ORDER
The plaintiff, Victor Le (“Le”), on behalf of himself and others similarly situated, filed the complaint in this action on September 30, 2015. (Docket # 1). In short, Le claims that he and putative class members have suffered — and continue to suffer— from unfair, deceptive, and unlawful business practices implemented by the defendants, collectively “Kohls.”
1. BACKGROUND
Before delving into the complex legal issues underlying this motion, the Court must first provide an overview of: (1) the parties; (2) the factual background of this case; and (3) Le’s claims in relation to the pending motion to dismiss.
1.1 The Parties
Plaintiff, Victor Le, is a citizen of California.
Defendant Kohls Corporation is a Wisconsin company with its principal place of business located at N56 W17000 Ridge-wood Drive, Menomonee Falls, Wisconsin. (Docket # 1 ¶ 11). Defendant Kohls Department Stores, Inc., is a Delaware company with its principal place of business located at N56 W17000 Ridgewood Drive, Menomonee Falls, Wisconsin.
1.2 Factual Background
The gravamen of Le’s complaint is that Kohls uses inflated or fabricated “original” prices on its merchandise so that Kohls’ products — and Kohls’ “sale” prices — appear more attractive to consumers. (Docket # 1 ¶¶ 2, 8, 20-28). ■ Le describes this practice as a “misleading discount price comparison scheme,” which is, according to Le, deceptive and thereby harms consumers. (See Docket # 1 ¶ 5).
More specifically, Le alleges that Kohls engages in a company-wide, pervasive, and continuous campaign of falsely claiming that each of their products sells at far higher prices than by other merchants. (Docket # 1 ¶ 27). He asserts that this practice in turn induces consumers to purchase merchandise at purportedly marked-down sale prices. (Docket # 1 ¶¶ 23-29). Le thus claims the “item prices” or “original” prices advertised by Kohls do not reflect a price at which Kohls’ products are routinely, if ever, sold to retail customers. (Docket # 1 ¶¶ 23-29). This concept was most aptly demonstrated by the plaintiff in a graph (see Table 1), which was prepared by Consumers’ Checkbook/Center for the Study of Services (“CSS”), an independent, nonprofit consumer organization based in Washington, D.C. (Docket # 1 ¶ 35).
According to Le, the issue with Kohls’ advertising scheme is that it misleads consumers into believing that Kohls’ prices are significantly lower than the prices regularly offered for those products — by Kohls itself or other merchants. (Docket # 1 ¶¶ 20-27). Under this theory, Kohls’ marketing tactics are economically harmful because they deceive consumers to: (1) buy products that they would not have bought “but for” the illusory “sale”; or (2) pay more for products than they would have paid had they been fully informed of the actual “item price” for that merchandise. (Docket # 1 ¶¶ 23-29).
This is, in fact, exactly what Le claims happened to him in March, April, May, and July of 2015. when he shopped at various Kohls stores located in California. (Docket# 1 ¶¶ 42-47). Le claims that he “and the members of the [putative] Classes would not have purchased the [Kohls] merchandise ... at all, or would not have paid as much for the merchandise were it not for the purported ‘savings’ adverted to by [Kohls].” (Docket # 1 ¶ 50).
1.3 Le’s Claims and Kohls’ Motion to Dismiss
On September 30, 2015, Le filed this putative class action on behalf of three potential classes. (Docket # 1 ¶¶ 64-70, 78-126). He alleged statutory violations of:
1. The Wisconsin Deceptive Trade Practices Act, Wis. Stat. Ann. § 100.18 (“WDTPA”) (Docket # 1 ¶¶ 64-70) on behalf of a nationwide class;
2. The California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. (“UCL”) (Docket # 1 ¶¶ 93-117) on behalf of a California class;
3. The Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq. (“CLRA”) (Docket #1 ¶¶ 118-126) on behalf of a California class; and
4. Forty consumer protection laws on behalf of a multi-state class of consumers (Docket # 1 ¶¶ 78-92).
Le also brings a common law unjust enrichment claim on behalf of a nationwide class or, in the alternative, a California class. (Docket # 1 ¶¶ 71-77). The plaintiff
Kohls has moved to dismiss all of these claims pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). (Docket # 18). In support of its motion, Kohls argues that Le: (1) failed to adequately plead the necessary facts showing that he is entitled to restitution under the UCL and CLRA; (2) lacks Article III standing to sue for injunctive relief under the UCL and CLRA; (3) lacks Article III standing to sue under any state law other than California (where he lives and was allegedly injured by Kohls); (4) fails to state a claim under the WDTPA because Le “saw” the allegedly deceptive statements in California; (5) fails to state an unjust enrichment claim under Wisconsin law because he entered into express contracts with Kohls; and (6) fails to state an unjust enrichment claim under California law because unjust enrichment is not a cognizable cause of action in California. (See generally Docket # 19). Le opposes all of these arguments. (Docket # 24).
2. LEGAL STANDARD
“A 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.,
Similarly, “[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,
3. ANALYSIS
Kohls argues that “each and every” one of Le’s purported claims for relief should be dismissed under Rule 12(b)(1) and/or Rule 12(b)(6). (See Docket # 19 at 2). For the sake of clarity, the Court will discuss these issues on an argument-by-argument basis.
3.1 Monetary Damages under the UCL and CLRA
On behalf of a class of California citizens, Le seeks restitution
Before delving into the parties’- arguments, the Court must clarify the precise issues that are raised in Kohls’ Rule 12(b)(6) motion. At bottom, the heart of this motion to dismiss is whether Le states a viable claim for restitution under the UCL and CLRA.
Kohls argues that the only legally cognizable method of calculating Le’s restitution is through the price-to-value method. (Docket # 19 at 9-17; Docket # 26 at 7-15). In other words, Kohls claims that Le is only entitled to restitution if he can prove that there was a difference between: (1) the value of the products that Le purchased; and (2) the price that Le paid for those products. (Docket # 19 at 11-14) (describing the price-to-value method as “price paid minus value received”). Therefore, because Le did not allege that he purchased Kohls’ products at prices that exceed those products’ values, Kohls argues that Le did not plead a cognizable claim for restitution and his UCL and CLRA claims must be dismissed under Rule 12(b)(6). (Docket # 19 at 13-14).
Le responds that Kohls’ interpretation of California law is overly narrow and inappropriate in this case. (See Docket # 24 at 13-18). He argues that the UCL and CLRA permit courts to rely on a variety of measures when calculating restitution, not just price-to-value method proposed by Kohls. (Docket # 24 at 15-18). Le alleges that, based on the type of harm that he has suffered, an appropriate methodology for calculating restitution will likely in-
In light of these arguments, the Court must address three interrelated questions: (1) whether California law recognizes any other alternative measures of restitution under the UCL and CLRA (ie., is the price-to-value method the only permissible way to calculate restitution?);
First, the Court agrees with Le’s interpretation of California law, namely, that restitutionary relief under the UCL and CLRA is not strictly and categorically confined to the price-to-value method as proffered by Kohls. Second, the Court concludes that it need not decide Kohls’ contention that any potential restitution in this case must take into account the value that Le received from the merchandise that he purchased. Though Kohls presents persuasive arguments in this regard, such a decision is not one that can or should be made at this juncture.
3.1.1 Restitution Under the UCL and CLRA is not Confined to the Price-to-Value Method
In order to decide whether restitution under the UCL and CLRA is strictly confined to the price-to-value measure, the Court must provide some background on California consumer protection law. Courts have broad equitable powers to enforce both the UCL and CLRA. See Yanting Zhang v. Superior Court,
The California Supreme Court, however, has not articulated a single definition for what an “order[] for restitution” means under these statutes. On the one hand, in Kraus, the Court broadly held that a restitution order is one that “compel[s] a UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is, to persons who had an ownership interest in the property or those claiming through that person.” Korea Supply Co.,
Despite these different forms, however, California jurisprudence reveals that restitution under the UCL and CLRA is consistently awarded with the goal of “restoring” plaintiffs with money and/or property that has been wrongfully taken as a result of the defendant’s unlawful practices. See Korea Supply Co.,
Keeping in mind the goal of restitution, the California Supreme Court’s holdings reveal that the appropriate measure of recovery depends on the nature of the case and the alleged harm that he/she suffers. Cf. Russell v. Kohl’s Dep’t Stores, Inc., Case No. 5:15-CV-01143-RGK-SP, slip op. at 4 (C.D.Cal. Oct. 6, 2015) (“[Alternative measures of restitution may be appropriate based on the circumstances of each case.”). This is precisely why, in Cortez, the Court held that a restitution award of backpay wages — which are frequently the subject of actual damage awards — was an authorized measure of recovery to restore money to plaintiffs who were deprived overtime wages. Cortez,
Other courts have likewise interpreted California’s consumer protection laws to authorize multiple forms of restitutionary recovery. See e.g., Pulaski & Middleman, LLC v. Google, Inc.,
Thus, this Court agrees that California case law has not cabined restitution under the UCL and/or CLRA to the price-to-value method as argued by Kohls.
3.1.2 Determining an Appropriate Restitution Award is Inappropriate at the Pleading Stage
Next, the Court must address the related issues of: (1) whether, in this case, the price-to-value method is nonetheless the only cognizable legal theory under which Le could recover restitution; and, therefore, (2) whether Le’s failure to allege the value that he received for Kohls’ merchandise affects the viability of Le’s complaint. See Russell, at *4, No. 5:15-CV-01143-RGK-SP, slip op. at 4 (explaining the distinction between the availability of alternative restitutionary measures under the UCL and the viability of such measures). On the one hand, Kohls argues that even if there are alterative ways to calculate restitution under the UCL and CLRA, the price-to-value method is the only appropriate measure where, as here, a plaintiff receives some value from his/her purchases. (Docket # 19 at 11-13). Otherwise, according to Kohls, Le’s proposed restitution measures • will over-compensate Le’s financial loss and thereby will put him in a better position than if the alleged misconduct had not occurred. (Docket # 19 at 14-17). Le does not specifically address how the value of his Kohls’ merchandise might figure into his proffered restitutionary measures. Rather, he argues that even if the products’ value is considered, the appropriate restitution award — and method by which restitution is calculated — must be resolved at a later date with a more complete factual record. (Docket #24 at 15-20).
The Court again agrees with Le that, at this juncture: (1) the Court need not decide whether the price-to-value method is the only cognizable measure of Le’s restitution in this case; and (2) therefore, Le’s failure to plead that he purchased Kohls’ products at a price greater than their value is not fatal to Le’s claim. See In re Tobacco Cases II,
Similarly, at this early stage the Court declines to decide what role the value of Le’s merchandise will ultimately play in a potential recovery. This question is inextricably tied to the facts and theories that the parties develop during the course of the litigation, particularly as they relate to the alleged “loss” that Le has suffered. Cf. Pulaski & Middleman, LLC,
The Ninth Circuit addressed a strikingly similar set of arguments when reviewing a class certification decision in Pulaski & Middleman, LLC.
To determine the appropriate measure of restitution, the Ninth Circuit closely analyzed the nature of Pulaski’s alleged economic harm. Id. The court explained that the loss associated with being “deceived by misrepresentations into making a purchase” is that “the consumer has purchased a product that he or she paid more for than he or she otherwise might have been willing to pay if the product had been labeled accurately.” Id. In this infor
Kohls spills much ink arguing that measures such as those proposed in Pulaski, Spann, and by Le are not restitution-ary in nature. (Docket # 19 at 14-17). Kohls argues that neither Le’s full refund, false discount value, nor net profits method takes into account the value that a purchaser like Le might have received from Kohls’ merchandise. As such, Kohls argues that Le’s proposed measure would allow him to recover more than what would be available to him under a theoretical tort claim. (Docket # 19 at 14-17).
Indeed, this Court recognizes that Le’s proposed monetary damages under the UCL and CLRA are confined to resti-tutionary damages. See Korea Supply Co.,
In sum, all that this Court deems necessary to decide with respect to Kohls’ motion at this pleading stage is that Le has alleged sufficient facts to show that: (1) he has suffered some cognizable economic loss under the UCL and CLRA; and (2) that restitutionary remedies to restore Le’s alleged loss may be available to him under California law. Cf. Camasta v. Jos. A. Bank Clothiers, Inc.,
3.2 Injunctive Relief under the UCL
Le also seeks injunctive relief under the UCL. (Docket # 1 ¶¶ 100, 108, 117). However, Kohls moves to dismiss Le’s claim for injunctive relief under Rule 12(b)(1) because they assert that Le lacks Article III standing to pursue his claim.
In response, Le contends that the fact he is “aware” of the defendants’ conduct does not deprive him of standing. (Docket # 24 at 20-23). Rather, he argues that standing doctrine recognizes that where the defendants have engaged in “years-long and repeated misconduct,” there is a sufficient likelihood that the unlawful conduct will continue. (Docket # 24 at 20). Moreover, Le points out that if Kohls’ theory is accepted, injunctive relief would become impossible for UCL plaintiffs to obtain. (Docket # 24 at 21-22). This is because a plaintiff must know that the defendant’s advertising scheme is deceptive in order to sue; and, under Kohls’ theory, as soon as plaintiffs would become aware of such unlawful conduct, they would automatically lose standing to seek an injunction. (Docket # 24 at 21-22).
For reasons explained below, the Court concludes that Le has constitutional standing to pursue a claim for injunctive relief under the UCL and will deny Kohls’ motion to dismiss this claim pursuant to Rule 12(b)(1).
Article III of the Constitution limits the federal courts’ ability to decide “cases and controversies.” U.S. Const, art. Ill, § 2. Springing out of this limitation, courts have created a number of justiciability doctrines to cabin the courts’ power. See O’Sullivan v. City of Chicago,
However, “past wrongs, while not sufficient to confer standing for injunctive relief, may be evidence that future violations are likely to occur.” Id.; see also Perry v. Sheahan,
Kohls’ argument rests on its position that Le does not suffer from “a real and immediate danger” that any alleged harm “will occur in the future.” (Docket # 19 at 18) (internal citations omitted). However, viewing the facts in the light most favorable to Le, the Court concludes that Le has alleged a “significant likelihood and immediacy” of injury from Kohls’ advertising scheme, and that an order from this Court would be able to redress that harm.
Le claims that Kohls’ allegedly deceptive advertising scheme is “company-wide, pervasive, and continuous.” (Docket # 1 ¶ 27). Thus, Le sufficiently pleads the likelihood of recurring economic injury for Article III standing purposes. Cf. Perry,
The Court rejects Kohls’ argument that Le’s “awareness” of Kohls’ alleged pricing scheme somehow strips him of Article III standing. (Docket # 19 at 18-20). Though Kohls does not make clear what prong of the standing test they attack with this argument, the Court agrees that “[t]his [question] is best understood as an argument directed to redressability.” Ries v. Arizona Beverages USA LLC,
Courts have addressed the issue of how a plaintiffs “awareness” of allegedly unlawful conduct affects standing for the purpose of injunctive relief in different ways. See Russell, No. 5:15-CV-01143-RGK-SP, slip op. at 6; compare Henderson v. Gruma Corp.,
Moreover, while Kohls’ argument may be appropriate in the context of a product-specific complaint, the Court cannot agree that Kohls’ argument applies with the same force where, as here, the complaint is aimed at a “company-wide, pervasive, and continuous” false advertising campaign. Cf. Conrad.,
Kohls relies heavily on Camasta v. Jos. A. Bank Clothiers, Inc.,
Kohls’ argument with respect to Camas-ta is flawed for two reasons. First, from a legal perspective, the Camasta court merely repeated the well-accepted rule that the standing inquiry for the purpose of injunc-tive relief is probabilistic, ie., is there “likelihood” that some harm will be suffered by the plaintiff in the future? Camasta,
Second, Camasta is factually distinguishable. The only allegation in the complaint with respect to Camasta’s likelihood of suffering future harm was the sweeping assertion that “.‘there [wa]s a substantial danger that [the defendant’s] wrongful retail practices w[ould] continue.’ ” Camasta,
In sum, Le has alleged all that is required of him under Article III for the purpose of maintaining his claim for in-junctive relief under the UCL. Kohls’ motion to dismiss on this ground will be denied.
3.3 Le’s Claim on Behalf of a Multi-State Class of Consumers
Le’s third claim for relief alleges that Kohls’ conduct has violated the consumer protection laws of 40 states and the District of Columbia. (Docket # 1 ¶¶ 78-92). Le brings this claim “individually under the laws of California and on behalf of all other persons who purchased merchandise in” states that maintain consumer protection laws similar to those of California. (Docket # 1 ¶¶ 79-92). Kohls argues that Le’s claim must be dismissed under Rule 12(b)(1) because he lacks constitutional standing to sue under the laws of states in which he does not reside and has suffered no injury. (Docket # 19 at 20-21). Le responds that: (1) he has constitutional standing to pursue his claim; and (2) Kohls’ argument conflates standing with class certification under Federal Rule of Civil Procedure 23. (Docket # 24 at 23-28).
Standing issues in the context of class actions can be nuanced and confusing. See Payton,
District judges across the nation have decided this question differently,
Though the Seventh Circuit has not decided the precise question at issue here, its opinion in Morrison v. YTB Int’l, Inc.,
The Seventh Circuit found error in that decision. Id. at 536. It held that the out-of-state plaintiffs did have constitutional standing to pursue claims, under the ICFA. Id. (“Plaintiffs allege that they are victims of a pyramid scheme that saddled them with financial loss, which YTB caused. The judiciary can redress that injury by ordering YTB to pay money to the victims. Nothing more is required for [constitutional] standing.”). Though the plaintiffs did not live in Illinois, and were (potentially) uninjured in Illinois, those facts did not— from an Article III standing perspective— bar them from pursuing claims under Illinois’ consumer fraud statute. Morrison,
Under Morrison’s reasoning, the Court concludes that Le has constitutional standing to pursue his claim on behalf of a multi-state class of consumers. Like the out-state-plaintiffs in Morrison, the fact that Le does not live, nor was injured, in the 40 states under which his claim may arise is of no constitutional moment. Id. Similar to Morrison, Le has asserted that Kohls’ allegedly deceptive pricing scheme injured him, and this Court can remedy Le’s alleged injury by ordering Kohls to pay Le some measure of restitution (assuming he proves up those damages under the applicable law). That is all that the
Moreover, with regard to the choice of law issue, it bears mentioning that Le is pursuing this claim “individually under the laws of California,” namely the UCL and CLRA. (Docket #1 ¶ T9). As discussed above, Le has constitutional standing to pursue relief under those statutes. It is unclear, at least on the pleadings, whether the claim will continue to be litigated under the laws of California or some combination of other states’ statutes. Cf. In re Bayer Corp. Combination Aspirin Products Mktg. & Sales Practices Litig.,
The Court’s conclusion also recognizes that “[t]he underlying standing principle is that the injury that a plaintiff suffers defines the scope of the controversy that she is entitled to litigate.” Newberg on Class Actions § 2:6 (5th ed.). Here, Le claims that he and the putative class members have suffered a common injury as a result of Kohls’ nationwide, pervasive advertising scheme. (Docket # 1 ¶¶ 27-28, 84-92); see also In re Aftermarket Filters Antitrust Litig.,
While the Court appreciates Kohls’ prudential concerns about the effect of such a claim, the legislature, through the Class Action Fairness Act, has “authorize[d] federal judges to resolve big-stakes, multi-state class actions.” Morrison v. YTB Int’l, Inc.,
3.4 WDTPA Claim
Le also claims that Kohls violated the WDTPA. (Docket # 1 ¶¶ 64-70). Kohls argues that Le’s claim under the WDTPA must be dismissed under Rule 12(b)(6) because the statute applies only to statements “made” in Wisconsin.
The WDTPA provides that:
No.. .corporation.. .with intent to sell.. .merchandise.. .to the public for sale,.. .shall make, publish, disseminate, circulate, or place before the public, ...in this state, in a newspaper, magazine or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet, letter, sign, placard, card, label, or over any radio or television station, or in any other way similar or dissimilar to the foregoing, an advertisement, announcement, statement or representation of any kind... which... is untrue, deceptive or misleading.
Wis. Stat. Ann. § 100.18(1) (emphasis added). “[Statutory interpretation ‘begins with the language of the statute.’ ” State ex rel. Kalal v. Circuit Court for Dane Cty.,
The Court concludes that Le alleged sufficient facts to maintain his claim under the WDTPA. On the one hand, the statute’s language requires that actionable statements under the WDTPA be “made” in Wisconsin.
Le’s complaint also alleges a common law unjust enrichment claim. (Docket # 1 ¶¶ 71-73). He pleads this claim under Wisconsin law, on behalf of himself and national class of consumers, and, alternatively, under California law, on behalf of himself and a class of California consumers. (Docket # 1 ¶¶ 71-73). Each of these claims will be discussed separately. (See infra, Part. 3.6).
On the one hand, Kohls moves to dismiss Le’s Wisconsin unjust enrichment claim on the grounds that Le’s purchases from Kohls formed “express contracts” between the parties. (Docket # 19 at 22). These “express contracts,” according to Kohls, bar Le’s recovery under the equitable doctrine of unjust enrichment, and thus Le’s claim should be dismissed under Rule 12(b)(6). (Docket # 19 at 22). On the other hand, Le agrees with the principle of law articulated and argued by Kohls, but clarifies that his unjust enrichment claim does not proceed on an “express contract.” (Docket # 24 at 30-31). Rather, Le argues that he brings this unjust enrichment claim in an equitable sense, ie., he is suing off the contract for restitution. (Docket # 24 at 30-31). And, Le argues that even if an express contract were formed when he purchased Kohls’ merchandise, such a contract was voidable in light of Kohls’ deceptive price scheme. (Docket # 24 at 30-31).
The Court concludes that Le’s claim for unjust enrichment can survive a motion to dismiss because Le has alleged that any purchase contracts between himself and Kohls are potentially voidable.
“The elements of an unjust enrichment claim are: (1) conferral of a benefit;] (2) with the knowledge of the party benefitted[;] and (3) under circumstances where it is inequitable to permit the party to retain the benefit without payment.” U.S. ex rel. Roach Concrete, Inc. v. Veteran Pac., JV,
Le alleges that Kohls misrepresented the prices on its merchandise, and that Le would not have purchased (or would have paid less for) Kohls’ products but for being misled about the merchandise’s prices. (See generally Docket # 1). The facts are not sufficiently developed for the Court to be able to opine on the viability of Le’s unjust enrichment claim, because the allegations underlying Le’s claims have not be fully fleshed out. On the one hand, discovery may reveal that Le’s purchase transactions with Kohls may have indeed formed valid and enforceable contracts between the parties, thereby precluding Le’s claim under Wisconsin law. Carroll,
Kohls also argues that Le’s claims should be dismissed because: (1) Le did not allege that he “justifiably” relied on any misrepresentations from Kohls; and (2) Le did not allege that he “in fact voided the contracts.” (Docket # 26 at 21). These arguments are not persuasive. First, Le did allege that he and other consumers “reasonably reified]” on Kohls’ deceptive advertising scheme. (Docket # 1 ¶¶ 23, 31, 113). Though, it is true that Le did not insert the word “justifiable” into the complaint, the Court refuses to adopt such a strained reading of the pleading. Cf. Van Dorn v. Peters, No. 14-CV-03920,
In sum, because Le’s underlying purchase transactions may be voidable, the Court declines to dismiss Le’s unjust enrichment claim at this juncture. See In re JPMorgan Chase Bank Home Equity Line of Credit Litig.,
3.6 Unjust Enrichment under California Law
Alternatively, Le seeks to pursue his claim for unjust enrichment on behalf of himself and a California Class under California law. (Docket # 1 ¶¶ 71-73). Kohls argues that a free-standing unjust enrichment claim is not recognized under California law. (Docket # 19 at 20) (citing Levine v. Blue Shield of Cal,
Under the reasoning of the Ninth Circuit’s recent opinion in Astiana v. Hain Celestial Grp, Inc., the Court finds that Le’s claim for unjust enrichment under California common law can proceed at this pleading stage.
Several federal district courts “have permitted what were previously considered to be superfluous unjust enrichment claims to survive the pleading stage in light of the Ninth Circuit’s decision in Astiana.” Valencia v. Volkswagen Group of America, Inc.,
In keeping with the Ninth Circuit’s interpretation of California law, the Court concludes that, at this stage, to the extent Le alleges an unjust enrichment/quasi contract claim under California law, the Court will allow it to proceed.
4. CONCLUSION
In conclusion, the Court finds that Kohls’ motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) must be denied in its entirety. (Docket # 18). As explained more fully above, Le: (1) may be entitled to restitution under the UCL and CLRA; (2) has constitutional standing to pursue each of his claims; (3) alleged sufficient facts to show that the purportedly deceptive statements made by Kohls were indeed “made” in Wisconsin for the purpose of his WDTPA claim; and (4) pled all that is necessary under Wisconsin and California law for the purpose of his unjust enrichment/quasi contract claim.
Accordingly,
IT IS ORDERED that Kohls’ motion to dismiss (Docket # 18) be and the same is hereby DENIED.
Notes
. The defendants both spell the name of their corporation with an apostrophe, that is, "Kohl's.” See Kohl’s, http://www.kohls.com (last visited Jan. 27, 2016). However, for the purpose of this Order, the Court will refer to the defendants collectively as "Kohls,” without an apostrophe. This will be done with no other purpose than to avoid the Court's grammatical resort to the double genetive. See Possessives and Attributives, The Chicago Manual of Style Online, http://www.chicagomanual ofstyle.org/qanda/data/faq/topics/ PossessivesandAttributives.html (last visited Feb. 2, 2016). ■
. Unless otherwise stated, the Court will draw the relevant facts from Le's complaint. (Dock
. As referenced above, the Court will herein refer to the plaintiff as “Le'' and the defendants collectively as “Kohls.''
. According to Le, beginning in June 2014, and continuing through March 2015, CSS conducted a survey of seven national retail chains and Amazon.com, tracking prices weekly for six to ten big-ticket items from each retailer. (Docket # 1 ¶ 36).
. Restitution is the only form of monetary relief available under the UCL. See Cel-Tech
. Le does not dispute that his complaint fails to allege that he purchased Kohls' merchandise at prices greater than their value. (See generally Docket #1). Thus, if the price-to-value method is the only method by which the Court can calculate Le’s restitution under the UCL and/or CLRA, the Court need not go any further as Le's complaint would surely fail to state a claim under Rule 12(b)(6).
. Kohls also argues in its reply brief that Le's allegation of loss is merely sufficient to show that he standing to sue under the UCL; it does not suffice to show that he is "entitle[d']" to restitution. (Docket # 26 at 13-14) (emphasis in original). This Court acknowledges that standing and entitlement to restitution are indeed two distinct concepts. See Kwikset Corp. v. Superior Court,
. Besides restitution, the UCL also permits recovery in the form of an injunction. See In re Tobacco II Cases,
. Though not argued by the parties in this case, some district courts in the Seventh Circuit have interpreted Payton v. Cnty of Kane,
. For cases ruling that standing existed see: In re Bayer Corp. Combination Aspirin Products Mktg. & Sales Practices Litig.,
.For cases ruling that standing did not exist see: Martin v. LG Elecs. USA, Inc.,
. Kohls’ constitutional standing argument-also applies to all of Le’s non-California claims. (Docket # 19 at 20-21). However, for the reasons discussed above (see supra, Part 3.3-3.4), the Court finds that Le does have
. The WDTPA has been amended numerous times since its inception in 1913. See State v. Automatic Merchandisers of Am., Inc.,
. As referenced above, Le responds to Kohls’ position by arguing that he has statutory