Mulder v. Kohl's Department Stores, Inc., 865 F.3d 17

Plaintiff Ellen Mulder bought two items at a Kohl’s in Massachusetts whose price tags listed lower sale prices alongside higher "comparison" or MSRP figures; she alleges the comparison prices were fictitious to create phantom markdowns.
Mulder sued in Massachusetts Superior Court asserting fraud, breach of contract, unjust enrichment, violations of the FTC Act and state regulations, and Chapter 93A claims; Kohl’s removed the case to federal court.
The district court dismissed all claims for failure to state a claim, concluding Mulder had not alleged a legally cognizable injury under Chapter 93A and dismissed the common-law claims; it also denied leave to file a second amended complaint.
On appeal the First Circuit applied the reasoning of the contemporaneous Shaulis v. Nordstrom decision and affirmed dismissal of the Chapter 93A and common-law claims for the same reasons.
Mulder sought leave to amend to add a new "travel expenses" injury theory (costs of driving ~10 miles to the store). The district court denied leave for undue delay and futility; the First Circuit affirmed those bases.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mulder pleaded a Chapter 93A injury for damages or injunctive relief	Kohl’s price tags deceived consumers by showing fictitious comparison prices, causing economic injury	Comparison prices did not give rise to the distinct, identifiable injury Chapter 93A requires	Affirmed dismissal — no cognizable Chapter 93A injury (per Shaulis reasoning)
Whether the common-law claims (fraud, breach, unjust enrichment) survive	Price-tag deception supports fraud and restitution claims	Claims insufficiently pleaded/legally deficient	Affirmed dismissal of common-law claims
Whether district court abused discretion in denying leave to amend due to delay	Leave should be allowed to add travel-expense theory	Amendment was untimely and filed after briefing and argument on dismissal; plaintiff delayed	Affirmed — denial for undue delay was within discretion
Whether proposed "travel expenses" theory could survive (futility / pleading)	Travel costs incurred visiting Kohl’s are an objective, compensable injury caused by Kohl’s deception	Theory lacks causation, is impermissible "deception-as-injury" recharacterization, and fails Rule 9(b) particularity	Affirmed — amendment futile: fails Rule 9(b), lacks causation, and would improperly revive a per se deception injury under Chapter 93A

Carter's of New Bedford, Inc. v. Nike, Inc., 790 F.3d 289 (1st Cir. 2015) (standard of de novo review and application of governing law in diversity appeals)
Sanders v. Phoenix Ins. Co., 843 F.3d 37 (1st Cir. 2016) (choice-of-law principle for applying state substantive law in federal diversity cases)
Nikitine v. Wilmington Trust Co., 715 F.3d 388 (1st Cir. 2013) (standards for denying leave to amend: undue delay, bad faith, futility)
Aponte–Torres v. Univ. of P.R., 445 F.3d 50 (1st Cir. 2006) (district court discretion in amendment decisions)
Foman v. Davis, 371 U.S. 178 (U.S. 1962) (Rule 15 principles and factors for denying leave to amend)
Shaulis v. Nordstrom, Inc., 120 F. Supp. 3d 40 (D. Mass. 2015) (parallel district-court decision addressing identical price-tag deception claims)
Tyler v. Michaels Stores, Inc., 984 N.E.2d 737 (Mass. 2013) (Mass. SJC rule that Chapter 93A requires a separate, identifiable harm distinct from deceptive conduct)
Bellermann v. Fitchburg Gas & Elec. Light Co., 54 N.E.3d 1106 (Mass. 2016) (reaffirming Tyler’s requirement for a distinct injury under Chapter 93A)
Shaw v. Digital Equip. Corp., 82 F.3d 1194 (1st Cir. 1996) (advertising of "amazing prices" often constitutes nonactionable puffery)
North Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8 (1st Cir. 2009) (Rule 9(b) applies where core allegations effectively charge fraud)