United States District Court, E.D. Wisconsin
MIGUEL MURILLO, MICHAEL BAEHMAN, and BONNIE BAEHMAN, on Behalf of Themselves and All Others Similar Situated, Plaintiffs,
KOHL’S CORPORATION and KOHL’S DEPARTMENT STORES, INC., Defendants.
Stadtmueller U.S. District Judge.
February 18, 2016, the plaintiffs filed suit, on behalf of
themselves and all those similarly situated, against the
defendants for purportedly engaging in a nationwide marketing
scheme that is untrue, deceptive, and misleading to
consumers. (See generally Docket #1). In many
respects, this action parallels the allegations set forth in
a case that was recently litigated before this Court by a
California plaintiff. See Le v. Kohls Dep't Stores,
Inc., No. 15-CV-1171-JPS, 2016 WL 498083, at *1-*3 (E.D.
Wis. Feb. 8, 2016).
the defendants (collectively
“Kohls”) filed a motion to dismiss (Docket #12),
the plaintiffs filed an amended complaint on April 5, 2016
(Docket #14). In response, Kohls filed a motion to dismiss
the amended complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). (Docket #17). This motion to
dismiss is now fully briefed and ripe for adjudication.
(Docket #18, #26, #30). For the reasons stated herein,
Kohls’ motion will be denied in its entirety.
addressing the merits of the pending motion to dismiss, the
Court will first provide an overview of: (1) the parties; (2)
the factual background of this case; and (3) the
plaintiffs’ claims embodied in the amended complaint.
Miguel Murillo, Michael Baehman, and Bonnie Baehman are
citizens of Wisconsin. (Docket #14 ¶¶ 10-12). Each
plaintiff claims to have purchased one or more items from
various Kohls stores located in the State of Wisconsin at a
sale or discount price off of the “regular” or
“original” item prices. (Docket #14 ¶¶
52-71). The plaintiffs further claim to have made these
purchases at various times between March of 2015 and December
of 2015. (See Docket #14 ¶¶ 52-71)
(listing the specific dates, products, and locations in which
the plaintiffs purchased the merchandise).
Kohl’s Corporation is a Wisconsin company with its
principal place of business located at N56 W17000 Ridgewood
Drive, Menomonee Falls, Wisconsin. (Docket #14 ¶ 13).
Defendant Kohl’s Department Stores, Inc., is a Delaware
company with its principal place of business also located at
N56 W17000 Ridgewood Drive, Menomonee Falls, Wisconsin.
(Docket #14 ¶ 14). The plaintiffs’ claim that both
of the defendants own and operate retail stores in Wisconsin.
(Docket #14 ¶ 16). Kohls operates approximately 1, 164
department stores in 49 states, including 40 stores in
Wisconsin, and an e-commerce website
(www.Kohls.com), in which it sells private label,
exclusive, and national brand apparel, footwear, accessories,
beauty, and home products. (Docket #14 ¶ 18).
plaintiffs claim that consumer fraud is afoot in Kohls stores
across the nation. (Docket #14 ¶¶ 1-9, 25-38). More
precisely, the plaintiffs allege that Kohls engages in an
untrue, deceptive, and misleading marketing practice-both in
its brick-and-mortar department stores and on its e-commerce
website-that induces consumers to buy or pay more for
merchandise than they would absent the unlawful conduct.
(Docket #14 ¶¶ 1-9, 25-38). The fraud, according to
the plaintiffs’ theory, plays on a basic consumer
motivation: the promise of a good deal. (Docket #14
¶¶ 1-9, 25-38).
to the allegations made previously before this Court in
Le, the plaintiffs claim that Kohls advertises its
goods at certain discounts off of “original” or
“regular” prices. (Docket #14 ¶¶ 2,
22-23, 26). According to the plaintiffs, these
“original” or “regular” prices,
however, are misleading because they do not reflect the
actual prices at which the products are routinely, if ever,
sold to retail customers. (Docket #14 ¶¶ 2, 22-23,
26). Instead, the plaintiffs claim that Kohls’
“regular” prices are either inflated or
fabricated. (Docket #14 ¶¶ 2, 22-31). The amended
complaint explains that the problem with this practice is
that the inflated and/or fabricated prices advertised by
Kohls give consumers the wrongful impression that they are
getting a better deal for goods than they actually are in
reality. (Docket #14 ¶¶ 1-9, 22-31). As a result of
this purportedly deceptive discount price comparison scheme,
the plaintiffs claim that Kohls encourages consumers to
either: (1) buy products that they would never buy absent the
“incredible savings”; or (2) pay more for
products than they would have paid absent the illusory
“deal.” (Docket #14 ¶¶ 8-9, 31, 55).
the plaintiffs claimed to have purchased various
items-including, but not limited to, juniors’,
boys’ and women’s clothing-at various Kohls
stores in Wisconsin, they claim that Kohls operates its
deceptive price comparison scheme on a national scale.
(Docket #14 ¶¶ 29-30, 52-71). Further, they claim
that this scheme “has been uniformly implemented as
part of a concerted, years long, pervasive campaign to
mislead consumers that is ongoing and continues to this
day.” (Docket #14 ¶ 124). The plaintiffs claim
that this national scheme is effectuated by the
“prominent” display of “regular” and
“sale” prices on Kohls’ in-store
merchandise tags, online advertisements, and in-store price
displays, such as that which is pictured below. (See
Figure 1; Docket #14 ¶¶ 30, 46).
1: Sample Deceptive Price Display (Docket #14 ¶ 46)
plaintiffs claim that Kohls also furthers this scheme by
displaying false price comparisons on product receipts.
(Docket #14 ¶ 30).
April 5, 2016, the plaintiffs filed an amended complaint
alleging a putative class action on behalf of two potential
classes, a Wisconsin Class and a Nationwide class. (Docket #1
¶¶ 77-129). They alleged:
1. A statutory violation of the Wisconsin Deceptive Trade
Practices Act, Wis.Stat. § 100.18 (“WDTPA”)
(Docket #14 ¶¶ 90-98), on behalf of a nationwide
class, or, in the alternative, a Wisconsin class;
2. A Wisconsin common law unjust enrichment claim on behalf
of a nationwide class, or, in the alternative, a Wisconsin
class (Docket #14 ¶¶ 99-106);
3. A multi-state consumer fraud claim (Docket #14
¶¶ 107-121); and
4. A claim for declaratory and injunctive relief pursuant to
28 U.S.C. § 2201, et seq. (Docket #14
has moved to dismiss all of these claims pursuant to Federal
Rules of Civil Procedure 12(b)(6) and 12(b)(1). (Docket #17).
In support of its motion, Kohls argues that:
1. The plaintiffs’ WDTPA claim must be dismissed
because it: (i) is based, in part, on representations that
are not actionable; and (ii) is not pled with sufficient
2. The plaintiffs cannot maintain a cause of action for
unjust enrichment because they have not alleged a common law
intentional misrepresentation claim;
3. The plaintiffs lack statutory standing to pursue their
multi-state claim, which is also improperly pled; and
4. The plaintiffs’ claim under the Declaratory Judgment
Act is not justiciable, and, in any case, the Court should
decline to exercise its discretion to hear the claim because
it is duplicative.
(See generally Docket #18). The plaintiffs oppose
all of these arguments. (Docket #26).
motion to dismiss pursuant to [Rule] 12(b)(6) challenges the
viability of a complaint by arguing that it fails to state a
claim upon which relief may be granted.” Camasta v.
Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th
Cir. 2014). “To survive a motion to dismiss under Rule
12(b)(6), a plaintiff must state enough facts that, when
accepted as true, ‘state a claim for relief that is
plausible on its face.’” Spierer v.
Rossman, 798 F.3d 502, 510 (7th Cir. 2015) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” McCauley v. City of
Chicago, 671 F.3d 611, 615 (7th Cir. 2011) (citing
Ashcroft v. Iqbal, 556 U.S. 662 (2009)). The Court
must “tak[e] all factual allegations as true and draw
all reasonable inferences in favor of the plaintiffs.”
Pugh v. Tribune Co., 521 F.3d 686, 692 (7th Cir.
respect to challenges made to subject matter jurisdiction,
“[m]otions to dismiss under Rule 12(b)(1) are meant to
test the sufficiency of the complaint, not to decide the
merits of the case.” Ctr. for Dermatology &
Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588-89 (7th
Cir. 2014) (citing Weiler v. Household Fin. Corp.,
101 F.3d 519, 524 n.1 (7th Cir. 1996)); see also Gibson
v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990)
(applying the same principle to motions under Rule 12(b)(6)).
As when deciding a Rule 12(b)(6) motion, “[i]n the
context of a motion to dismiss for lack of subject matter
jurisdiction, [the Court must] accept as true the well
pleaded factual allegations, drawing all reasonable
inferences in favor of the plaintiff.” Iddir v.
INS, 301 F.3d 492, 496 (7th Cir. 2002). However,
“a plaintiff faced with a ...