily made 

such a showing here.

II. Macy’s Pleadings-Based Argument Should Be Rejected.

Macy’s argues (ECF #117-1 at 13 and then again at 21-22 and a third time from 

29-31) that, because Hawes brings breach of warranty and fraud claims which may result 

in money damages (i.e., an “adequate remedy at law”), that her prayers for equitable, 

injunctive, and restitutionary relief under her California statutory and unjust enrichment 

claims must be “dismissed.” This was precisely the argument made in a similar, recent 

case, Francis v. GM, 504 F. Supp. 3d 659, 694 (E.D. Mich. 2020), which also included 

California statutory claims brought within the Sixth Circuit. There, the district court said:

GM contends that “the plaintiffs cannot proceed on an unjust enrichment 

theory where their consumer fraud and breach of warranty claims offer 

them an adequate remedy at law for any losses produced by the alleged 

defect.” However, unjust enrichment claims routinely are allowed to 

proceed when pleaded in the alternative to other viable claims for relief. 

“Defendants contend that equitable relief such as unjust enrichment will not 

be granted where an adequate remedy at law exists,” but the plaintiffs “are 

clearly permitted to plead alternative theories of recovery,” and 

“consequently, it would be premature at this stage of the proceedings to 

dismiss ... the unjust enrichment claims on this basis.”
11

(Internal citations omitted.) This Court should hold the same: Hawes will have to choose 

a route of recovery under her alternative claims at trial, but not before.

III. The Record Does Not Support Macy’s “Innocent Retailer 

Defense” and Instead Demonstrates a Genuine Issue of Material 

Fact Remains for Trial.

Macy’s says (ECF #117-1 at 14-15) that Hawes’s statutory causes of action require 

her to show that Macy’s “somehow participated in, controlled, or adopted the deceptive 

advertising” at issue in this case and that her common law causes of action require her to 

show that Macy’s “made, controlled, or adopted thread-count representations.” And 

Macy’s says (Id. at 18-21) that it did not have actual or constructive knowledge of the false 

nature of its thread-count representations.

As Sections I(B)-(F) of the Statement of Relevant Facts above amply 

demonstrate, Macy’s participated or adopted the thread-count misrepresentations, which 

it knew or had reason to know were false, because it (1) knew that Queen was using an 

alternative interpretation of ASTM 3775 and his own methodology of counting the 

strands in a single polyester yarn; (2) knew that the ASTM Committee had rejected 

Queen’s interpretation and methodology, despite his long-running lobbying efforts; 

(3) received spec sheets and testing reports that showed the use of the improper counting 

method was resulting in wildly inflated thread counts; (4) was aware that the industry 

was questioning the alternative counting method as deceptive to consumers; and yet 

(5) Macy’s worked in collaboration with AQ to develop marketing, packaging, and labels 

for the sheets that emphasized thread counts, and over which Macy’s had ultimate 

control, “blessing” the counts as its own—backed by the Macy’s brand and good will.

There is no evidence that Queen secretly adjusted the thread counts, lied about 

how the sheets were constructed, prevaricated about his interpretation, equivocated 

about his methodology, hid his efforts to lobby the ASTM Committee, or that AQ doctored 

the spec sheets or lab reports. To the contrary, Queen was an out-spoken champion of his 

own novel interpretation of ASTM 3775, his own method of counting polyester strands as 
12

though they were real free-standing yarns, and his efforts to lobby the industry to come 

around to his way of thinking. And AQ produced spec sheets that identified the multistrand polyester yarns and testing reports that counted the strands—and said those 

counts were not compliant with the ASTM Standard but were instead at the request of the 

“customer,” including Macy’s itself.

Moreover, Queen had discussions, meetings, and correspondence—dating well 

back to January 2016—advising Macy’s of his “business decision” to use multi-strand 

polyester yarn construction and to count those strands as individual yarns—and that he 

would indemnify Macy’s if there were “any issues” that resulted from that approach, 

which was an obvious red flag that this conduct was (at a minimum) highly questionable 

and (when viewed in a light most favorable to the plaintiff) admittedly deceptive. Macy’s 

went along with plan and was able to obtain from AQ relatively cheap CVC sheets that it 

could market at very high thread counts—with price-premiums based on those counts. 

Thus, there is ample evidence that Macy’s knew, for years, exactly what Queen was 

doing and Macy’s went along with it, endorsed it, adopted it, and participated in it—all for 

its own benefit—and at the expense of consumers like Sara Hawes. Reasonable jurors 

could find in her favor on this question, such that there remains a genuine issue of 

material fact for trial such that summary judgment would be manifestly inappropriate.

IV. Hawes Has Set Forth Sufficient Evidence of Injury at this Stage 

of the Litigation.

A. Macy’s Utterly Fails to Carry Its Summary Judgment 

Burden on Its Damages-Related Arguments.

Under Rule 56, Macy’s must meet an initial burden to show that there is no genuine 

issue of material fact on the question of damages. To do that here, Macy’s would have to 

show that it would’ve listed the Somerset sheets Hawes purchased at the same price had 

they been manufactured, advertised, labeled, and sold with only one change in the 

product specifications: a lower thread count. Macy’s cannot show this: it does not, could 
13

not, and cannot show that it would have sold a Somerset sheet with a 900-thread count 

and an otherwise identical Somerset sheet with a 250-thread count for the same price.

This simple fact is dispositive of Macy’s damages arguments. So Macy’s tries to 

avoid it by, instead and improperly, asking the Court to impermissibly place the initial 

burden on Hawes to prove that there are damages. But that’s now how summary 

judgment works. In any event, there is ample evidence of plausible damages in the record, 

such that Macy’s is double-wrong.

B. Genuine Issues of Fact Obviously Remain on Damages 

Questions.

Macy’s makes a half-hearted attempt (ECF #117-1 at 17-18) to argue that Hawes 

has not shown sufficient evidence that her sheets actually had lower thread counts than 

Macy’s had represented them to have. As an initial matter, there is no dispute that the 

Queen interpretation of ASTM 3775 and AQ method of counting the strands that make 

up polyester yarns will necessarily result in a higher count. Since there is no dispute that 

the Queen interpretation and method was applied to the counts of the sheets in this case, 

including those purchased by Hawes, there is no question but that the sheets had an 

inflated count as sold by Macy’s and would have to have been marked with a much lower 

count had they been properly counted under the ASTM 3775 industry interpretation and 

standard methodology.

The rest of Macy’s argument is a regurgitated attack on Hawes’s expert, Sean 

Cormier, that Macy’s counsel has made in other expert-related motion practice. We do 

not waste more of the Court’s time responding to them at length here. In short, Mr. 

Cormier is beyond-qualified to testify about how CVC sheets are constructed, how the 

ASTM 3775 method applies to them, what the actual thread counts under that method 

are for sheets in this case, and how Queen’s method departs from the industry standard 

and results in much higher thread-count representations. Mr. Cormier did conduct an 
14

ASTM 3775 thread-count test of Ms. Hawes’s sheets and found that the true count was 

227, not the 900-count Macy’s claimed.

The balance of Macy’s brief (pp. 22-29) is an attack on Hawes’s class damages 

expert, Stefan Boedeker, coupled with a misguided series of arguments that Hawes did 

not suffer any damages from the thread-count misrepresentation. As for Boedeker, once 

again, Macy’s counsel are re-briefing expert-related motions that we’ve dealt with in other 

filings. In short, Boedeker is a well-credentialed expert capable of conducting different 

economic analyses of products and markets—in this instance, a regression analysis or a 

conjoint analysis—to determine the price premiums consumers paid as a result of a 

misrepresentation by a retailer about an objective characteristic of a household good like 

a bed sheet.

Moreover, the traditional measure of damages in consumer fraud cases, which is 

what Hawes seeks here, is the difference between the price paid and the price which would 

have been paid absent the deception. See Broomfield v. Craft Brew All., Inc., 2018 WL 

4952519, at *16-17 (N.D. Cal. Sept. 25, 2018); accord Brazil v. Dole Packaged Foods, 

LLC, 2014 WL 2466559, at *15 (N.D. Cal. May 30, 2014). As set forth in Section II of 

the Statement of Relevant Facts above, there is sufficient evidence that Hawes 

suffered an economic damage—in the form of a price premium—to sustain her case at the 

summary-judgment stage. First, she herself testified she would not have paid out-ofpocket the same price for the sheets if she had known the thread count was less than what 

was represented. Second, all the witnesses and experts in this case agree that a lower 

thread count sheet commands a lower price. And third, Macy’s own pricing data supports 

this inference.

CONCLUSION

Defendant Macy’s Motion for Summary Judgment (ECF #117) should be denied

and Plaintiff Hawes’s claims should proceed to trial. This Court should also grant the 
15

pending Motion for Class Certification (ECF #84) so that the claims can be determined 

on a class-wide basis in a single adjudication for all California consumers.

Respectfully submitted,

s/ Drew Legando

Drew Legando (0082409)

Edward S. Jerse (0013155)

MERRIMAN LEGANDO WILLIAMS & KLANG, LLC

1360 West 9th Street, Suite 200

Cleveland, Ohio 44113

T. (216) 522-9000

F. (216) 522-9007

E. drew@merrimanlegal.com

edjerse@merrimanlegal.com

Charles Schaffer

LEVIN SEDRAN & BERMAN

510 Walnut Street, Suite 500

Philadelpha, PA 19106

T. (877) 882-1011

E. cschaffer@lfsblaw.com

Charles LaDuca

Brendan S. Thompson

David L. Black

CUNEO GILBERT & LADUCA LLP

4725 Wisconsin Ave., NW, Suite 200

Washington, DC 20016

T. (202) 789-3960

E. charles@cuneolaw.com

brendant@cuneolaw.com

dblack@cuneolaw.com

Stuart L. Cochran

STECKLER GRESHAM COCHRAN PLLC

12720 Hillcrest Road, Suite 1045

Dallas, Texas 75230

T. (972) 387-4040

E. stuart@stecklerlaw.com

Michael McShane

Ling Y. Kuang

Kurt D. Kessler

AUDET & PARTNERS

711 Van Ness Ave., Suite 500
16

San Francisco, CA 94102

T. (715) 568-2555

E. mmcshane@audetlaw.com

lkuang@audetlaw.com

kkessler@audetlaw.com

Counsel for Plaintiff Hawes & the Proposed 

Class

CERTIFICATE OF SERVICE

This opposition brief was filed on the Court’s ECF System, through which it will be 

served on counsel of record, on August 23, 2021.

s/ Drew Legando

Drew Legando (0084209)