Seventh Circuit Certifies Case to Wisconsin Supreme Regarding Wisconsin Deceptive Trade Practices Act

The U.S. Court of Appeals for the Seventh Circuit has asked Wisconsin’s highest court to address whether a consumer who purchases an item at a purported “sale” price suffers a financial loss under Wisconsin law when the product was worth the amount paid. The answer could materially affect retailers that use comparison pricing in Wisconsin.

The Seventh Circuit certified that question to the Wisconsin Supreme Court in Gomez v. Kohl’s Corp., a putative class action alleging that Kohl’s violated the Wisconsin Deceptive Trade Practices Act (“WDTPA”) by advertising a portable speaker as “$30 off” a regular price at which it had rarely—if ever—been sold.

According to the complaint, Maria Gomez purchased a Bluetooth speaker from Kohl’s for $99.99. Kohl’s signage described the product as “$30 off” a regular price of $129.99, presenting the transaction as a significant discount.

Gomez alleged that Kohl’s had never sold the speaker at the $129.99 “regular” price before her purchase. In the three months after the transaction, the speaker was offered at the $99.99 “sale” price nearly 75% of the time, which, according to the complaint, made that price closer to the product’s actual market price.

Gomez claimed she would not have bought the speaker had she known the advertised discount was illusory. She did not allege, however, that the speaker was defective or worth less than the $99.99 she paid. The absence of an alleged value shortfall is central to the certified question.

Because the complaint did not allege a value shortfall, the Seventh Circuit sought guidance from the Wisconsin Supreme Court rather than resolve the issue under an uncertain body of state law. Under the WDTPA—specifically Wis. Stat. § 100.20(5) and ATCP 124—a plaintiff must demonstrate a “pecuniary loss” to bring a private enforcement action. The certified question is whether inducement through deceptive pricing, standing alone, satisfies that requirement.

The Seventh Circuit described Wisconsin law on this point as “genuinely uncertain.” Some Wisconsin appellate decisions suggest that wrongful inducement to purchase through deceptive pricing can itself constitute a pecuniary loss, without a traditional “benefit-of-the-bargain” calculation showing that the product was worth less than the consumer paid.

That reading differs from the approach generally followed by most federal courts and Illinois state courts, which typically require plaintiffs to show that the product’s actual value was less than the price paid. Under that framework, Gomez’s claim would likely fail because she purchased a speaker worth $99.99 for $99.99.

For retailers, the distinction is significant: if deceptive inducement alone qualifies as pecuniary loss, comparison-pricing practices could generate class action claims even when the product provided the full value paid.

The implications extend beyond the speaker transaction. Price-comparison advertising—including “was/now” pricing, percentage-off claims, and similar promotional tactics—is common in modern retail. If the Wisconsin Supreme Court adopts the broader interpretation of pecuniary loss, retailers could face increased exposure even where the product’s value equaled the price paid.

Retailers should assume that a broader rule could increase class action exposure associated with comparison-price advertising, regardless of whether the product delivered full value. Compliance teams should confirm that reference prices in promotional materials reflect genuine, regularly charged prices rather than aspirational or historical figures.

From a litigation standpoint, a favorable ruling for the plaintiff could lower the threshold for pricing class actions in Wisconsin and make the state a more attractive venue for consumer litigation.

Conversely, a decision adopting the narrower, benefit-of-the-bargain standard would provide a meaningful defense for retailers and could limit deceptive-sale claims to situations in which consumers can show that the product was actually overpriced.

The Wisconsin Supreme Court has not yet indicated whether it will accept the certified question, although requests from federal appellate courts are typically granted. If the court accepts the case, briefing and oral argument could extend into 2027.

In the meantime, businesses that use comparison pricing in Wisconsin should monitor the case and review the support for their reference prices. The outcome is likely to shape WDTPA enforcement and could influence how other states interpret similar consumer-protection statutes.

Case: Gomez v. Kohl’s Corp., No. 24-2778 (7th Cir.)