If items are always on sale, are they really on sale at all?
This is the question underlying the plaintiff’s claim in Hennessey v. The Gap, a case in which an Eighth Circuit decision issued yesterday, affirming the dismissal of a consumer class action. The named plaintiff sued the Gap and Old Navy, alleging that sale prices it advertised for products online were deceptive because the stores did not sell a substantial quantity of these products at the “regular” prices listed alongside the sale prices.
The Eighth Circuit affirmed the district court’s determination that the facts alleged did not give rise to a violation of the Missouri Merchandising Practices Act, as the plaintiff did not satisfy the statute’s “ascertainable loss” requirement, since she did not allege that she paid more than the actual value of the items she purchased. The court suggested she could have sued for rescission in a common law fraud action, and did not question whether the plaintiff had adequately alleged the company committed a deceptive practice. The court also affirmed the dismissal of the plaintiff’s unjust enrichment claim on similar grounds.