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Michelle Cortez Gomez v. Kohl's Corporation · редакция 1 → 2 · зафиксировано 2026-09-17 03:42 · +7 −7 строк

## In the
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## ARGUED SEPTEMBER 16,2025—DECIDED AUGUST 3,2026
## ARGUED SEPTEMBER 16, 2025 — DECIDED AUGUST 3, 2026
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No. 24-2188 and sometimes retailers cross it in their eagerness to make a sale.
One of these potentially problematic advertising tactics is price comparison advertising. Put simply, this strategy aims to convince the consumer that they are getting a deal by advertising the product as on sale from a fictitious, higher retail or suggested price at which the product is never (or rarely) sold. Seeking to protect consumers, the Federal Trade Commission (FTC) began regulating price comparison advertising in the 1960s. See16 C.F.R. § 233.1(a). According to FTC regulations promulgated nearly 60 years ago:
One of these potentially problematic advertising tactics is price comparison advertising. Put simply, this strategy aims to convince the consumer that they are getting a deal by advertising the product as on sale from a fictitious, higher retail or suggested price at which the product is never (or rarely) sold. Seeking to protect consumers, the Federal Trade Commission (FTC) began regulating price comparison advertising in the 1960s. See 16 C.F.R. § 233.1(a). According to FTC regulations promulgated nearly 60 years ago:
Where the former price is genuine, the bargain being advertised is a true one. If, on the other hand, the former price being advertised is not bona fide but fictitious—for example, where an artificial, inflated price was established for the purpose of enabling the subsequent offer of a large reduction—the “bargain” being advertised is a false one; the purchaser is not receiving the unusual value he expects.
Fed. Reg. 15,534 (Nov. 8, 1967), codified at 16 C.F.R. § 233.1(a). Several states soon followed the FTC’s lead by promulgating their own price comparison regulations. See David Adam Friedman, Reconsidering Fictitious Pricing, 100 Minn. L. Rev. 921, 942 (2016).Wisconsin was one of them. It issued administrative regulations that tracked the FTC’s guidance. These regulations recognized the legitimacy of accurate price comparison advertising (that is, advertising where the original price is real) but declared price comparison advertising harmful to the public if based on fictitious or inflated prices:
Fed. Reg. 15,534 (Nov. 8, 1967), codified at 16 C.F.R. § 233.1(a). Several states soon followed the FTC’s lead by promulgating their own price comparison regulations. See David Adam Friedman, Reconsidering Fictitious Pricing, 100 Minn. L. Rev. 921, 942 (2016). Wisconsin was one of them. It issued administrative regulations that tracked the FTC’s guidance. These regulations recognized the legitimacy of accurate price comparison advertising (that is, advertising where the original price is real) but declared price comparison advertising harmful to the public if based on fictitious or inflated prices:
No. 24-2188
Wis. Admin. Code, Department of Agriculture, Trade and Consumer Protection § 124.01. As relevant here, § 124 permits price comparison advertising only if the claimed regular price is either: (a) “a price at which such property or services were actually sold by the seller in the last 90 days immediately preceding the date [of the advertisement]” or (b) “a price at which such property or services were actually sold by the seller … and the advertisement discloses with the price comparison the date, time or seasonal period when such sales were made.”
A consumer aggrieved by a violation of § 124 can bring a claim under § 100.20 of the WUTPA, which provides double damages, costs, and attorneys’ fees to “[a]ny person suffering pecuniary loss because of” a violation of Wisconsin’s consumer protection regulations. Wis. Stat. Ann.§ 100.20(5); see
A consumer aggrieved by a violation of § 124 can bring a claim under § 100.20 of the WUTPA, which provides double damages, costs, and attorneys’ fees to “[a]ny person suffering pecuniary loss because of” a violation of Wisconsin’s consumer protection regulations. Wis. Stat. Ann. § 100.20(5); see
No. 24-2188 alsoWis. Admin Code§ 124 editor’s note (“A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under s. 100.20(5), Stats.”).
No. 24-2188 also Wis. Admin Code § 124 editor’s note (“A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under s. 100.20(5), Stats.”).
B
Cortez alleges that, while browsing the Kohl’s website in May 2023, she bought a portable speaker, among other items. The speaker was advertised as on sale for $99.99, $30 off its regular price of $129.99. But Kohl’s had never sold that speaker for its regular price before Cortez bought it. And during the three months after her purchase, Kohl’s had offered the sale price nearly 75% of the time. So, although Cortez thought she was paying $99.99 for a speaker regularly priced at $129.99, in reality she was paying $99.99 for a speaker that Kohl’s regularly sold only at $99.99.Cortez alleges that the advertisements for the speaker violated § 124 because Kohl’s did not sell it for the regular price in the 90 days immediately preceding her purchase. Cortez maintains that she would not have bought the speaker had she known it was not actually worth the $129.99 regular price.
Cortez alleges that, while browsing the Kohl’s website in May 2023, she bought a portable speaker, among other items. The speaker was advertised as on sale for $99.99, $30 off its regular price of $129.99. But Kohl’s had never sold that speaker for its regular price before Cortez bought it. And during the three months after her purchase, Kohl’s had offered the sale price nearly 75% of the time. So, although Cortez thought she was paying $99.99 for a speaker regularly priced at $129.99, in reality she was paying $99.99 for a speaker that Kohl’s regularly sold only at $99.99. Cortez alleges that the advertisements for the speaker violated § 124 because Kohl’s did not sell it for the regular price in the 90 days immediately preceding her purchase. Cortez maintains that she would not have bought the speaker had she known it was not actually worth the $129.99 regular price.
Cortez sued Kohl’s under the WUTPA on grounds that Kohl’s price comparison advertising practices violated § 124. Cortez brought her suit on behalf of a proposed class of all persons in the United States who “purchased from the Kohl’s website … one or more items advertised with a ‘sale,’ ‘clearance,’ or percentage off price compared to a higher ‘Original’ or ‘Regular’ price.” Because Cortez asserted only state law claims and the parties lacked complete diversity, Cortez invoked CAFA as a basis for original subject matter jurisdiction. Under CAFA, district courts have jurisdiction over state law class actions if, among other requirements, the amount-in-
Given the split of authority discussed above, we are genuinely uncertain as to whether Cortez (and the class she wants to represent) has alleged a pecuniary loss in this case, and if
No. 24-2188 so, how the court should calculate that loss. This uncertainty is the most important factor in deciding whether we should certify a question, rather than decide it. See Johnson, 142 F.4th at 943. The other factors favoring certification are also met. See Bedford Park, 876 F.3d at 302 (quotation omitted); Finite Resources, Ltd v. DTE Methane Res.,LLC, 44 F.4th 680, 685 (7th Cir. 2022). The Wisconsin Supreme Court hasn’t given a clear direction, and the case concerns a matter of vital public concern, because every Wisconsin retailer who uses price comparison advertising and every consumer who purchases the advertised products has a potential stake. Similarly, retail sales are common, and so the issue is likely to recur. And because the legal certainty doctrine controls this exercise of subject matter jurisdiction (if Cortez hasn’t alleged a pecuniary loss, her suit cannot meet CAFA’s amount-in-controversy requirement), the question presented is outcome determinative.
No. 24-2188 so, how the court should calculate that loss. This uncertainty is the most important factor in deciding whether we should certify a question, rather than decide it. See Johnson, 142 F.4th at 943. The other factors favoring certification are also met. See Bedford Park, 876 F.3d at 302 (quotation omitted); Finite Resources, Ltd v. DTE Methane Res., LLC, 44 F.4th 680, 685 (7th Cir. 2022). The Wisconsin Supreme Court hasn’t given a clear direction, and the case concerns a matter of vital public concern, because every Wisconsin retailer who uses price comparison advertising and every consumer who purchases the advertised products has a potential stake. Similarly, retail sales are common, and so the issue is likely to recur. And because the legal certainty doctrine controls this exercise of subject matter jurisdiction (if Cortez hasn’t alleged a pecuniary loss, her suit cannot meet CAFA’s amount-in-controversy requirement), the question presented is outcome determinative.
We respectfully request that the Wisconsin Supreme Court answer the following certified question:
The Wisconsin Supreme Court’s inquiry should not be limited by our opinion, and we welcome the court’s reframing this question to suit its review. The question is CERTIFIED, and all further proceedings are STAYED while the Wisconsin Supreme Court considers this matter.