                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 04 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LISA PENNER, on behalf of herself and            No. 06-35726
all others similarly situated; et al.,
                                                 D.C. No. CV-06-05092-FDB
              Plaintiffs - Appellants,

       v.                                        MEMORANDUM *

CHASE BANK USA NA and BANK
ONE DELAWARE NA,

              Defendants - Appellees.

                   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                     Submission Withdrawn February 10, 2009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




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.



       **
        Following the death of Judge Pamela A. Rymer, Judge Stephen Reinhardt
was drawn as her replacement on the panel.

                                          2
      The parties’ October 6, 2008 and October 20, 2008 motions for judicial

notice are denied.

      AFFIRMED.




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