Boris v. Wal-Mart Stores, Inc., 2014 U.S. Dist. LEXIS 56115

Background

Plaintiffs (Boris, Cooper, Girard, Newsome) filed a putative class action alleging Wal‑Mart deceptively marketed Equate Migraine by charging 2–3× more and using red packaging versus Equate Extra Strength (green), though both contain identical active ingredients and doses.
Claims asserted: California FAL, UCL (unlawful and unfair), CLRA; New Jersey Consumer Fraud Act; New York GBL § 349; unjust enrichment/restitution; and breach of the covenant of good faith and fair dealing.
One plaintiff (Girard) alleges online reliance: Wal‑Mart’s website listed three active ingredients for Equate Migraine but only one for Equate ES.
Wal‑Mart moved to dismiss for failure to state a claim, Rule 9(b), preemption, and primary jurisdiction; the court resolved dismissal on Rule 12(b)(6) grounds.
The court found price differential and package color are not statements or representations; website allegation was pleaded as reinforcement rather than an independent basis and failed Rule 9(b) as to timing and reliance.
Result: most claims dismissed with prejudice; limited leave to amend only for website‑based FAL/CLRA/UCL claims by the online‑purchaser subclass within 21 days.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Equate Migraine’s higher price and red packaging constitute a deceptive "statement or representation" under FAL/CLRA/UCL	Price and red packaging misled reasonable consumers into believing Equate Migraine was more effective	Price is simply a merchant’s offering and color is non‑verbal/symbolic, not a statement about product efficacy	Dismissed: price and color are not actionable representations; FAL/CLRA/UCL claims on that basis dismissed with prejudice
Whether UCL "unfair" prong is satisfied by pricing/packaging	Such conduct is immoral, oppressive and injurious to consumers	No tether to any specific constitutional, statutory, or regulatory provision; courts cannot judicially police pricing or packaging color	Dismissed: unfair claim fails for lack of statutory/regulatory predicate and nonjusticiability of price regulation
Applicability of NJCFA and NY GBL to price/packaging claims	State consumer statutes prohibit deceptive practices and plaintiffs suffered ascertainable loss	Neither price nor package color is a misrepresentation or omission under these statutes	Dismissed: NJCFA and NY GBL claims based on price/color fail
Whether website allegation supports claims and satisfies Rule 9(b); adequacy of Online Purchaser class	Website misrepresented Equate ES active ingredients and induced online purchases (Girard)	Website claim was pleaded only as a bolster to price/color theory; Girard did not plead when he viewed the site or that he relied on specific webpages; class definition doesn’t limit to online purchasers	Dismissed without prejudice as pleaded: website‑based FAL/CLRA/UCL claims may be repled; Girard’s allegations fail Rule 9(b); Online Purchaser class definition inadequate
Breach of covenant and unjust enrichment remedies based on alleged deception	Wal‑Mart frustrated plaintiffs’ expectations and was unjustly enriched by overpricing	Plaintiffs merely allege they paid too much; no contract benefit was thwarted; no actionable predicate misconduct remains	Dismissed with prejudice: covenant claim and unjust enrichment fail because deception claims (predicate) were dismissed

Key Cases Cited

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 8)
Ashcroft v. Iqbal, 556 U.S. 662 (distinguishing factual allegations from legal conclusions)
Cel‑Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163 (UCL unfair prong must be tethered to specific policy or statute)
Kasky v. Nike, Inc., 27 Cal.4th 939 (scope of false advertising law and statements to the public)
Kearns v. Ford Motor Co., 567 F.3d 1120 (Rule 9(b) applies to consumer claims that sound in fraud)
Wal‑Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (product color/design not inherently distinctive for trade dress purposes)