Timothy Boris v. Wal-Mart Stores, Inc., 649 F. App'x 424

Plaintiffs (Boris group) filed a putative class action against Wal‑Mart alleging deceptive marketing of two over‑the‑counter products: Equate Migraine Relief (red package) and Equate Extra Strength Headache Relief (green package).
Both products, plaintiffs allege, contain the same active ingredients in identical amounts, but Equate Migraine is sold at a substantially higher price.
Plaintiffs brought claims under California law (Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act), New Jersey Consumer Fraud Act, and New York General Business Law § 349.
The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6); plaintiffs appealed.
The Ninth Circuit affirmed, concluding the complaint—based on proximate presentation of differing package color and price despite disclosed ingredients—failed to state a claim.
The court expressly declined to extend the cited state consumer‑protection doctrines to the theory advanced here and noted plaintiffs waived any request to amend the complaint.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether proximate sale of two products with different packaging color and price, despite ingredient disclosure, violates state consumer‑protection laws	Boris: color + higher price for “Migraine” misleads consumers into paying more for no greater active ingredients	Wal‑Mart: ingredient and quantity are disclosed on labels; no actionable deception as pled	Court: Dismissed; proximate color/price differences alone do not state a claim as pled
Whether website allegations survive dismissal	Boris: website practices support deceptive‑marketing theory	Wal‑Mart: website allegations insufficient and tied to same flaw	Court: website claims dismissed with others (plaintiff did not challenge this separately)
Whether state laws should be expanded to cover these facts	Boris: seeks protection extension to packaging/color pricing scheme	Wal‑Mart: courts should not extend consumer‑protection statutes absent supporting precedent	Court: Declined to extend protections; cited lack of controlling authority supporting Boris’s theory
Whether plaintiff preserved right to amend complaint	Boris: did not press amendment on appeal	Wal‑Mart: notes plaintiff failed to seek leave to amend below	Court: Noted Boris waived amendment argument by failing to seek leave and not briefing amendment on appeal

Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152 (9th Cir. 2012) (standing and pleading standards in consumer fraud cases)
Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718 (9th Cir. 2007) (interpretation of consumer protection pleading requirements)
Cel‑Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 973 P.2d 527 (Cal. 1999) (scope of California Unfair Competition Law)
Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 655 A.2d 417 (N.J. 1995) (New Jersey consumer‑fraud law principles)
Stutman v. Chemical Bank, 731 N.E.2d 608 (N.Y. 2000) (scope of New York General Business Law § 349)
Smith v. Marsh, 194 F.3d 1045 (9th Cir. 1999) (waiver of issues and amendment practice on appeal)