No. 22-3187 ___________________________

Jill Hennessey, individually and on behalf of all others similarly situated

lllllllllllllllllllllPlaintiff - Appellant

v.

The Gap, Inc.; Old Navy, LLC

lllllllllllllllllllllDefendants - Appellees ____________

Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________

Submitted: September 21, 2023 Filed: November 14, 2023 ____________ Before LOKEN, GRUENDER, and BENTON, Circuit Judges. ____________ LOKEN, Circuit Judge.

Retail customer Jill Hennessey brought this putative class action under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2)(A), against clothing retailers The Gap, Inc. and its wholly-owned subsidiary, Old Navy, LLC (“Defendants”). Hennessey alleges that she purchased numerous products at Old Navy stores and on line at discount prices that were deceptively advertised because defendants did not sell a substantial quantity of these products at the advertised “regular” prices prior to selling them at the advertised “sale” prices. She seeks class-wide compensatory damages under the Missouri Merchandising Practices Act (“MMPA”), Mo. Rev. Stat. § 407.025, “measured by the benefit of the bargain that Defendants represented” but Hennessey and members of the Class did not receive, and equitable relief to remedy defendants’ unjust enrichment.

Before a class was certified, the district court1 granted Defendants’ motion to dismiss Hennessey’s Amended Complaint with prejudice, concluding: (i) “[b]ecause the allegations in the Amended Complaint fail to establish that the actual market values of the products that Plaintiff received were lower than represented values of those products, Plaintiff fails to allege an ascertainable loss and consequently fails to state an MMPA claim upon which relief may be granted,” and (ii) “[n]othing in the Complaint supports a finding that it would be inequitable for Defendants to retain the money Plaintiff paid for the products she purchased. Thus, Plaintiff [Hennessey] fails to state an unjust enrichment claim upon which relief may be granted.” Hennessey v. Gap, Inc., No. 4:19-cv-01867, Memorandum and Order, 2022 WL 4447399 at *7-8 (E.D. Mo. Sept. 23, 2022). Hennessey appeals. Reviewing the grant of a motion to dismiss de novo, we affirm. See U.S. ex rel. Raynor v. Nat’l Rural Util. Co-op. Fin. Corp., 690 F.3d 951, 955 (8th Cir. 2012) (standard of review).

I. Background

The factual background of this dispute is succinctly summarized, with accurate citations to the Amended Complaint, in the Facts and Background section of the district court’s dismissal Order, Hennessey, 2022 WL 4447399 at *1:

1 The Honorable Sarah E. Pitlyk, United States District Judge for the Eastern District of Missouri.

-2- “As many stores do, Defendants sell products at ‘regular’ prices and at discounted ‘sale’ prices. According to Plaintiff, the sale prices that the Defendants advertised for many of their products were deceptive, because Defendants did not sell a substantial quantity of those products at the regular price for a substantial period of time prior to selling them at the sale price. She further alleges that, ‘through their use of fictitious and unsubstantiated former price comparisons, Defendants intentionally and/or negligently misrepresented and/or failed to disclose material information concerning the actual value or worth of the products they sold to Plaintiff and the Class.’ . . . Plaintiff