ORDER
On February 18, 2016, the plaintiffs filed suit, on behalf of themselves and all those similarly situated, against the defendants for purportedly engaging in a nationwide marketing scheme that is untrue, deceptive, and misleading to consumers. (See generally Docket #1). In many respects, this action parallels the allegations set forth in a case that was recently litigated before this Court by a California plaintiff. See Le v. Kohls Dep’t Stores, Inc., No. 15-CV-1171-JPS,
After the defendants (collectively “Kohls”
1. BACKGROUND
Before addressing the merits of the pending motion to dismiss, the Court will first provide an overview of: (1) the parties; (2) the factual background of this case; and (3) the plaintiffs’ claims embodied in the amended complaint.
1.1 The Parties
Plaintiffs Miguel Murillo, Michael Baeh-man, and Bonnie Baehman are citizens of Wisconsin. (Docket #14 ¶¶ 10-12). Each plaintiff claims to have purchased one or more items from various Kohls stores located in the State of Wisconsin at a sale or discount price off of the “regular” or “original” item prices. (Docket #14 ¶¶ 52-71). The plaintiffs further claim to have made these purchases at various times between March of 2015 and December of 2015. (See Docket #14 ¶¶ 52-71) (listing the specific dates, products, and locations in which the plaintiffs purchased the merchandise).
Defendant Kohl’s Corporation is a Wisconsin company with its principal place of business located at N56 W17000 Ridge-wood Drive, Menomonee Falls, Wisconsin. (Docket #14 ¶ 13). Defendant Kohl’s Department Stores, Inc., is a Delaware company with its principal place of business also located at N56 W17000 Ridgewood Drive, Menomonee Falls, Wisconsin. (Docket #14 ¶14). The plaintiffs’ claim that both of the defendants own and operate retail stores in Wisconsin. (Docket #14 ¶ 16). Kohls operates approximately 1,164 department stores in 49 states, including 40 stores in Wisconsin, and an e-commerce website (www.Kohls.com), in which it sells private label, exclusive, and national brand apparel, footwear, accessories, beauty, and home products. (Docket #14 ¶ 18).
1.2 Factual Overview
The plaintiffs claim that consumer fraud is afoot in Kohls stores across the nation. (Docket #14 ¶¶ 1-9, 25-38). More precisely, the plaintiffs allege that Kohls engages in an untrue, deceptive, and misleading marketing practice—both in its brick-and-mortar department stores and on its e-commerce website—that induces consumers to buy or pay more for merchandise than they would absent the unlawful conduct. (Docket #14 ¶¶ 1-9, 25-38). The fraud, according to the plaintiffs’ theory, plays on a basic consumer motivation: the promise of a good deal. (Docket #14 ¶¶ 1-9, 25-38).
Similar to the allegations made previously before this Court in Le, the plaintiffs claim that Kohls advertises its goods at certain discounts off of “original” or “regular” prices. (Docket #14 ¶¶2, 22-23, 26). According to the plaintiffs, these “original” or “regular” prices, however, are misleading because they do not reflect the actual prices at which the products are routinely, if ever, sold to retail customers. (Docket #14 ¶¶ 2, 22-23, 26). Instead, the plaintiffs claim that Kohls’ “regular” prices are either inflated or fabricated. (Docket #14 ¶¶2, 22-31). The amended complaint explains that the problem with this practice is that the inflated and/or fabricated prices advertised by Kohls give consumers the
Although the plaintiffs claimed to have purchased various items—including, but not limited to, juniors', boys’ and women’s clothing—at various Kohls stores in Wisconsin, they claim that Kohls operates its deceptive price comparison scheme on a national scale. (Docket #14 ¶¶ 29-30, 52-71). Further, they claim that this scheme “has been uniformly implemented as part of a concerted, years long, pervasive campaign to mislead consumers that is ongoing and continues to this day.” (Docket #14 ¶ 124). The plaintiffs claim that this national scheme is effectuated by the “prominent” display of “regular” and “sale” prices on Kohls’ in-store merchandise tags, online advertisements, and in-store price displays, such as that which is pictured below. (See Figure 1; Docket #14 ¶¶ 30, 46).
[[Image here]]
Figure 1: Sample Deceptive Price Display (Docket #14 ¶ 46)
The plaintiffs claim that Kohls also furthers this scheme by displaying false price comparisons on product receipts. (Docket #14 ¶ 30).
1.3 The Plaintiffs’ Claims
On April 5, 2016, the plaintiffs filed an amended complaint alleging a putative class action on behalf of two potential classes, a Wisconsin Class and a Nation
1. A statutory violation of the Wisconsin Deceptive Trade Practices Act, Wis. Stat. § 100.18 (“WDTPA”) (Docket #14 ¶¶ 90-98), on behalf of a nationwide class, or, in the alternative, a Wisconsin class;
2. A Wisconsin common law unjust enrichment claim on behalf of a nationwide class, or, in the alternative, a Wisconsin class (Docket #14 ¶¶ 99-106);
3. A multi-state consumer fraud claim (Docket #14 ¶¶ 107-121); and
4. A claim for declaratory and injunctive relief pursuant to 28 U.S.C. § 2201 et seq. (Docket #14 ¶¶ 122-129).
Kohls has moved to dismiss all of these claims pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). (Docket #17). In support of its motion, Kohls argues that:
1. The plaintiffs’ WDTPA claim must be dismissed because it: (i) is based, in part, on representations that are not actionable; and (ii) is not pled with sufficient particularity;
2. The plaintiffs cannot maintain a cause of action for unjust enrichment because they have not alleged a common law intentional misrepresentation claim;
3. The plaintiffs lack statutory standing to pursue their multi-state claim, which is also improperly pled; and
4. The plaintiffs’ claim under the Declaratory Judgment Act is not justiciable, and, in any case, the Court should decline to exercise its discretion to hear the claim because it is duplica-tive.
(See generally Docket #18). The plaintiffs oppose all of these arguments. (Docket #26).
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.,
With respect to challenges made to subject matter jurisdiction, “[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 all of the plaintiffs’ claims should be dismissed under Rule 12(b)(1) and/or Rule 12(b)(6). (See Docket #17). The Court will discuss Kohls’ motion on a claim-by-claim basis.
3.1 WDTPA Claim
Kohls launches numerous attacks with respect to the propriety of the plaintiffs’ WDTPA claim pursuant to Rule 12(b)(6). (See generally Docket #18). First, Kohls argues that the plaintiffs’ claim fails as a matter of law because omissions, commercial puffery, post-transaction representations in receipts, and representations that Kohls might have made to third parties are not actionable statements under Section 100.18. (Docket #18 at 9-15). Second, Kohls argues that plaintiffs’ Section 100.18 claim should be dismissed because it is not pled with sufficient particularity under Federal Rule of Civil Procedure 9(b). (Docket #18 at 15-21).
3.1.1 Omissions, Puffery, Post-Transaction Representations and Representations to Third Parties
The “[Wisconsin Supreme] Court and the [Wisconsin] court of appeals have made clear that the purpose of § 100.18 is to deter sellers from making false and misleading representations in order to protect the public.” Novell v. Migliaccio,
[n]o.. .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... an advertisement, announcement, statement or representation of any kind.. .which.. .is untrue, deceptive or misleading.
Wis. Stat. § 100.18(1). “Wisconsin courts divide a claim under Wis. Stat. § 100.18(1) into three elements: (1) the defendant made a representation to ‘the public’ with the intent to induce an obligation, (2) the representation was ‘untrue, deceptive or misleading,’ and (3) the representation materially caused a pecuniary loss to the plaintiff.” Spacesaver Corp. v. Marvel Grp., Inc.,
Though Section 100.18 is “extremely broad,” MBS-Certified Pub. Accountants, LLC v. Wisconsin Bell Inc.,
Here, Kohls claims that the plaintiffs’ complaint must be dismissed because the plaintiffs, in part, alleged that Kohls failed to disclose certain price-related information. (Docket #18 at 10) (citing Docket #14 ¶¶ 47, 54) (“Defendants failed to disclose to Plaintiffs.. .that their advertised ‘regular’ and/or ‘original’ reference prices were not true or bona fide regular or original prices.”). Put another way, Kohls argues that the plaintiffs’ amended complaint must be dismissed because it, at least in part, ties Kohls’ liability to certain price-related omissions that Kohls purportedly made to its customers. This argument, however, misunderstands the gravamen of the plaintiffs’ amended complaint, which alleges that Kohls affirmatively represents false and misleading “regular” prices on its merchandise and in its advertisements. (Docket #14 ¶¶ 1-9, 22-31).
In a case such as this, omissions related to the goods’ actual prices are not actionable, but are indeed relevant. As recognized by the Wisconsin Court of Appeals, the misrepresentation/omission interplay presents two sides of the same coin. See Christense v. TDS Metrocom LLC,
In addition, Kohls claims that various allegations made by the plaintiffs cannot support a Section 100.18 claim because the statements constitute mere “puffery,” which is not actionable under the WDTPA. (Docket #18 at 13) (citing Docket #14 ¶¶ 8, 21, 23, 25, 26, 29, 72, 96, 104, 113) (describing allegations that Kohls: (1) “prominently touts its ‘incredible savings’ in its public statements”; (2) represents that it offers “huge discounts],” “meaningful discounts],” “significant discounts],” “significant savings”; and (3) offers products sold at “substantially higher” or “far higher” prices than at other places). “Puf-fery has been defined as ‘the exaggerations reasonably to be expected of a seller
Again, however, Kohls’ argument misses the mark. Viewed in isolation, Kohls’ statements about “incredible savings” and the like may indeed constitute “puffery.” See, e.g., id. at ¶ 44 (concluding that the defendants’ representations that its motorcycles were of “premium quality” and a “masterpiece” were non-actionable). Elsewhere in the amended complaint, however, the plaintiffs make clear that the allegedly false “regular” prices that Kohls advertises, and the comparison of those “regular” prices to Kohls’ “sale” prices, comprise the core of the actionable misrepresentations in this case. (Docket #14 ¶¶ 1-9, 22-31). To be sure, Kohls cannot be expected to exempt itself from standard reliance on commercial puff. But, taken as a whole, the Court concludes that the plaintiffs’ amended complaint alleges sufficient representations of fact made by Kohls’ to support the WDTPA claim. Cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
Beyond the requirement that a defendant make affirmative representations that go beyond mere puffery in order to maintain an action under Section 100.18, the plaintiff must also be a member of the “public” in order to sue under the statute. See Fricano v. Bank of Am. NA,
The Court rejects Kohls’ argument that the plaintiffs fail to state a WDTPA claim because they were not members of the “public” at the time the alleged representations were made. In the amended complaint, the plaintiffs claim that they were induced to buy Kohls’ merchandise based on illusory sales. (Docket #14 ¶¶ 1, 23, 29). Further, the plaintiffs claim that Kohls’ deceptive advertising scheme was communicated to consumers such as themselves within the context of in-store price displays and price tags which “prominently” displayed Kohls’ “regular” and “sale” prices. (Docket #14 ¶¶ 1, 23, 28, 30, 45-46, 50, 52, 53, 56, 62, 68). Accordingly, the plaintiffs alleged inducement to buy these products, or pay more for these products, occurred prior to purchase, by virtue of the plaintiffs’ viewing of Kohls’ in-store advertising and/or price tags. (See Docket #14 ¶ 50) (“Plaintiffs were each confronted with.. .the price tags.. .on the items they purchased and the in-store displays from Defendants, which were falsely represented to be ‘regular’ or ‘original’ prices. Plaintiffs reasonably believed... that the ‘regular’ or ‘original’ price represented the price at which each respective item regularly sold at Kohl’s and that they were receiving a significant discount....”).
Finally, Kohls claims that, to the extent the plaintiffs rely on representations that Kohls made to third parties, those representations cannot sustain the WDTPA claim, (Docket #18 at 14-15). In support of this argument, Kohls cites to one, nonbinding district court opinion in which the court concluded that Section “100.18 does not provide a cause of action for misrepresentations made to non-parties.” (Docket #18 at 15). Even accepting Kohls’ legal argument as true, the Court cannot agree that the amended complaint’s citation representations made to third parties—as reflected in a consumer marketing study— fatally undermines the WDTPA claim. The plaintiffs here have sufficiently alleged: (1) that Kohls made representations of fact regarding its “regular” prices to the plaintiffs and the public both in-store and online with the intent to induce purchasing behavior; (2) that Kohls’ representations about its “regular” prices and, therefore, its “sales,” were untrue, deceptive, and misleading; and (3) that the alleged price comparison representations caused a pecuniary loss
In sum, the plaintiffs’ allegations that Kohls made affirmative and false representations of fact regarding its “regular” and “original” prices to plaintiffs and other national consumers prior to the purchase of goods are actionable statements that support the WDTPA claim.
3.1.2 Particularity
Kohls also argues that the plaintiffs’ WDTPA claim fails to satisfy the pleading requirements of Federal Rule of Civil Procedure 9(b). According to Rule 9, “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” “The particularity requirement of Rule 9(b) is designed to discourage a ‘sue first, ask questions later’ philosophy.” Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co.,
The Court concludes that the plaintiffs have alleged all that is required of them at the pleading stage, even under the more rigorous standard set forth in Rule 9(b). See, e.g., Am. Orthodontics Corp. v. Epicor Software Corp.,
In addition, Kohls argues that the amended complaint fails to meet Rule 9(b)’s heightened pleading standard because it “lumps” the defendants together and fails to notify them of the manner in which they participated in the alleged fraud. (Docket #18 at 16-19). As a matter of law, Kohls is correct that plaintiffs who allege fraud claims “must ‘plead sufficient facts to notify each defendant of his alleged participation in the scheme.’ ” United States v. Sanford-Brown, Ltd.,
Contrary to Kohls’ assertion, however, the Court finds that the plaintiffs: (1) have sufficiently alleged both of the defendants’ roles in the fraud; and (2) have not simply named the defendants based on their alleged status as related entities. First, in terms of their participation, the plaintiffs allege that both of the defendants own and operate retail stores in which the deceptive conduct occurs; thus, from the face of the amended complaint, it appears that both of the defendants are being sued for “plac[ing] before the public” misrepresentations related to merchandise prices. (Docket #14 ¶ 16). Second, the amended complaint does not allege that fraud committed by one of the defendants somehow imputes to the other based on their relationship to each other. Indeed, the extent to which the defendants are related and/or have varying degrees of control over the allegedly deceptive marketing scheme are facts which will be fleshed out during discovery.
3.2 Unjust Enrichment Claim
Next, Kohls argues that the plaintiffs unjust enrichment claim must be dismissed for failure to state a claim pursuant to Rule 12(b)(6). (Docket #18 at 21-23). “The elements of an unjust enrichment claim are: (1) conferral of a benefit[;] (2) with the knowledge of the party benefít-ted[;] 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,
However, as both parties concede, where there is not an underlying, enforceable contract between the parties, an unjust enrichment claim may lie. Cf. Archdiocese of Milwaukee v. Doe,
On the one hand, the Court agrees with the defendants that, insofar as Kohls and the plaintiffs have formed enforceable contracts with regard to the purchase of the goods in question, no common law unjust enrichment claim will lie. See Lindquist Ford, Inc. v. Middleton Motors, Inc.,
“Under Wisconsin principles of equity, a party induced to enter into a contract by the other party’s misrepresentation may unilaterally rescind the contract if three essential elements are shown: (1) a misrepresentation of fact; (2) that wa's material or fraudulent; (8) upon which the recipient justifiably relied.” CMFG Life Ins. Co. v. BBS See. Inc., No. 12-CV-037-WMC,
In support of its position, Kohls cites to the portion of the Court of Appeals’ opinion in which it discussed remedies under Section 100.18. (Docket #18 at 22-23). Based on the plain meaning of Section 100.18 and the purpose of the statute, the court concluded that “a ‘pecuniary loss’ can include monetary remedies like the cost of repair or diminution in value and may also include the possibility of a full refund of the purchase price. A ‘pecuniary loss’ does not, however, include rescission, as a non-monetary remedy.” Id. at 616,
Contrary to Kohls’ position, the Wisconsin Court of Appeals in Mueller did not state that plaintiffs must claim intentional misrepresentation in order to be entitled to recision. Rather, as previously explained by the Wisconsin Supreme Court, “where grounds for avoidance of a contract exist, the aggrieved party must elect between rescinding the contract, or affirming the contract and seeking damages.” Digicorp, Inc. v. Ameritech Corp.,
Therefore, at this juncture of the litigation, the Court finds the most prudent course of action is to permit the plaintiffs’ equitable unjust enrichment claim to proceed based on the plaintiffs’ allegations that any purchase contracts between them and Kohls may be unenforcea
3.3 Multi-State Consumer Claim
The plaintiffs’ third claim for relief is a count which they bring “individually under the laws of Wisconsin and on behalf of all other persons Who purchased merchandise in states having similar laws regarding consumer fraud and deceptive trade practices.” (Docket #14 ¶ 108). They caption this claim as one brought for “[violations of the [consumer [f]raud [l]aws on [bjehalf of the [cjlasses in [sjtates with [similar [l]aws.” (Docket #14 at 26). Kohls argues the plaintiffs do not have statutory standing to bring this claim because they do not fall within the “zone of interests” of other states’ statutes. (Docket #18 at 24). Thus, according to Kohls, because the plaintiffs “do not even attempt to state a claim as individuals under any other law,” they should not be able to sue under other states’ laws on behalf of other putative class members. (Docket #18 at 26).
The Seventh Circuit has explained that the term “statutory standing” has “confusing usage” in the case law. Kohen v. Pac. Inv. Mgmt. Co. LLC,
While Kohls’ position may be relevant at a later date, the Court finds the statutory standing argument premature. See Payton v. Cty. of Kane,
Contrary to Kohls’ reading of the amended complaint, the plain language of the plaintiffs’ third claim states that it is one that the plaintiffs are bringing “individually under the laws of Wisconsin and on behalf of’ a putative class of persons living in other states that were similarly injured. (Docket #14 ¶ 108) (emphasis added). In other words, the Court does not view the plaintiffs’ individual claims to be ones which they are asserting under the
The allegations in the amended complaint further detail the plaintiffs’ assertion that they are purportedly able to represent individuals who have been similarly injured by Kohls’ allegedly fraudulent marketing scheme. (Docket #14 ¶ 77-89, 113-121); see also In re Grand Theft Auto Video Game Consumer Litig., No. 06-MD-1739,
At this juncture, the Court has not had an occasion to determine which law will apply to the plaintiffs’ third claim for relief. For now, the Court is satisfied that plaintiffs have standing and have properly pled their individual claims under Wisconsin law and on behalf of a putative class of persons who have been similarly injured.
Finally, Kohls argues that this Court should dismiss the plaintiffs’ request for relief under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., because the plaintiffs failed to allege facts showing that there is an “actual controversy” to sustain the claim. (Docket #18 at 7-8). In addition, Kohls argues that the Court should decline to exercise its discretion to hear this claim because the WDTPA claim would provide adequate relief to address the harms alleged. (Docket #18 at 8-9). The Court disagrees with Kohls and finds that a justicia-ble controversy between the parties exists in this case, and the Court will permit the plaintiffs to proceed past the pleading stage on their declaratory judgment claim.
“The Declaratory Judgment Act gives courts of the United States discretionary power to issue declarations regarding ‘the rights and other legal relations of any interested party seeking such declaration.’ ” Deveraux v. City of Chicago,
The Court has no doubt that this case presents an actual controversy for the purpose of maintaining an action under 28 U.S.C. § 2201. Here, even though the plaintiffs may not be the paradigmatic defendants in a traditional coercive suit, seeking, for example, to preempt an impending law suit, the plaintiffs claim that they have been, and continue to be, subject to a deceptive marketing scheme. (Docket #14 ¶¶ 1-9, 21-31, 45-76). The plaintiffs claim that the defendants have “uniformly implemented” this scheme “as part of a concerted, years long, pervasive campaign to mislead consumers that is ongoing and continues to this day.” (Docket #14 ¶¶ 30, 124). The nature of the alleged fraud is Kohls’ publication of fictitious and/or inflated “regular” or “original” prices on merchandise, which causes consumers to believe they are getting a better “deal” than they actually are in reality. (Docket #14 ¶¶ 1-9, 21-31, 45-76). Further, the plaintiffs claim that the deceptive price scheme has harmed, and continues to harm, themselves and consumers around the nation by inducing them to buy products, or pay more for products, that they would not buy, or pay as much for, absent the illusory “sales.” (Docket #14 ¶¶ 1-9, 21-31, 45-76). In light of these allegations regarding Kohls’ longstanding, continuous, and pervasive price comparison strategies, the Court concludes the amended complaint demonstrates that the parties in this case have adverse legal interests and that the plaintiffs have pled a concrete, justicia-ble controversy.
(1) Whether the judgment would settle the controversy;
(2) Whether the declaratory judgment action would serve a useful purpose in clarifying the legal relations at issue;
(3) Whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race for res judicata”;
(4) Whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach on state jurisdiction, and
(5) Whether there is an alternative remedy that is better or more effective.
Id. (citing Nationwide Mut. Fire Ins. Co. v. Willenbrink,
While the rendition of declaratory relief may be properly declined in circumstances where alternative remedies exist, the Court finds the most prudent path is to deny Kohls’ motion to dismiss the declaratory judgment claim. Here, declaratory and/or injunctive relief would indeed: (1) settle the parties’ ongoing/future dispute regarding Kohls’ allegedly deceptive marketing practices; and (2) clarify for the parties and putative class members the legality of Kohls’ practices. See id. There is no evidence in this case of “procedural fencing”; nor is there any allegation that deciding this case would upset the careful balance between state and federal jurisdiction. See id.
Rather, as ]j£ohls concedes, “[b]y the Declaratory Judgment Act, Congress sought to place a remedial arrow in the district court’s quiver; it created an opportunity, rather than a duty, to grant a new form of relief to qualifying claims.” Wilton v. Seven Falls Co.,
4. CONCLUSION
For the reasons stated herein, the Court concludes that Kohls’ motion to dismiss (Docket #17) should be denied in its entirety. The plaintiffs: (1) adequately pled then' WDTPA claim; (2) may proceed on their unjust enrichment theory given the potentially unenforceable nature of their purchase contracts; (3) at this time, have statutory standing to pursue their multi-state claim; and (4) maintain an “actual” controversy with the defendants for the purpose of the declaratory judgment claim. Though certain matters related to statutory standing and the exercise of the Court’s discretion to grant declaratory relief may be appropriately reevaluated at a later date, the Court is satisfied, at this juncture, that Kohls’ motion should be denied.
Accordingly,
IT IS ORDERED that the defendants’ motion to dismiss the amended complaint (Docket #17) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that the defendants’ motion to dismiss the original complaint (Docket #12) be and the same is hereby DENIED as moot.
Notes
. The plaintiffs suggest that this Court’s ruling on the defendants’ motion to dismiss in Le has preclusive effect over certain issues raised herein. (Docket #26 at 5). However, the preclusion doctrine does not apply because the issues litigated in Le were not "determined by a valid and final judgment.” See Bobby v. Bies,
. The defendants both spell the name of their corporations with an apostrophe, that is, "Kohl's.” (See Docket #14 at 1); see also KOHL’S, http://www.kohls.com (last visited June 23, 2016). For grammatical simplicity, the Court will refer to the defendants collectively as "Kohls,” without an apostrophe.
. Unless otherwise stated, the Court will draw the relevant facts from the plaintiffs’ amended complaint. (See Docket #14); see also Rosenblum v. Travelbyus.com Ltd.,
. In their reply, Kohls argues against the precedential value of the Court of Appeals’ decision in Christense. However, contrary to Kohls' position, this Court does not view Christense as “overruling” Tietsworth. Though the passage quoted above is certainly dicta, this Court interprets the language as merely expounding upon the now well-accepted rule from Tietsworth that omissions, standing on their own, are not sufficient to support a WDTPA claim.
. Again, this pecuniary loss resulted because the plaintiffs claim that they: (1) would not have purchased Kohls' goods absent the fraud; and/or (2) would have paid less for Kohls' goods had they been apprised of the actual item prices. (Docket #14 ¶¶ 8-9, 31, 55).
. Kohls also argues that the WDTPA claim fails under Rule 9(b) because it does not allege whether the plaintiffs relied on “original” prices or "sale” prices when purchasing merchandise. (Docket #18 at 19). However, Kohls supplies the Court with no authority to support the proposition that such a detail needs to be alleged in a false price comparison case. Based on the Court's reading of Section 100.18, the plaintiffs’ reliance on one price or the other may be irrelevant, so long as they relied on advertisements in which allegedly false misrepresentations regarding the "original” prices of the merchandise appeared. See Wis. Stat. § 100.18. As detailed above, the amended complaint sufficiently alleges that Kohls published false and/or inflated prices when advertising its goods; this then purportedly led customers to believe that the "sale” prices at which they purchased the goods were more significant reductions that they were in reality. (Docket #14 ¶¶ 1-9, 21-31, 45-51). Whether or not the plaintiffs allegedly relied on the “original” price or the
. Kohls also attacks a "catchall” paragraph that the plaintiffs inserted in the amended complaint regarding "other purchases” that each of them made at Kohls. (Docket #18 at 20-21). However, as the Court has found that the amended complaint’s description of the fraud—including allegations of specific instances when the plaintiffs shopped at Kohls—satisfies Rule 9(b), the Court need not rely on this "catchall paragraph.” Kohls’ argument is thus irrelevant.
. The plaintiffs argue in their opposition brief that: (1) Kohls' disclosure statement; and (2) Kohls’ answer to the complaint in Le, identify Kohls Corporation as being the parent of Kohls Department Stores. (Docket #26 at 10). However, as courts are confined to the operative pleading and attachments thereto for the purpose of a Rule 12(b)(6) motion, the Court may not consider these extraneous materials. See Rosenblum,
. Kohls also: (1) compares the original complaint to the amended complaint; and (2) incorporates the plaintiffs' discovery materials in its reply brief. (Docket #30 at 6-7). As
. The Court agrees with Kohls that the amended complaint's reference to "the Classes” is not the most clear convention; however, the plaintiffs do refer to “proposed Classes as defined below,” which presumably refers to both the "Nationwide Class” and "Wisconsin Class.” (Docket #14 ¶¶ 8, 78-79).
. Kohls’ brief in support of the motion to dismiss also makes a one-sentence reference to the plaintiffs’ purported failure to properly plead claim three under Rule 8 and/or 9. (Docket #18 at 25). The Court disagrees. On the one hand, as discussed at length above, the Court finds that the plaintiffs’ individual fraud claims are properly pled under Wisconsin law. (See supra, Part 3.1.2). The elements of other state law claims, on the other hand, may ultimately not be relevant—depending on the outcome of the Rule 23 certification process. At this stage, the Court concludes that the plaintiffs properly pled Wisconsin law claims, in combination with the allegations regarding Kohls’ nationwide scheme, satisfy federal pleading requirements for the purpose of claim three.
. In a footnote of its reply brief, Kohls also argues that the plaintiffs' third claim for relief under Wisconsin law is redundant. (Docket #30 at 25 n.8). As this argument was not presented in Kohls' opening brief, the Court will deem it waived. See Harper v. Vigilant Ins. Co.,
. Because the Court will address any potential tension between state law and the federal rules at the time of certification, the Court need not opine on the effect of the Supreme Court's disjointed opinion in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.,
, Kohls also argues, albeit only in a footnote, that for the same reasons the plaintiffs do not present a justiciable controversy, they lack Article III standing. (Docket #18 at 8 n.4). However, as discussed above, the Court concludes that both the immediate and ongoing nature of the alleged harms in this case present both past and ongoing injuries of a sufficiently concrete nature that this Court can remedy. See Schirmer v. Nagode, 621 F.3d 581, 588 (7th Cir.2010) (explaining that while “an isolated” ordinance violation was not sufficient to confer standing, “if we had a record showing a persistent pattern of similar police misconduct” the plaintiffs “might be able to