Jill Hennessey v. The Gap, Inc., 86 F.4th 823

Background

Plaintiff Jill Hennessey sued Gap, Inc. and Old Navy, LLC under the Missouri Merchandising Practices Act (MMPA) and for unjust enrichment, alleging deceptive "regular"‑vs‑"sale" pricing at Old Navy stores and online.
She alleged at least 21 purchases during the class period, claiming advertised former (regular) prices were fictitious and that she paid sale prices for goods worth less than the represented former prices (and possibly worth less than the sale prices she paid).
Hennessey sought classwide benefit‑of‑the‑bargain damages (difference between represented value and actual value) and equitable relief for unjust enrichment.
The district court dismissed with prejudice under Rule 9(b), concluding Hennessey failed to plead ascertainable loss under the MMPA because she paid the advertised sale price and did not plausibly plead the actual value received; it also dismissed unjust enrichment because she received what she contracted to buy.
On appeal the Eighth Circuit affirmed, holding the claims sounded in fraud (so Rule 9(b) applied), and Hennessey failed to plead with particularity either the value represented or the actual value received to establish an ascertainable loss; unjust enrichment likewise failed and dismissal with prejudice was not an abuse of discretion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff pleaded an "ascertainable loss" under the MMPA	Hennessey: alleged benefit‑of‑the‑bargain loss because advertised former prices represented higher value than goods actually were	Defendants: plaintiff paid the advertised sale prices and received the goods she expected; no measurable loss alleged	Held: No ascertainable loss; must plead represented value and actual value with particularity under Rule 9(b) and she failed to do so
Whether advertised "regular" prices are necessarily representations of current value	Hennessey: former price is a representation of the product's value	Defendants: former prices are not dispositive of represented value at time of sale; sale price is the operative representation	Held: Court rejected plaintiff's broad theory; represented value may require proof beyond mere former price, and plaintiff alleged no facts showing the former price was the actual represented value
Whether alleging actual market value below the sale price (information and belief) satisfies ascertainable loss	Hennessey: alleged some items "may have even been less than the discounted prices"	Defendants: such allegations are conclusory and not pled with required particularity	Held: Dismissed — allegations on information and belief lacked supporting facts and did not identify which items or how actual values were calculated; insufficient under Rule 9(b)
Whether dismissal with prejudice without leave to amend was an abuse of discretion	Hennessey: district court should have allowed amendment to plead actual value with particularity	Defendants: plaintiff had opportunity and did not move to amend; no unfair surprise	Held: No abuse of discretion — Rule 9(b) is a pleading requirement, plaintiff did not seek leave to amend below or file a Rule 60 motion with a proposed amended complaint; dismissal with prejudice affirmed

Key Cases Cited

Kendrick v. Ryus, 123 S.W. 937 (Mo. 1909) (adopted benefit‑of‑the‑bargain measure for fraud cases)
Finke v. Boyer, 56 S.W.2d 372 (Mo. 1932) (benefit‑of‑the‑bargain applies to defects in quality; measure is difference between represented and actual value)
Smith v. Tracy, 372 S.W.2d 925 (Mo. 1963) (contract price is strong evidence of represented value)
Vitello v. Natrol, LLC, 50 F.4th 689 (8th Cir. 2022) (MMPA ascertainable‑loss requires pleading represented and actual value)
Goldsmith v. Lee Enter., Inc., 57 F.4th 608 (8th Cir. 2023) (no ascertainable loss where billing practice created appearance but no actual overpayment)
Kuhns v. Scottrade, Inc., 868 F.3d 711 (8th Cir. 2017) (MMPA fraud claims subject to Rule 9(b))
Drobnak v. Andersen Corp., 561 F.3d 778 (8th Cir. 2009) (fraud‑based claims and Rule 9(b) particularity for related unjust enrichment claims)
Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843 (8th Cir. 2014) (elements of unjust enrichment under Missouri law)
Shaulis v. Nordstrom, Inc., 865 F.3d 1 (1st Cir. 2017) (discount‑pricing disappointment does not alone show consumer loss under consumer‑protection law)
Gerboc v. Contextlogic, Inc., 867 F.3d 675 (6th Cir. 2017) (no unjust enrichment where plaintiff got what he paid for)