Hennessey v. The Gap Inc.

• Court: District Court, E.D. Missouri
• Decided: September 23, 2022
• Docket: 4:19-cv-01867
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI individually and onE ASTERN DIVISION behalf of all others similarly situated JILL HENNESSEY, ) , ) ) Plaintiff, ) ) v. ) Case No. 4:19-cv-01867-SEP ) THE GAP, INC. and OLD NAVY, LLC, ) ) Defendants. MEM ORAND U )M AND ORDER

Before the Court is Defendants’ Motion to Dismiss. Doc. 54. The Motion is fully briefed and ready for disposition. FFAoCrT tSh AeN rDe aBsAoCnKsG sReOtU fNorDt h below, the Motion is granted. This is a putative class action brought under the laws of the State of Missouri pursuant to the Class Action Fairness Act of 2005. Plaintiff Jill Hennessey alleges that Defendants The Gap and Old Navy violated the Missouri Merchandising Practices Act (MMPA) by making false and misleading price comparisons in connection with the advertisement and sale of their merchandise. Doc. 26 ¶ 2. Plaintiff alleges that she id. purchased numerous products at advertised discount prices at “one or more Gap and Old Navy retail stores” in Missouri, ¶¶ 9, 32, 37, 40, 45, and seeks to represent herself and a putative class of similarly situated Missouri purchasers who, within five years prior to the id. date of filing, purchased products from Defendants at prices that purported to be discounts of 20% or more, ¶ 49. As many stores do, Defendants sell products at “regular” prices and at discounted “sale” prices. According to Plaintiff, the sale prices that Defendants advertised for many of their products were deceptive, because Defendants did not sell a substantial quantity of Id. those products at the regular price for a substantial period of time prior to selling them at the sale price. ¶ 3. She further alleges that, “through their use of fictitious and unsubstantiated former price comparisons, Defendants intentionally and/or negligently Id. or worth of the products they sold to Plaintiff and the Class.” ¶ 29. Plaintiff claims that by advertising the sale prices in comparison with the illusory former prices, Defendants id. “represent[ed] that consumers can buy products . . . on ‘sale’ and at a substantial discount from their advertised former price,” ¶ 3, and “intended to induce Plaintiff and members Id. of the Class to purchase products in quantities and/or at prices at which they would not otherwise have agreed.” ¶ 29. Plaintiff also alleges that, in addition to their comparative pricing scheme, Defendants offer “a constant array of promotions, such as store-wide sales, less Id. coupons, and other discounts, such that the average actual selling price (and therefore the market value) of each item is often than the advertised ‘sale’ price.” ¶ 27. Plaintiff claims that as a result of Defendants’ misleading advertising practices, she and the putative class members did not receive the benefit of the bargain that Defendants promised them, Id. because the products they purchased from Defendants did not have the higher value that Defendants allegedly represented they had. ¶ 3. The Amended Complaint details three specific transactions and includes at least 21 id. items that Plaintiff purchased during the putative class period, such as: a blouse with a id. regular price of $15.29 and a sale price of $9.17, ¶ 32; a tank-top with a regular price of id. $4.99 and a sale price of $2.49, ¶ 37; and a crew-neck T-shirt with a regular price of $14.99 and a sale price of $7.49, ¶ 41. Plaintiff alleges that she “is now informed and Id. believes . . . that all of the alleged former prices were false and misleading . . . because they did not represent . . . actual, bona fide prices” as required by Missouri law. ¶ 44. She also alleges that she “is further informed and believes that the prevailing retail price and, therefore, the actual fair market value of each item at the time of her purchase was Id. materially lower than the advertised former prices and may have even been less than the discounted prices that she paid.” ¶¶ 44, 28. Based oCno tuhnet f Io:r eugnolianwg faullle pgraaticotnicse, sth ien Avmioelantdieodn Coofm thpela MinMt bPrAin; g s two counts: Count II: unjust enrichment. Id. at 21-27. In their Motion to Dismiss, Defendants argue that The Gap should be dismissed as a party because Plaintiff fails to allege a specific transaction with The Gap; Count I should be bargain rule; and Count II should be dismissed because Plaintiff received what she intended to purchase. Doc. 55 at 1. Because the Court finds that Counts I and II should be dismissed, the Court does not consider Defendants’ argument regarding the individual dismissal of The Gap. LEGAL STANDARD The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) Neitzke v. Williams is to test the legal sufficiency of the complaint. When considering a Rule 12(b)(6) motion, a court assumes the factual allegations of the complaint are true, ,490 U.S. 319, 32B 6r -a 2d 7e (n 1 v 9. 8W 9a ),l - aM na dr dt rS at wor se as, l lI n rec. asonable inferences in the non-movant’s favor. , 588 F.3d 585, 595 (8th Cir. 2009) (citation omitted). Although Plaintiff brings only state law claims, because she filed her action in See Karnatcheva v. JPMorgan Chase Bank, N.A. In re federal court, the federal pleading standards of the Federal Rules of Civil Procedure apply. Baycol Prods. Litig. , 704 F.3d 545, 548 (8th Cir. 2013); , 616 F.3d 778, 786 (8th Cir. 2010). The sufficiency of a complaint is ordinarily tested by the general pleading standard of Federal Rule of Civil Procedure 8. All Streambend Properties II, LLC v. Ivy Tower claims “grounded in fraud,” however, must meet the heightened pleading standard of Minneapolis, LLC Federal Rule of Civil Procedure 9(b). , 781 F.3d 1003, 1010 (8th Cir. 2015) (citations omitted). Plaintiff’s claims are both grounded in fraud. The MMPA prohibits the “act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or Goldman v. Tapestry, Inc. commerce . . . .” Mo. Rev. Stat. § 407.020. “The Eastern and Western Districts of Missouri accord Blake v. Career Educ. Corp. have consistently held that Rule 9(b) applies to MMPA cases.” , see also Lavender v. Wolpoff & 501 F. Supp. 3d 662, 666 (E.D. Mo. 2020); , 2009 WL Abramson, L.L.P 140742, at *2 (E.D. Mo. Jan. 20, 2009) (collecting cases); , 2007 WL 2507752, at *2 (W.D. Mo. Aug. 30, 2007) (“Rule 9(b)’s Courchene v. Citibank N.A. particularity requirements apply with equal force to state consumer fraud statutes as they do to common law fraud claims.” (quoting , 2006 WL 2192110 (W.D. Mo. Aug. 1, 2006))). Rule 9(b) applies to Plaintiff’s unjust enrichment claim because seePodpeskar v. Makita U.S.A. Inc. , 247 F. Supp. 3d 1001, 1013 n.8 (D. Minn. 2017) (applying OrthoAccel Technologies, Rule 9(b) to unjust enrichment claim because it relied on the same misrepresentations that Inc. v. Devicix, LLC formed the basis of the plaintiff’s fraud claims) (citation omitted); , 2015 WL 4563134, at *6 (D. Minn. July 29, 2015) (“When allegations of fraud underlie an unjust enrichment claim, Rule 9(b)’s heightened pleading standards are applicable.”) (citation omitted). must Federal Rule of Civil Procedure 9(b) states: “In alleging fraud or mistake, a party requirement Federal Practice and state with particularity the circumstances constituting fraud or mistake.” “Rule 9(b) Procedure is a pleading ,” 5A Charles Alan Wright & Arthur R. Miller, see § 1297 (4th ed. 2022) (emphasis added), not an affirmative defense or objection that a defendant must raise, Fed. R. Civ. P. 8(c) (listing affirmative defenses that “a party sua sponte See must affirmatively state” in order to avoid waiver). When considering a motion under Rule Northern Bottling Co., Inc. v. Henry’s Foods, Inc. 12(b)(6), a court may raise Rule 9(b)’s heightened pleading standard . , 474 F. Supp. 3d 1016, 1027-28 (D.N.D. MPC Containment Sys., Ltd. v. Moreland 2020) (applying Rule 9(b) to a claim even though the defendant contended only that the allegations failed to satisfy Rule 8); , 2006 WL sua sponte 2331148, n. 1 (N.D. Ill. Aug. 10, 2006) (“Although not raised by the parties, we raised the issue of heightened pleading because specificity is required not only for Conditioned Ocular Enhancement, Inc. v. adequate notice, but also in order for the court to address the sufficiency of the claims that Bonaventura fall within the context of misrepresentations . . . .”); sua , 458 F. Supp. 2d 704, 709 (N.D. Ill. 2006) (“While COE did not raise the issue of sponte heightened pleading requirements in its motion, it is [the court’s] prerogative to do so .”). To satisfy Rule 9(b), “the complaint must plead such facts as the time, place, and content of the defendant’s false representations, as well as the details of the defendant’s U.S. ex rel. Joshi v. St. Luke’s Hosp., Inc. fraudulent acts, including when the acts occurred, who engaged in them, and what was obtained as a result.” , 441 F.3d 552, 556 (8th Cir. Ascente Bus. Consulting, LLC v. DR myCommerce 2006). In essence, a plaintiff must plead the “who, what, where, when, and how” of the

circumstances constituting fraud. , 9 F.4th 839,845 (8th Cir. 2021) (citations omitted). Even when Rule 9(b) applies, “it does not render the general principles set forth in supra [Rule 8] entirely inapplicable to pleadings alleging fraud; rather, the two rules must be read in conjunction with each other.” Wright & Miller, , § 1298. Rule 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the Ashcroft v. Iqbal, pleader is entitled to relief.” But Rule 8 “demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation.” 556 U.S. 662, 678 (2009). To survive Iqbal Bell a motion to dismiss, the complaint must “contain sufficient factual matter, accepted as true, Atl. Corp. v. Twombly, to ‘state a claim to relief that is plausible on its face.’” , 556 U.S. at 678 (quoting Id. 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and Twombly conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. Twombly (quoting , 550 U.S. at 570). Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” (quoting , 550 U.S. at 555). The issue in considering a motion to dismiss is not whether the plaintiff will See Twombly, ultimately prevail, but whether the plaintiff is entitled to present evidence in support of the claim. 550 U.S. at 556. DISCUSSION I. Count I: Missouri Merchandising Practices Act Plaintiff claims that she was injured by Defendants’ comparative pricing scheme, which she alleges was deceptive and unlawful under the MMPA. Doc. 26 ¶¶ 2, 3, 8, 28, 32- 1 45, 62-73. Defendants argue that even if their pricing scheme violated the MMPA, it did not cause Plaintiff to suffer any ascertainable loss. Doc. 55 at 5. The Court agrees with Defendants. Under the MMPA, any “act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce . . . in or from the state of Missouri, is declared to be an unlawful practice.” Mo. Rev. Stat. § 407.020.1. Engaging in an unlawful practice with the intent to defraud is a clas s E felony. Mo. Rev. Stat. § 407.020.3. Thus, understandably, 1 Defendant has not conceded this fact and “would contest the factual allegations” related to violations of the MMPA are enforced by “each prosecuting attorney and circuit attorney in their respective jurisdictions,” as well as “the attorney general.” Mo. Rev. Stat. § 407.020.4. Alternatively, whenever it appears that a person has engaged in an unlawful practice, the attorney general may “issue . . . an order prohibiting such person or persons from engaging or continuing to engage in” that unlawful practice. Mo. Rev. Stat. § 407.095.1. Once such an order has issued, if that person continues to violate the order, that person “is guilty of a class E felony.” Mo. Rev. Stat. § 407.095.3. See The MMPA also provides private litigants with a statutory right to bring a civil action for damages. Mo. Rev. Stat. § 407.025. But while the government may establish criminal liability for an unlawful practice based solely on a company’s deception and intent to defraud, to state a private civil claim for damages under § 407.025, a plaintiff must allege sufficient facts to establish that she: (1) purchased merchandise, (2) primarily for personal See Hennessey v. Kohl’s Corp. or household purposes, and (3) suffered an ascertainable loss, (4) as a result of an act made unlawful by the MMPA. Mo. Rev. Stat. § 407.025.1(1); , 2020 WL 870982, at *3 (E.D. Mo. Feb. 21, 2020) (collecting cases). The plaintiff must also establish: (a) That [she] acted as a reasonable consumer would in light of all circumstances; (b) That the method, act, or practice declared unlawful by section 407.020 would cause a reasonable person to enter into the transaction that resulted in damages; and (c) Individual damages with sufficiently definitive and objective evidence to allow the loss to be calculated with a reasonable degree of certainty. Mo. Rev. Stat. § 407.025.1(2). Thompson v. Allergan USA, Inc. To determine whether a plaintiff has suffered an ascertainable loss, Missouri courts Polk v. KV Pharm. Co. employ the benefit-of-the-bargain rule. , 993 F. Supp. 2d Sunset Pools of St. Louis, Inc. v. Schaefer 1007, 1012 (E.D. Mo. 2014) (citing , 2011 WL 6257466, at *5 (E.D. Mo. Dec. 15, 2011) (citing , 869 S.W.2d 883, 886 (Mo. Ct. App. 1994))). Under the benefit-of-the-bargain rule, “the plaintiff can recover ‘the Goldman Thompson difference between the value of the product as represented and the actual value of the see also Kohl’s Corp. product as received.’” , 501 F. Supp. 3d at 668 (quoting , 993 F. Supp. 2d is ‘the difference between the actual value of the property at the time of the sale and what Kendrick v. Ryus its value would have been if the representations had been true, for the purchaser is entitled Harris v. Union Elec. Co. Heberer v. Shell to the full benefits of her bargain.’” (quoting , 123 S.W. 937, 939 (Mo. Oil Co., Rosenblum v. Jacks or Better of America 1909))); , 766 S.W.2d 80, 86 (Mo. banc 1989)(citing West, 744 S.W.2d 441, 443 (Mo. banc 1988) and 745 S.W.2d 754, 764 (Mo. Ct. App. 1988) (“In Missouri, a victim of fraud has two options—he can return what he purchased and get his money back (recission), or keep what he purchased and sue for damages measured as the difference between its value as represented and its true value as of the date of purchase (benefit of the bargain).”)) See Plaintiff alleges that the actual value of the products she received was less than the value of the products as represented. Doc. 26 ¶ 28. Plaintiff claims that Defendants sold products that were represented to have a higher value, based on their displayed former prices, at discounted sale prices, but that Defendants never actually sold those products at the former prices. For example, Plaintiff alleges that she purchased a crew- neck T-shirt, which Old Navy represented as selling for a former price of $14.99, at a sale seeid. price of $7.50, Doc. 26 ¶ 41, but that Old Navy never actually sold that T-shirt for $14.99, ¶¶ 26, 28, 30, 44. Plaintiff argues that, because she did not receive the value represented by Defendants’ displayed former prices, she did not receive the benefit of her bargain and thus suffered an ascertainable loss. Doc. 63 at 7. Defendants argue that a comparative price is not an objective representation of id. value, Doc. 55 at 6-9; that the former price is irrelevant to the product’s value at the time of purchase, at 10-11; that the products Plaintiff received were as valuable as represented id. because, for example, even if the T-shirt’s actual value were only $7.49 (and not $14.99), Defendants charged only $7.49 for it, at 6, 8-9; and that Plaintiff seeks to impose the id. “impossible requirement” that Defendants “not only convey a [T-shirt], but also the intangible concept of a discount,” at 9. Defendants thus argue that Plaintiff got what she paid for: a $7.49 T-shirt for $7.49. The Court agrees. See The benefit-of-the-bargain rule poses a simple question: Was a product’s actual fair Kohl’s Corp. Kendrick market value less than what the seller represented its value to be at the time of sale? Id. , 2020 WL 870982, at *3 (quoting , 123 S.W. at 939). If the actual value example, if the aforementioned T-shirt’s represented value was $14.99, and its actual fair market value was $7.49, then Plaintiff suffered an ascertainable loss equal to the difference (i.e., $7.50). If the T-shirt’s represented value was $7.49, and its actual value was $7.00, then Plaintiff also suffered an ascertainable loss. But if the T-shirt’s represented value was $7.49, and the actual value was $7.49, then Plaintiff suffered no loss. Thus, to survive See Defendants’ Motion to Dismiss, Plaintiff must have alleged facts that, if true, demonstrate Twombly, Iqbal that the Defendants’ products’ represented values were less than their actual values. 550 U.S. at 556; , 556 U.S. at 678. The Amended Complaint fails to allege such facts. “Fair market value is the price at which . . . property [will] change hands between a Connelly v. Department of Treasury, willing buyer and a willing seller, neither being under any compulsion to buy or to sell and Internal Revenue Service both having reasonable knowledge of relevant facts.” see also Turner v. Shalberg , 2021 WL 4281288, at *12 (E.D. Mo. Sept. 21, 2021) (internal quotation marks and citation omitted); , 70 S.W.3d 653, 659 (Mo. Ct. App. 2002) (“Fair market value . . . means the price which property will bring when it is offered for sale by an owner who is willing but under no compulsion to sell and is bought by a buyer who is willing or desires to purchase but is not compelled to do so.”) (internal quotation marks and citations omitted). Defendants’ products had represented values equal to their displayed sale prices. The Amended Complaint alleges that Defendants’ products’ labels bore two prices, a higher former price and a lower sale price. At the time of sale, with all objective characteristics of the products available to the purchaser for inspection, the lower sale price was the price at which Defendants were willing to sell each product. Therefore, regardless of any other See Connelly Turner price listed, Defendants represented each product as having a value equal to the lower sale 2 price. , 2021 W L 4281288, at *12; , 70 S.W.3d at 659. So, continuing 2 See Shaulis v. Nordstrom, Inc. , 865 F.3d 1, 11-12 (1st Cir. 2017) (dismissing claim based on the purchase of a sweater labeled with a “compare at” price tag, because the plaintiff—who, “relying only on inferences she drew about the quality of the sweater based on the ‘Compare At’ price tag,” bought the sweater because she subjectively believed it “was worth more than the price” it was being sold for—“identifie[d] no objective injury traceable to the purchased item itself—for example, that the sweater was poorly made or tha t its materials were misrepresented”; and See Connelly with the above example, Defendants represented the T-shirt’s value to be $7.49 because that was the price at which they were willing to sell it on that day. , 2021 WL at the time of sale 4281288, at *12. Any displayed former price (in the example, $14.99) was irrelevant to the products’ represented value . The Amended Complaint advances two alternative theories of each product’s actual market value. First, Plaintiff alleges that each product she and the class received had “a equal to the prices Plaintiff and the class members market value that was, at the time of purchase, significantly below the advertised former paid comparison price and, in many cases, . . . [ ] to purchase those items.” Doc. 26 ¶ 28. For the reasons discussed below, that allegation is insufficient to satisfy Rule 9(b). But assuming that it were properly alleged and assumed to be true, it would mean that Defendants’ products had actual values equal to or greater than their sale prices. Returning to the above example, on the Amended Complaint’s first theory of actual value, the T-shirt had an actual value of $7.49 or more. Because the represented value ($7.49) and the lowest possible actual value ($7.49) of the product were the same, Plaintiff cannot have suffered any ascertainable loss on that theory. less sale But elsewhere the Amended Complaint alleges that Defendants’ products had actual market values that were than the prices. Doc. 26 ¶¶ 28, 44. Using the same example, that would mean the actual market value of the T-shirt was equal to or less than SeeGoldman Thompson $7.48. If that were true, then Plaintiff would indeed have suffered an ascertainable loss by Kohl’s Corp. Kendrick paying $7.49 for the shirt. , 501 F. Supp. 3d at 668 (quoting , 993 F. Supp. 2d at 1012); , 2020 WL 870982, at *3 (quoting , 123 S.W. at 939). But Plaintiff’s allegations are insufficient to sustain that claim. According to the Amended Complaint: “Plaintiff and the members of the Class former receive[d] products that, based on actual, historical selling prices, ha[d] a market value that below the prices they paid id. informed was, at the time of purchase, significantly below the advertised price and, in many cases, . . . ,” ¶ 28 (emphasis added); and “Plaintiff is . . . Belcastro v. Burberry Ltd. sweater was of ‘high quality,’ because [she] did not explain why the sweater was not of high quality in any objective way”); , 2017 WL 744596, at *1, *3 (S.D.N.Y. Feb. 23, 2017) (dismissing claim based on products labelled with a former price where plaintiff “did not allege . . . that he overpaid for any of the shirts or that the shirts were objectively different in any measurable way from what he believed he was purchasing,” because the plaintiff’s injury was and believes may less than the discounted prices , that . . . the actual fair market value of each item at the time of her purchase . . . have even been that she paid” Doc. 26 ¶ 44 (emphasis added). Those allegations “appear to be made on the basis of information and belief, which is permitted under Rule 9(b) only when ‘the facts constituting the fraud are peculiarly Goldman Drobnak within the opposing party’s knowledge’ or ‘the allegations are accompanied by a statement v. Anderson Corp. of facts on which the belief is founded.’” , 501 F. Supp. 3d at 669 (quoting , 561 F.3d 778, 783-84 (8th Cir. 2009)). Courts in this district have found similar allegations insufficient to meet Rule 9(b) See id. Kohl’s Corp. where, as here, the plaintiff failed to provide the information on which the plaintiff’s belief was founded. at 669-70; , 2020f uWrLth 8e7r0 i9n8fo2r, mate *d4 -a*n5d ( fbineldiienvge sit

conclusory and speculative to allege: “Plaintiff is that the prevailing retail price and, therefore, the actual fair market value of eaancdh miteamy ahta tvhee etvimene of hbeere npurchase was materially lower than the advertised former price less than the so-called ‘sale’ price.”). Plaintiff fails to provide any particular fact demonstrating that, at the time of sale, the actual fair market value of Defendants’ products was less than the displayed sale price. As the allegations at issue relate to the products’ See e.g. Goldman actual market value, rather than their represented value, none of the supporting facts would be peculiarly within the Defendants’ possession. , , , 501 F. Supp. 3d . at 670 (dismissing similar allegations where, as here, plaintiff failed to conduct any meaningful pre-suit investigation that might have revealed at least some relevant facts) Therefore, Plaintiff’s allegations supporting her second theory of actual value fail to satisfy the particularity requirement of Rule 9(b). On neither of Plaintiff’s alternative theories of actual value has she successfully alleged facts that, if true, demonstrate that the products’ represented values were less than their actual fair market values. Nevertheless, Plaintiff argues that this Court should find See that she has successfully alleged such facts, because two other decisions of this Court have both already done so. Doc. 63 at 4 (“[T]wo separate courts in this district have recently Kohl’s Corp. analyzed this precise issue, and agreed that victims of a false price-comparison Goldman advertising scheme suffer an ascertainable loss.”) (citing , 2020 WL 870982, at *4; , 501 F. Supp. 3d at 669). Plaintiff mischaracterizes those decisions. Hennessey v. Kohl’s Corporation In —which notably involved the same plaintiff as this case—the Court stated: Defendants’ argument that plaintiff alleged she purchased products for prices she was willing to pay, because she paid them, misses the point. Plaintiff alleges the products she purchased were worth less than defendant’s advertising evaluated them. If the actual values of the items were less than as advertised, plaintiff did not receive the benefit of her bargains and she suffered Kohl’s Caonr pa.scertainable loss. , 2020 WL 870982, at *4. That is merely a statement of the benefit-of-the- bargain rule. The Court did not actually hold that the plaintiff had successfully pled ascertainable loss. Rather, the Court found that the plaintiff’s claims failed to satisfy Rule Goldman 9(b) because she failed to allege the products’ values with particularity. Likewise, in , the Court explained: “Goldman has alleged that she purchased items that were worth less than advertised. Assuming that this is true, then Goldman did not receive the benefit of her bargains under the MMPA.” 501 F. Supp. 3d at Id. 669. Again, that is merely a reiteration of the benefit-of-the-bargain rule, and again, the 3 Court did not actually find that Goldman had successfully pled ascertainable loss. Id. Rather, it dismissed Goldman’s claims because her “conclusory allegations regarding the actual values of the items [she] purchased,” “d[id] not satisfy the Rule 9(b) standard.” Hennessy v. Kohl’s Corporation Goldman v. Tapestry, Inc. Thus, the Court is not persuaded that its holding in this case contradicts the holdings in , 2020 WL 870982, at *3-*5,or , 501 F. Supp. 3d at 668-70. Because the allegations in the Amended Complaint fail to establish that the actual market values of the products that Plaintiff received were lower than represented values of those products, Plaintiff fails to allege an ascertainable loss and consequently fails to state an MMPA claim upon which relief may be granted. This Court thus “joins a growing number of courts, in finding that complaints based solely on a plaintiff’s disappointment 3 Goldman Even if the Court had held that Goldman’s allegations made out a viable claim under the MMPA, that holding would not necessarily vindicatIed P. laintiff’s allegations this case. involved an outlet store, which sold products represented to be the same as, or of the same quality as, products sold by the same companyId i.n retail stores. at 665. Goldman alleged that the company manufactured inferior products specifically to sell in its outlet stores and never actually sold t hose products in retail stores. A holding that those facts are sufficient to support an ascertainable Robey v. PVH Corp. over not receiving an advertised discount at the time of purchase has not suffered an seeShaulis ascertainable loss . . . .” , 495 F. Supp. 3d 311, 321 (S.D.N.Y. 2020) (internal quotation marks and citations omitted) (collecting cases); , 865 F.3d at 11 (dismissing a similar claim where the plaintiff alleged that she “suffered a legally cognizable injury because she was induced to make a purchase she would not have made, but for the false sense of value created by Nordstrom’s pricing scheme,” because the pIIl.a intifCf ofauilnetd I tIo: sUhnojwus atn Eyn arcitcuhaml iennjut ry separate from the alleged deception itself).4

To state a claim for unjust enrichment under Missouri law, a plaintiff must allege sufficient facts to establish: “(1) a benefit conferred on the defendant by the plaintiff; (2) appreciation by the defendant of the fact of such benefit; (3) acceptance and retention by Almat Builders & Remodeling, Inc. v. Midwest Lodging, LLC the defendant of that benefit under circumstances in which retention without payment would be inequitable.” , 615 S.W.3d 70, 80 (Mo. Ct. App. 2020) (emphasis added). The first two elements are apparently not in dispute. As to the third element, the Amended Complaint alleges that “it would be against equity and good conscience to permit Defendants to retain the ill-gotten benefits that they received from Plaintiff and the Class in light of the fact that the products that Plaintiff and the Class purchased from Defendants did not have the higher value or worth that Defendants represented they had through their false former price comparisons.” Doc. 26 ¶ 77. Defendants argue that Plaintiff’s claim for unjust enrichment should be dismissed because “there can be no unj ust enrichment if the parties receive what they intended to See also Gerboc v. ContextLogic, Inc. 4 Kim v. Carter’s Inc. , 867 F.3d 675, 681 (6th Cir. 2017) (“Gerboc suffered no loss” because “[h]e got what he paid for: a $27 item that was offered as a $27 item and that works like a $27 item.”); , 598 F.3d 362 (7th Cir. 2010) (dismissing similar claim based on an alleged consumer protection violation—wherefrom “actual loss may occur if the seller’s deception deprives the plaintiff of the benefit of her bargain by causing her to pay more than the actual value of the property”—because the plaintiffs faBileeldca tsot rsoufficiently allege that the clothing they purchased “was defective or worth less than what they actua Jlolyh pnasoidn, ”v a. Jnods . tAh.u Bsa “ngko tC tlhoteh bieernse, Ifintc o.f their bargain and suffered no actual pecuniary harm”); , 2017 WL 744596, at *6 (dismissing a similar “But-I-Thought-I-Was-Getting-A-Bargain” claim); , 2014 WL 4129576 (S.D. Ohio Aug. 19, 2014) (dismissing a similar claim “based on a theory of loss of the benefit of the advertised bargain,” which was “measured by calculating the difference between the value of property as it was represented to be and its actual value at the time of its purchase,” because the complaint failed to allege “actual injury or damages as a result of the alleged [consumer Am. Standard Ins. Co. of Wisconsin v. Bracht obtain,” Doc. 55 at 13 (quoting , 103 S.W.3d 281, 293 (Mo. Ct. App. 2003)). According to Defendants, they were not unjustly enriched because Plaintiff “voluntarily entered into transactions with Defendants and received the goods bargained for at their advertised current prices.” Doc. 55 at 14. Plaintiff’s unjust enrichment claim rests on the same foundation as her MMPA claim. The premise of both is that she suffered a loss, and Defendants were correspondingly unjustly enriched, when she did not receive products that were “worth the higher amounts represented by Defendants’ baseless reference prices.” Doc. 63 at 13. Thus, in defense of her unjust enrichment claim, she once again argues that her allegation that the value of Defendants’ products was less than their advertised reference prices must be taken as true, and that it demonstrates that she suffered a loss. Doc. 63 at 14 (citing Doc. 26 ¶¶ 74-77). Plaintiff is once again mistaken, and for two reasons. see Iqbal Twombly First, as explained above, the Court does not have to accept as true allegations that see are conclusory, Fed. R. Civ. P. 8(a)(2), , 556 U.S. at 678, , 550 U.S. at 555, See supra 570, or unsupported by any particularized facts, Fed. R. Civ. P. 9(b), as Plaintiff’s are. Wright & Miller, , § 1298 (“[Rule 8(a)(2) and Rule 9(b)] must be read in conjunction with each other.”). Second, even if it were properly pled, the fact that the value of a purchased product was less than a former price would not support an unjust enrichment claim, because a former price is irrelevant to whether a seller was unjustly enriched by the price someone See Connelly Turner paid today. The actual fair market value of a product is the price at which a seller is willing to sell it and a buyer is willing to buy it. , 2021 WL 4281288, at *12; , 70 S.W.3d at 659. Plaintiff concedes that the actual values of the products were equal to the equalto prices she paid. Doc. 63 at 14 (citing Doc. 55 at 18) (“Defendants appear to agree with Plaintiff . . . [that] the actual value of each item was its purchase price—i.e., a product sold for $7.49 is worth $7.49.”). She intended to obtain a T-shirt that Defendants less were selling for $7.49, for example, and she obtained that T-shirt in exchange for $7.49. equalto Plaintiff appears to believe that she was entitled to pay for each product than that product’s actual value, and because she paid an amount each product’s actual value, Defendants somehow realized an “ill-gotten benefit.” But when someone pays $7.49 Nothing in the Complaint supports a finding that it would be inequitable for Defendants to retain the money Plaintiff paid for the products she purchased. Thus, Plaintiff fails to state an unjust enrichment claim upon which relief may be granted. Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, Doc. 54, is GRANTED and the Amended Complaint is DISMISSED. A separate order of dismissal accompanies this Memorandum and Order. IT IS FURTHER ORDERED that the Joint Memorandum Requesting Discovery Conference, Doc. 71, is DENIED as moot. Dated this 23"4 day of September, 2022.

SARAH E. PITLY UNITED STATES DISTRICT JUDGE