Antitrust Law Daily Wrap Up, ADVERTISING—7th Cir.: Kohl’s consumer’s purchase price loss question certified to Wisconsin Supreme Court, (Aug 5, 2026)

By Justin Marcus Smith, J.D.

The Seventh Circuit found nothing on-point about whether a consumer could claim purchase price loss if a retailer induced the purchase by advertising a contrived “sale” price.

On a matter of first impression pertinent to subject matter jurisdiction under the Class Action Fairness Act (CAFA) for a Wisconsin Unfair Trade Practices Act (WUTPA) claim, the U.S. Court of Appeals for the Seventh Circuit certified a question to the Wisconsin Supreme Court about pecuniary loss. The question certified was whether a consumer suffers a pecuniary loss if, as the instant consumer class action complaint alleged, the consumer buys a product falsely advertised as on sale in violation of Wisconsin regulations. The difficulty was that the consumer took the position that she did not need to plead that she did not receive the benefit of her bargain and could instead claim loss in the form of a purchase price the retailer wrongfully induced her to pay. The court analyzed how a recent Wisconsin Supreme Court decision did not provide an unambiguous answer on the instant facts, and, in any event, did not provide a method for calculating damages. The Seventh Circuit reasoned that uncertainty about whether the instant consumer had damages to satisfy the CAFA amount-in-controversy requirement was the most important factor supporting certification. Other factors, including likely recurrence and dispositiveness, also supported certification. The Seventh Circuit certified the question and stayed the matter pending Wisconsin Supreme Court consideration (Gomez v. Kohl’s Corp., No. 24-2188 (7th Cir. Aug. 3, 2026)).

A consumer and other named plaintiffs brought a putative class action against Wisconsin-based retail chain Kohl’s for violation of the Wisconsin Unfair Trade Practices Act (WUTPA), Wis. Stat. Ann. § 100.20. The consumer alleged she would not have bought a portable speaker for a sale price of $99.99, rather than the purported regular price of $129.99, had she known that Kohl’s almost always sold the speaker at the $99.99 sale price.

The consumer invoked the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d), as the basis for subject matter jurisdiction, but the district court dismissed the complaint under Fed. R. Civ. P. 12(b)(1). The court found the consumer could not allege damages in excess of $5 million to meet the amount-in-controversy threshold for CAFA jurisdiction. The district court reasoned that Wisconsin law did not provide for damages because the consumer did not allege the speaker she bought was defective or worth less than the $99.99 putative “sale” price she paid. Essentially, the district court ruled it was legally impossible for the consumer to meet the CAFA amount-in-controversy requirement.

The Seventh Circuit noted the line between legitimate enticement and improper deception can be fuzzy. There was no Wisconsin law on point. The court further noted that Wisconsin is one of the states that enacted a consumer regulation, Wis. Admin. Code, Department of Agriculture, Trade and Consumer Protection § 124.01, that tracks the 60-year-old FTC price comparison regulation codified at 16 C.F.R. § 233.1(a). Both regulations recognize the legitimacy of accurate price comparison advertising but declare the practice harmful if fictitious. The Wisconsin regulation defined the regular price as either the price actually charged customers for the last 90 days or during some other time period as disclosed to consumers. Consumers who perceive a violation of § 124 can bring a claim under WUTPA § 100.20. The alleged problem here was that the “sale” price of the speaker was arguably the regular price.

A recent Wisconsin Supreme Court decision, Koble Invs. v. Marquardt, 35 N.W.3d 488 (Wis. 2026), suggested two separate routes for establishing pecuniary loss. One was wrongful inducement to pay money. The other was not receiving the benefit of a bargain. The Seventh Circuit said another way of interpreting Koble was that the consumer must prove both that she did not receive the benefit of her bargain and that a WUTPA violation caused that loss. Koble was also silent on how to calculate loss.

The instant consumer took the position that she did not need to claim that she did not receive the benefit of her bargain and could instead claim loss in the form of a purchase price the retailer wrongfully induced her to pay. The Seventh Circuit acknowledged that three Wisconsin appellate decisions appeared to support that position, but they did not do so in the context of § 124 and “false price comparison advertising.” In any event, the court in each case held that damages were not limited to a benefit of the bargain measure. In other words, a plaintiff wrongfully induced to pay money suffers pecuniary loss in the form of the purchase price potentially offset by value received.

However, the Seventh Circuit also found Wisconsin Court of Appeals authority in support of a benefit of the bargain requirement. In that case, pecuniary loss could be either product purchase price or benefit of the bargain damages, depending on proof. The Seventh Circuit also examined federal district court decisions, including one that interpreted an Illinois statute to support a benefit of the bargain requirement congruent with the retailer’s position.

All cases considered, the Seventh Circuit said it was left with a “close call” on split authority about an important Wisconsin law question and even less guidance on how to calculate the consumer’s loss, assuming she had one. The Seventh Circuit questioned whether the consumer would be entitled to keep the speaker and receive a full refund, just the refund, or the difference between the advertised price and the price the consumer paid.

The Seventh Circuit said it will sometimes certify a question to a state’s highest court based on several factors, and it may even do so sua sponte. Given the split of authority here, the Seventh Circuit said it was genuinely uncertain whether the consumer alleged a pecuniary loss in this case. That uncertainty was the most important factor supporting certification. Among the other factors, the Wisconsin Supreme Court had not given clear direction; the case was about a matter of vital public concern because every Wisconsin retailer and consumer had a potential stake in the outcome; the issue was likely to recur; and because the legal certainty doctrine about the CAFA amount-in-controversy requirement controlled subject matter jurisdiction, the answer to the question of damages would determine the outcome of the case.

The Seventh Circuit certified the question and stayed the matter pending a response from the Wisconsin Supreme Court.

The Case is No. 24-2188.

Judge: Per Curiam.

Attorneys: Martin Woodward (Kitner Woodward PLLC) for Michelle Cortez Gomez. Lauri A. Mazzuchetti (Kelley Drye & Warren LLP) for Kohl's Corp.

Companies: Kohl's Corp.

Cases: Advertising StateUnfairTradePractices IllinoisNews IndianaNews WisconsinNews