Shaulis v. Nordstrom, Inc.

United States Court of Appeals
For the First Circuit

No. 15-2354

JUDITH SHAULIS,

Plaintiff, Appellant,

v.

NORDSTROM, INC., d/b/a/ NORDSTROM RACK,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Torruella, Lynch, and Lipez, Circuit Judges.

S. James Boumil, with whom Boumil Law Offices, Konstantine W.
Kyros, and Law Offices of Konstantine W. Kyros, were on brief, for
appellant.
P. Craig Cardon, with whom Dylan J. Price, Sheppard Mullin
Richter & Hampton LLP, John P. Bueker, Rebecca C. Ellis, and Ropes
& Gray LLP, were on brief, for appellee.

July 26, 2017
 LIPEZ, Circuit Judge. This case is about a sweater with

a controversial price tag. Appellant Judith Shaulis purchased a

cardigan sweater for $49.97 at a Nordstrom Rack outlet store in

Boston, Massachusetts. The price tag attached to that sweater

listed both the purchase price of $49.97 and a higher "Compare At"

price of $218. Shaulis claims that the listed "Compare At" price

was deceptive. The sweater was, she alleges, never sold by

Nordstrom Rack, or any other retailer, for $218. Instead, Shaulis

claims that the "Compare At" price tags are used by Nordstrom to

mislead consumers about the quality of items. To vindicate this

position, Shaulis filed suit alleging that Nordstrom had, in

violation of Massachusetts statutory and common law, improperly

obtained money from her and other Massachusetts consumers and

requested that a court order Nordstrom to restore this money and

enjoin Nordstrom from continuing to violate Massachusetts law.

The district court, in a well-reasoned opinion, granted

Nordstrom's motion to dismiss all of Shaulis's claims. We affirm.

I. Background

The facts underlying this case are taken from the second

amended complaint and are presumed true for the purpose of this

appeal. They are fully set forth in the opinion of the district

court. See Shaulis v. Nordstrom Inc., 120 F. Supp. 3d 40, 43-44

(D. Mass. 2015).

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 Defendant Nordstrom, Inc. is a Seattle, Washington-based

corporation that operates department stores throughout the United

States and Canada, including five "Nordstrom Rack" outlet stores

in Massachusetts. Shaulis purchased a sweater at one of these

stores in Boston in 2014. The price tag attached to the sweater,

which included both the $49.97 purchase price and the "Compare At"

price of $218, identified the difference between the two numbers

as "77%" worth of savings.1

Shaulis claims that this price tag was deceptive.

According to Shaulis, although price tags on Nordstrom Rack

products contain both a sale price and a "Compare At" price that

purports to represent a bona fide price at which Nordstrom (or

some other retailer) formerly sold those products, Nordstrom, in

reality, sells goods manufactured by designers for exclusive sale

at its Nordstrom Rack stores, which means that such items were

never sold -- or intended to be sold -- at the "Compare At" prices

advertised on the price tags. Shaulis claims that she was

wrongfully "[e]nticed by the idea of paying significantly less

than the 'Compare At' price charged outside of Nordstrom Rack,"

and that, but for Nordstrom's deception, she never would have

purchased the sweater.

1 The complaint also listed a number of "typical examples" of
products representing "the pricing schemes and tactics utilized
by" Nordstrom. The complaint does not, however, allege that
Shaulis purchased any of these items.

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 On November 6, 2014, Shaulis initiated this action with

a complaint filed in the Massachusetts Superior Court. She filed

an amended complaint on December 8, 2014, and a second amended

complaint ("SAC") on December 24. The SAC alleged claims for

fraud, breach of contract, unjust enrichment, violations of the

Code of Massachusetts Regulations and the Federal Trade Commission

Act,2 and violations of Mass. Gen. Laws ch. 93A ("Chapter 93A").

The SAC was brought on behalf of herself and all those similarly

situated, and proposed a class consisting of "[a]ll individuals

residing in the Commonwealth of Massachusetts who, within the

applicable statute of limitations preceding the filing of this

action . . . , purchased Nordstrom Rack Products."

Nordstrom removed the case to federal court and

successfully moved to dismiss the action for failure to state a

claim. The district court held that Shaulis had failed to

adequately plead a legally cognizable injury under Chapter 93A,

and further denied her requests to certify several Chapter 93A

questions to the Massachusetts Supreme Judicial Court ("SJC") and

for leave to file a third amended complaint. The court also

dismissed all of Shaulis's common law claims, again citing the

failure to plead a legally cognizable injury.

2 The district court dismissed Shaulis's claim for violations
of the Code of Massachusetts Regulations and the Federal Trade
Commission Act on the ground that neither statute provides for a
private cause of action. Shaulis does not appeal this decision.

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 On appeal, Shaulis challenges dismissal of her Chapter

93A claim and her common law claims for fraud, breach of contract,

and unjust enrichment. Our review is de novo. Carter's of New

Bedford, Inc. v. Nike, Inc., 790 F.3d 289, 291 (1st Cir. 2015).

As a federal court sitting in diversity, we apply the substantive

law of Massachusetts, as articulated by the SJC. Sanders v.

Phoenix Ins. Co., 843 F.3d 37, 47 (1st Cir. 2016).

II. Chapter 93A

The bulk of Shaulis's appeal involves objections to the

district court's dismissal of her Chapter 93A claim for damages

and injunctive relief.3 Chapter 93A, commonly known as the

Massachusetts Consumer Protection Act, is a broad consumer

protection statute that provides a private cause of action for a

consumer who "has been injured," Mass. Gen. Laws ch. 93A § 9(1),

3Shaulis also asks us to certify several questions on Chapter
93A to the SJC, which we may do if the questions are determinative
of the pending cause of action and there is no controlling
precedent. See Mass. S.J.C. R. 1:03; Easthampton Sav. Bank v.
City of Springfield, 736 F.3d 46, 50 (1st Cir. 2013). "We have
interpreted the SJC's requirement that there be 'no controlling
precedent' to prevent certification in cases when 'the course [the]
state court[ ] would take is reasonably clear.'" Id. at 51
(alteration in original) (quoting In re Engage, Inc., 544 F.3d 50,
53 (1st Cir. 2008)). The fact "[t]hat a legal issue is close or
difficult is not normally enough to warrant certification," since
otherwise cases involving state law "would regularly require
appellate proceedings in two courts." Bos. Gas Co. v. Century
Indem. Co., 529 F.3d 8, 15 (1st Cir. 2008). As explained below,
because the course the SJC would take on the issues before us is
reasonably clear, certification is not appropriate in this case.

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by "unfair or deceptive acts or practices in the conduct of any

trade or commerce," id. § 2(a). See Rule v. Fort Dodge Animal

Health, Inc. (Rule II), 607 F.3d 250, 253 (1st Cir. 2010); see

also Casavant v. Norwegian Cruise Line Ltd., 952 N.E.2d 908, 912

(Mass. 2011) ("If any person invades a consumer's legally protected

interests, and if that invasion causes the consumer a loss --

whether that loss be economic or noneconomic -- the consumer is

entitled to redress under our consumer protection statute."

(quoting Hershenow v. Enterprise Rent-A-Car Co., 840 N.E.2d 526,

535 (Mass. 2006))).

After reviewing the relevant Massachusetts regulations,4

the district court determined that Nordstrom's alleged pricing

scheme "constitut[ed] an unfair or deceptive practice under

Chapter 93A." Shaulis, 120 F. Supp. 3d at 48-49. The court

further found that Shaulis had adequately alleged that Nordstrom's

deception "caused" an identifiable "harm" -- namely, that Shaulis

had sufficiently alleged that she was "directly induced" to make

a purchase she would not have made, absent the unfair or deceptive

practice. Id. at 50, 52. The court held, however, that Shaulis

4 The district court also discussed the applicable portions
of the Federal Trade Commission Act and related FTC Guidelines
dealing with false advertising and deceptive pricing. However,
because the court determined that the SAC adequately alleged a
violation of the Code of Massachusetts Regulations, it declined to
decide "whether the complaint also allege[d] a deceptive practice
under the Federal Trade Commission Act." Shaulis, 120 F. Supp. 3d
at 49 n.4.

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had failed to allege a legally cognizable injury for purposes of

Chapter 93A because Shaulis's "subjective belief that she did not

receive a good value, without more, is not enough to establish the

existence of a Chapter 93A injury." Id. at 53.

On appeal, Shaulis contends that the district court

misread the SJC's Chapter 93A jurisprudence and erroneously

concluded that she had failed to adequately allege a legally

cognizable injury based on Nordstrom's deceptive pricing scheme.

Hence, we first review the relevant case law on Chapter 93A

injuries, and then review Shaulis's claim de novo.

A. Injury under Chapter 93A

Many courts -- both state and federal -- have struggled

to explain what constitutes an injury under Chapter 93A. See Tyler

v. Michaels Stores, Inc., 984 N.E.2d 737, 745 n.15 (Mass. 2013)

(discussing differing interpretations of earlier SJC opinions);

Rule v. Fort Dodge Animal Health, Inc. (Rule I), 604 F. Supp. 2d

288, 298 (D. Mass. 2009) (noting that case law "construing the

Chapter 93A . . . injury requirement has had a less than

intellectually coherent course of development"). We last explored

the parameters of Chapter 93A injuries in 2010 in Rule II. That

case involved a Chapter 93A claim by a plaintiff who purchased

heartworm medication for her dog, Luke. 607 F.3d at 251. After

administering the medication, the plaintiff learned that the FDA

had recalled the medication because of harmful side effects. Id.

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Plaintiff then brought a class action against the manufacturer of

the heartworm medication, alleging that, although Luke was none

the worse for wear, she had overpaid for the medication. Id.

at 251-52. Plaintiff's theory of the case was that "she purchased

[the medication] because of a deception (failure to disclose the

risk), the product was 'in reality' worth less than she paid for

it (because of that undisclosed risk)," and thus she had suffered

"injury," the measure of her damages being "the difference between

what she paid and what she would have paid if the risk had been

disclosed." Id. at 253.

A central issue in Rule II was whether a "per se" theory

of injury -- that is, a claim that the deception itself is the

requisite injury -- was sufficient to state a claim under Chapter

93A. Or, as we put the question in Rule II: whether "[C]hapter

93A injury requires that a plaintiff who seeks to recover show

'real' economic damages," or whether "injury as a violation of

some abstract 'right' like the right not to be subject to a

deceptive act that happened to cause no economic harm" was

sufficient. Id. We noted that the plaintiff had suffered no

"economic injury in the traditional sense" because she had "used

up" the medication for its advertised purpose without ill effect,

and she thus held nothing of reduced value nor faced any risk of

harm. Id. at 255. We acknowledged, however, that if Rule had

sued before Luke consumed the medication, she may have been able

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to claim injury based on her overpayment theory, because she would

have possessed medication that was not what she bargained for.

Id.

In reaching this decision, we observed that "the most

recent SJC cases" had "moved away" from the "per se" theory of

injury supported by earlier cases -- that is, a claim that an

unfair or deceptive act alone constitutes injury -- and had

"returned to the notion that injury under [C]hapter 93A means

economic injury in the traditional sense." Id. at 254-55; see

also Rule I, 604 F. Supp. 2d at 298-306 (surveying the development

of the SJC's Chapter 93A jurisprudence). Specifically, we

contrasted the SJC's earlier opinions in Leardi v. Brown, 474

N.E.2d 1094 (Mass. 1985), and Aspinall v. Philip Morris Cos., 813

N.E.2d 476 (Mass. 2004), with more recent opinions in Hershenow,

840 N.E.2d at 526, and Iannacchino v. Ford Motor Co., 888 N.E.2d

879 (Mass. 2008), which had rejected the "per se" theory of injury.

See Hershenow 840 N.E.2d at 535 ("A consumer is not . . . entitled

to redress under [Chapter 93A], where no loss has occurred.");

Iannacchino, 888 N.E.2d at 886-87 (explaining that, if properly

alleged, a claim that plaintiffs own vehicles with defective door

handles, in violation of federal safety regulations, would support

a cause of action under Chapter 93A because plaintiffs would have

paid for fully compliant vehicles, which they did not receive).

We acknowledged, however, that there may remain certain

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"exceptions" to this general rule, embodied in older SJC opinions

that have not been expressly overruled, but we left to the SJC the

task of defining them. Rule II, 607 F.3d at 255 (citing Leardi,

474 N.E.2d at 1101); see also Hershenow, 840 N.E.2d at 538, (Cowin,

J., concurring) (noting that Hershenow had "overruled . . . sub

silentio" earlier opinions supporting a "per se" theory of injury).

1. Tyler

Helpfully, since our opinion in Rule II, the SJC has

clarified what constitutes a legally cognizable injury under

Chapter 93A, most notably in Tyler v. Michaels Stores, Inc. In

Tyler, the plaintiff accused the defendant of violating a statute,

Mass. Gen. Laws ch. 93, § 105, that prohibits companies from

writing customers' "personal identification information" on credit

card transaction forms when the credit card issuer does not require

the company to provide such information. 984 N.E.2d at 738 & n.1.

The SJC explained that, if the company, as a result of a violation

of § 105, "use[d] the [personal identification] information for

its own business purposes," such as "by sending the customer

unwanted marketing materials or by selling the information for a

profit," the company would "ha[ve] caused the consumer a[] [non-

economic] injury that [wa]s distinct from the statutory violation

itself and [thus] cognizable under [Chapter 93A]." Id. at 746.

But the SJC went on to explain that if, by contrast, the company

had merely placed the personal information in a file "and never

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used the information for any purpose thereafter, a consumer would

not have a cause of action for damages" under Chapter 93A, even

though the company may have violated § 105 and thereby committed

"an unfair or deceptive act." Id. at 746 n.17.

In explaining its decision in Tyler, the SJC stated that

a violation of an independent statute -- such as the Code of

Massachusetts Regulations here -- does not itself "satisf[y] the

injury requirement of c. 93A, § 9," and hence, does not

"automatically entitle[ ] the plaintiff to at least nominal damages

(and attorney's fees)" under Chapter 93A. Id. at 744–45. Instead,

"the violation of the legal right that has created the unfair or

deceptive act or practice must cause the consumer some kind of

separate, identifiable harm arising from the violation itself."

Id. at 745 (emphasis added). The SJC thus held that "a plaintiff

bringing an action . . . under [Chapter 93A] must allege and

ultimately prove that she has, as a result [of the statutory

violation], suffered a distinct injury or harm that arises from

the claimed unfair or deceptive act." Id. at 745-46 (emphasis

added); see also Walsh v. TelTech Sys., Inc., 821 F.3d 155, 161-

62 (1st Cir. 2016) (discussing Tyler); Bezdek v. Vibram USA Inc.,

No. 12-cv-10513-DPW, 2013 WL 639145, at *5 (D. Mass. Feb. 20, 2013)

(observing that the SJC has "disavowed the notion that deceptive

advertising constitutes per se injury on consumers who purchase

the product").

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 2. Bellermann

The SJC recently reaffirmed Tyler's holding in

Bellermann v. Fitchburg Gas & Elec. Light Co., 54 N.E.3d 1106

(Mass. 2016), which postdates the district court's opinion in this

case. See 54 N.E.3d 1106. In Bellermann, a state agency

determined that a utility company had failed to comply with certain

storm preparedness regulations. Id. at 1107. Plaintiffs,

customers of the company, filed a class action under Chapter 93A,

alleging that they had suffered economic injury by "overpaying for

a level of emergency storm preparedness" that the company could

not have provided, if a storm had occurred. Id. at 1108. As the

plaintiffs saw it, they had adequately alleged injury because "they

ha[d] paid for more in terms of quality and reliability of service

than they received." Id. at 1109-10.

The SJC rejected the Bellermann plaintiffs' theory of

injury. Id. at 1114. Citing Tyler and earlier cases, the SJC

distinguished cases where a Chapter 93A plaintiff "suffered an

economic injury because . . . the defendants' products did not

deliver the full anticipated and advertised benefits, and

therefore were worth less, as used or owned, than what the

plaintiffs had paid," from those cases where the alleged injury

was merely hypothetical or speculative. Id. at 1112. Reaffirming

Tyler's holding that "to meet the injury requirement under [Chapter

93A], a plaintiff must have suffered a 'separate, identifiable

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harm arising from the [regulatory] violation' that is distinct

'from the claimed unfair or deceptive conduct itself,'" the SJC

concluded that permitting plaintiffs' overpayment theory of injury

"would permit class certification . . . whenever a product (or

service) fails to conform to a regulatory requirement and the

consumer alleges an economic injury based on overpayment for the

product." Id. at 1111 (quoting Tyler, 984 N.E.2d at 745).

In other words, the SJC treated the plaintiffs' theory

as akin to a per se theory of injury. Because the plaintiffs had

alleged only a possibility of adverse consequences -- which did

not occur -- they were, in effect, seeking damages based solely on

the utility company's violation of the regulations. The court

held that such a claim, alleging an "overpayment" for a flawed

"product" that never actually underperformed, did not state a

cognizable injury under Chapter 93A.

The SJC reached this conclusion in Bellermann by

comparing and contrasting its reasoning in three earlier Chapter

93A cases: Iannacchino, Aspinall, and Hershenow. Two of the cases,

Iannacchino and Aspinall, involved regulatory noncompliance in

which the court had found identifiable economic injury. In the

third, Hershenow, the SJC concluded that the defendant's

regulatory violation had caused no economic loss. Id. at 1111-

13.

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 Specifically, in Iannacchino, the plaintiffs claimed

that their vehicles' door handles did not comply with applicable

safety regulations. 888 N.E.2d 882. Although the SJC dismissed

the plaintiffs' claims on other grounds, the court observed that

safety regulations play "a highly significant role" in a consumer's

decision to purchase a vehicle, id. at 886, and thus

the purchase price paid by the plaintiffs for their
vehicles would entitle them to receive vehicles that
complied with . . . safety standards or that would be
recalled if they did not comply. If [the defendant]
knowingly sold noncompliant (and therefore potentially
unsafe) vehicles or if [the defendant], after learning
of noncompliance, failed to initiate a recall and to pay
for the condition to be remedied, the plaintiffs would
have paid for more (viz., safety regulation-compliant
vehicles) than they received. Such an overpayment would
represent an economic loss -- measurable by the cost to
bring the vehicles into compliance -- for which the
plaintiffs could seek redress under G.L. c. 93A.

888 N.E.2d 886-87.

Bellermann similarly construed the circumstances in

Aspinall. There, the SJC had held that purchasers of cigarettes

could bring a class action against a manufacturer for falsely

claiming that its cigarettes delivered health benefits they did

not, in fact, provide. 813 N.E.2d 479-80. The manufacturer

labeled the cigarettes as "light," in purported compliance with

regulations under which "light" cigarettes were those that

delivered lower levels of toxins compared to regular cigarettes.

Id. The SJC concluded that the putative class members "were

injured when they purchased a product that, when used as directed,

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exposed them to substantial and inherent health risks that were

not . . . minimized by their choice of the defendant's 'light'

cigarettes." Id. at 488. As the Bellermann court interpreted the

holding in Aspinall, the consumers had alleged a legally cognizable

injury because each consumer "had purchased and smoked cigarettes

that did not deliver the advertised health benefits" and they did

not receive the benefit (lower toxins) "for which each had paid."

Bellermann, 54 N.E.3d at 1112.

The SJC contrasted these cases with Hershenow, in which

putative class members who had rented automobiles from the

defendant rental company sought class certification based on the

defendant's violation of a regulation governing the terms of damage

waiver clauses. Although the rental agreement did not comply with

applicable regulations, none of the putative class members had

been in an accident that triggered the damage waiver clause.

Because the invalid provision was never enforced, the SJC concluded

that no plaintiff had suffered the necessary, distinct injury that

"is an essential predicate for recovery under" Chapter 93A.

Hershenow, 840 N.E.2d at 528 (emphasizing that each putative class

member was no "worse off during the rental period than he or she

would have been had the [damage waiver provision] complied in

full"). Hence, "unlike the injuries recognized in Iannacchino and

Aspinall," where plaintiffs did not "receive[] the full benefit of

the purchase," the plaintiffs in Hershenow received everything

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they bargained for and faced no future risk of harm. Bellermann,

54 N.E.3d at 1113 (quoting Shaulis, 120 F. Supp. 3d at 52).

We can derive from the analyses in Tyler and Bellermann

a clear understanding of the SJC's current view of a legally

cognizable economic injury under Chapter 93A. To state a viable

claim, the plaintiff must allege that she has suffered an

"identifiable harm" caused by the unfair or deceptive act that is

separate from the violation itself. Tyler, 984 N.E.2d at 745.

Put another way, a plaintiff must "show 'real' economic damages,"

as opposed to some speculative harm. Rule II, 607 F.3d at 253.

Accordingly, a claim that alleges only a "per se" injury -- that

is, a claim resting only on a deceptive practice, regulatory

noncompliance, or the "impairment of an abstract right without

economic loss" -- is insufficient to state a Chapter 93A claim.

Id.; see also Tyler, 984 N.E.2d at 745-46. It is thus not enough

to claim that the defendant's improper conduct created a risk of

"real economic damages." Rule II, 607 F.3d at 253 (internal

quotation marks omitted). Speculation concerning still inchoate

harm does not establish the distinct injury that "is an essential

predicate for recovery under" Chapter 93A. Bellermann, 54 N.E.3d

at 1113 (quoting Hershenow, 840 N.E.2d at 528); see also Rule II,

607 F.3d at 253. Instead, legally cognizable injuries under

Chapter 93A must involve objective, "identifiable" harm that goes

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beyond the deception itself. Tyler, 984 N.E.2d at 745; Iannacchino

888 N.E.2d at 888.

B. Application

Shaulis claims that she has suffered a legally

cognizable injury because she was "induced" to make a purchase she

would not have made, but for the false sense of value created by

Nordstrom's pricing scheme. She primarily asserts that her injury

is the loss of $49.97 because, in the district court's words, "she

would rather have her money -- which she could use to purchase

other things -- than the sweater." Shaulis, 120 F. Supp. 3d at

52. Although the SJC has not addressed an "induced purchase"

theory of injury exactly like Shaulis's, we think it is clear,

given the discernible principles in the SJC's case law, that

Shaulis's claim falls short of alleging the "identifiable" injury,

distinct from the claimed deceptive conduct itself, that the SJC

requires for individual relief under Chapter 93A. Tyler, 984

N.E.2d at 745; see also Bellermann, 54 N.E.3d at 1111.

The flaw in Shaulis's theory of injury -- that the mere

purchase of an item may constitute cognizable injury, regardless

of the item's specific qualities -- is that it merges the alleged

deception with the injury. To illustrate that point, we offer two

scenarios. First, if Shaulis had not purchased a sweater after

viewing the offending "Compare At" price tag, and later learned

that Nordstrom's pricing scheme violated the Massachusetts Code of

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Regulations, she obviously would not have suffered a legally

cognizable Chapter 93A injury. To claim injury based on the

deceptive tag would be to rely on the "per se" theory of injury

the SJC has rejected.

In the second scenario, taking the facts as Shaulis

alleges them, she purchased the sweater, but claims she did so

only because the tag suggested that the sweater was worth more

than the price Nordstrom actually charged. This contention is

simply another way of saying that Shaulis was wrongfully deceived

by Nordstrom. She identifies no objective injury traceable to the

purchased item itself -- for example, that the sweater was poorly

made or that its materials were misrepresented. Such a purchase-

as-injury claim collapses the SJC's required distinction between

deception and injury by attempting to plead an assertion about a

consumer's disappointed expectations of value in place of an

allegation of real economic loss.

Shaulis contends that this construction reads the SJC's

definition of injury too narrowly. In her view, her injury is

clear: she no longer has her money, and the sweater she does have

is "worth nothing at all to [her] since she never would have bought

it" absent Nordstrom's deception. Thus, Shaulis argues, her injury

is concrete -- more like the injuries alleged by owners of

noncompliant cars in Iannacchino than like the speculative or

never-realized harms alleged in Rule II or Hershenow -- and,

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therefore, she has alleged more than the mere regulatory violation

the SJC has rejected as a viable form of Chapter 93A injury.

However, Shaulis's attempt to distinguish her injury

from those of the unsuccessful plaintiffs in cases like Rule II,

Hershenow, and Bellermann overlooks a primary rationale for those

decisions, namely, that the plaintiffs had received everything

they had bargained for. Thus, in Rule II, the plaintiff received

effective medication without side effects. In Hershenow, the

plaintiffs received adequate rental cars, and the illegal damage

waivers in their rental contracts were never enforced. And, in

Bellermann, the plaintiffs received all of the electrical service

to which they were entitled.

By contrast, in cases where plaintiffs' Chapter 93A

claims were successful, there was a clear connection between the

defendant's regulatory violation and an objective injury. In

Iannacchino, for example, the SJC noted that plaintiffs could

adequately plead injury where the cars they purchased purported

to, but did not, meet federal safety regulations, the defendant

refused to recall and fix the vehicles, and the plaintiffs' damages

could be easily identified by measuring the cost to bring the

vehicles into compliance with the regulations. Iannacchino, 888

N.E.2d at 886-87; see also Bezdek, 2013 WL 639145, at *6

(recognizing "price premium" theory of injury adequately alleged

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where plaintiffs claimed they paid more for shoes that promised

to, but did not, provide specific health benefits).

Unlike the plaintiffs in Iannacchino, however, Shaulis's

complaint fails to identify any bargained-for characteristic of

the sweater that she has not received. As the district court

explained, Shaulis "arguably got exactly what she paid for, no

more and no less," emphasizing her failure to allege that the

sweater was "worth less than the selling price, that it was

manufactured with shoddy materials or inferior workmanship, that

it is of an inferior design, or that it is otherwise defective."

Shaulis, 120 F. Supp. 3d at 51-52. At bottom then, Shaulis's

alleged "injury" is only that Nordstrom tricked her into believing

that she was getting a bargain, and not, as was the case in

Iannacchino, that the product itself was deficient in some

objectively identifiable way. That perceived adverse impact -- as

the district court put it, "the subjective belief as to the nature

of the value [Shaulis] received" -- does not state a legally

cognizable economic injury under Chapter 93A because it fails to

identify anything objective that Shaulis bargained for that she

did not, in fact, receive.

Perhaps realizing this flaw in her claims, Shaulis

attempts to reframe her injury as a loss of the benefit of the

bargain, contending that the "Compare At" price tag was a false

representation that the sweater was of "high quality." But this

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reformulation is fundamentally no different than her "induced

purchase" theory of injury because Shaulis does not explain how

the sweater was not of "high quality" in any objective way. As

the SJC explained in Iannacchino, a plaintiff's "bare assertion"

that a product is deficient in some way is "conclusory and can be

subjective" and thus "does not suffice to state a viable claim."

888 N.E.2d at 888. Instead, claims of injury premised on

"overpayment" for a product, or a loss of the benefit of the

bargain, require an objective measure against which the

plaintiff's allegations may be evaluated. See id. ("[T]he

complaint must identify a legally required standard that the

[product] w[as] at least implicitly represented as meeting, but

allegedly did not.").

Shaulis, however, makes no objective claims, instead

relying only on inferences she drew about the quality of the

sweater based on the "Compare At" price tag. Indeed, Shaulis's

assertion that the sweater is "worth nothing to [her]" proves too

much, as it demonstrates that the only injury she has alleged is

based solely on her subjective belief that she got a bad deal.

Shorn of its conclusory allegations, the complaint adequately

alleges only that Nordstrom violated the Massachusetts Code of

Regulations and that Shaulis purchased a sweater for $49.97 that

she no longer wants.

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 Shaulis's attempt to analogize this case to fake-Rolex

hawking in Hong Kong is also unpersuasive. She claims that the

district court "apparently would find no actionable grievance in

the fact that the purchase was not a real Rolex but a replica made

of inferior materials, selling at a 99% discount." There is an

obvious distinction there: falsely advertising a watch as a "Rolex"

is a material misstatement about the watch's quality. Shaulis

alludes to what she purchased as a "phony designer sweater" but

has made no allegations that Nordstrom ever represented it as such.

It may be the case that Shaulis, in fact, made an

inference from price to value (the claimed "high quality" of the

sweater) based on Nordstrom's "Compare At" price tag, or even that

Nordstrom hopes some customers will make this inference. See Dhruv

Grewal & Larry D. Compeau, Comparative Price Advertising:

Informative or Deceptive?, 11 J. Pub. Pol'y & Mktg. 52, 55 (1992)

("By creating an impression of savings, the presence of a higher

reference price enhances subjects' perceived value . . . [of a]

product."). Indeed, it is presumably just this kind of erroneous

inference that Massachusetts seeks to prevent by regulation. Yet,

not only have Massachusetts courts declined to find injury under

Chapter 93A where the plaintiff relies entirely on her subjective

belief as to the value received, but federal courts also have

routinely rejected claims of injury under Chapter 93A that were

not grounded in any objective measure. See, e.g., In re Celexa &

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Lexapro Mktg. and Sales Practices Litig., No. 14-cv-13848-NMG,

2015 WL 3751422, at *8 (D. Mass. June 15, 2015) (rejecting

"informed choice" theory of injury where plaintiffs alleged they

would not have purchased drug had they known certain information);

Sergeants Benv. Ass'n Health & Welfare Fund v. Sanofi-Aventis U.S.

LLP, 20 F. Supp. 3d 305, 336 (E.D.N.Y. 2014), aff'd, 806 F.3d 71

(2d Cir. 2015) (rejecting induced purchase theory of injury under

Chapter 93A).

Appellate courts reviewing the consumer protection

statutes of other states also have consistently rejected similar

purchase-as-injury claims. See, e.g., Kim v. Carter's Inc., 598

F.3d 362, 366 (7th Cir. 2010) (rejecting induced purchase theory

of injury where plaintiff alleged she was deceived by fictitious

price tags on clothing); Small v. Lorillard Tobacco Co., 720 N.E.2d

892, 898 (N.Y. 1999) (rejecting induced purchase theory of injury

under New York law because it "sets forth deception as both act

and injury"). Absent allegations of real loss grounded in some

objective measure, Shaulis's "induced purchase" theory of injury

is simply the "per se" theory of injury in new clothing, and hence,

it is insufficient to adequately allege injury under the SJC's

current Chapter 93A jurisprudence.

In a final attempt to salvage her claim for damages,

Shaulis changes tack, arguing that even if she has not suffered an

economic injury by being induced to purchase the sweater, she has

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suffered a separate injury in the form of expenses incurred

traveling to the Nordstrom Rack.5 Shaulis's "travel expenses"

theory of damages, however, was not pleaded in the SAC, and she

did not raise it in the district court. Hence, we need not address

it here. In any event, this argument would also fail because

Shaulis does not explain how a deceptive price tag could have

caused her to travel to the Nordstrom Rack in the first place.6

See Walsh, 821 F.3d at 160 ("A plaintiff's failure to establish

5 Shaulis also claims that she is entitled to damages under
Chapter 93A's statutory damages provision and the SJC's
acknowledgment in Tyler that "injury or harm worth more than a
penny" entitles a plaintiff to statutory damages. See 984 N.E.2d
at 746 n.20. Shaulis misapprehends the relevant law. Chapter
93A, § 9 provides that "if the court finds for the petitioner,
recovery shall be in the amount of actual damages or twenty-five
dollars, whichever is greater." This statutory damage provision
does not, however, supplant the requirement that a plaintiff prove
injury under § 9. Instead, "[i]t merely eliminates the need to
quantify an amount of actual damages if the plaintiff can establish
a cognizable loss caused by a deceptive act." Hershenow, 840 N.E.2d
at 526 n.18 (emphasis added). Tyler, however, involved noneconomic
injury (an invasion of the consumer's privacy), and its discussion
of "injury or harm worth more than a penny" dealt with the measure
of damages, not the establishment of injury in the first instance.
Here, Shaulis has simply not pleaded a legally cognizable injury,
an inquiry that is antecedent to the measurement of damages.
6 Shaulis attempts to circumvent this causation problem by
claiming that she was lured to the Nordstrom Rack by unspecified
advertising that promised bargains. These claims are too vague to
meet the heightened pleading requirements of Federal Rule of Civil
Procedure 9(b) for claims sounding in fraud. Martin v. Mead
Johnson Nutrition Co., No. 09-cv-11609, 2010 WL 3928707, at *3 (D.
Mass. Sept. 30, 2010) ("A claim under Chapter 93A that involves
fraud is subject to the heightened pleading requirement.").

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both factual causation and proximate causation is fatal to her

Chapter 93A claim.").

C. Injunctive Relief under Chapter 93A

Shaulis separately assigns error to the district court's

failure to grant her request for injunctive relief under Chapter

93A. In particular, Shaulis contends that she is entitled to

injunctive relief under Chapter 93A regardless of whether her claim

for damages is dismissed.

Shaulis's only support for this claim is Diviacchi v.

Speedway LLC, in which the district court held that "a [Chapter

93A] plaintiff may pursue a claim for purely injunctive

relief . . . absent any injury." 109 F. Supp. 3d 379, 386 (D.

Mass. 2015). In making this determination, the Diviacchi court

focused on language in Tyler that it said suggested that the

requirement of proving injury applied only to a claim for damages.

Id. at 385–86. Specifically, the Diviacchi court acknowledged

that Tyler demonstrated "a broad shift away from the notion that

the invasion of a legal right, standing alone, is sufficient to

support a claim under Chapter 93A," but the court noted that the

SJC's silence on the availability of equitable relief counseled in

favor of finding that such relief was available. Id.; see Shaulis,

120 F. Supp. 3d at 50 n.5 (discussing Diviacchi).

We find this reasoning unpersuasive, as did the district

court. Neither the text of Chapter 93A nor the relevant case law

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supports this argument. The plain language of Chapter 93A limits

the class of consumers who may bring an action to those who "ha[ve]

been injured," and offers as remedy both "damages and

. . . equitable relief, including an injunction." Mass. Gen. Laws

ch. 93A, § 9(1) (emphasis added). We find nothing in the text of

Chapter 93A that obviates the need to prove injury in private suits

for injunctive relief, or even suggests that private suits for

equitable relief should somehow be treated differently than claims

for damages.

Further, the SJC has never explicitly distinguished

between the form of injury required for damages and that required

for injunctive relief. See Hershenow, 840 N.E.2d at 535 (holding

that Chapter 93A plaintiff must prove (1) an "invasion" of a

"legally protected interest" and (2) that the "invasion causes the

consumer a loss," either "economic or non-economic"); cf. Young v.

Wells Fargo Bank, N.A., 717 F.3d 224, 242 (1st Cir. 2013) (vacating

dismissal of claims for both damages and injunctive relief under

Chapter 93A, and noting that claim for injunctive relief was

"derivative of" plaintiff's claim for damages). Moreover, the

SJC's most recent opinion on point, Bellermann, lacks any language

distinguishing claims for damages from claims for injunctive

relief. See 54 N.E.3d at 1110 ("To succeed in [a] motion for class

certification under [Chapter 93A] . . . plaintiffs . . . must show

that the assertedly unfair or deceptive act or practice

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. . . caused their injuries."). Hence, consistent with the plain

language of the statute, we hold that a private cause of action

under Chapter 93A -- either for damages or injunctive relief --

requires a plaintiff to allege injury, as that term is defined by

the SJC. See Tyler, 984 N.E.2d at 745 ("The invasion of a

consumer's legal right . . . may be a violation of G.L. c. 93A,

§ 2 . . . but the fact that there is such a violation does not

necessarily mean the consumer has suffered an injury.").

Shaulis gravely warns, however, that failure to provide

for a private cause of action for injunctive relief will leave

Massachusetts consumers unprotected from retailers' dishonest

pricing schemes. We disagree. As we noted in Rule II, the

Massachusetts Attorney General "has authority [under Chapter 93A]

to seek heavy sanctions on those who engage in deceptive

advertising even without injury." 607 F.3d at 255 (emphasis added)

(citing Mass. Gen. Laws ch. 93A, § 4); see also Rule I, 604 F.

Supp. 2d at 304 ("Chapter 93A was not 'mean[t] to authorize purely

vicarious suits by self-constituted private attorneys-general.'"

(alteration in original) (quoting Leardi, 474 N.E.2d at 1102)).

It may be the case that Nordstrom's allegedly unlawful conduct

needs to be deterred, "but not necessarily by those who . . . were

not injured." Rule II, 607 F.3d at 255. Hence, because Shaulis

has not adequately alleged that she suffered a legally cognizable

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injury, her Chapter 93A claims for damages and injunctive relief

were both properly dismissed.

III. Common Law Claims

Shaulis's remaining common law claims -- for fraud,

unjust enrichment, and breach of contract -- fare no better than

her Chapter 93A claim. We address each in turn.

First, Shaulis's claim for fraudulent misrepresentation

fails for the same reason as her Chapter 93A claim: she has not

alleged an actionable injury caused by Nordstrom's allegedly false

statement. Specifically, under Massachusetts law, a claim for

fraudulent misrepresentation requires a pecuniary loss. See Twin

Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 837 N.E.2d

1121, 1135-36 (Mass. 2005). Although Shaulis alleges that she

would not have purchased the sweater but for Nordstrom's deception

-- and, hence, that we should infer that her "loss" is the total

purchase price -- she does not allege that the sweater she actually

received was worth less than she paid, or that the sweater was

defective in some way. Absent such allegations, her claim for

fraudulent misrepresentation fails to allege any pecuniary loss.

Shaulis contends, however, that she is at least entitled

to consequential damages on her fraud claim -- in the form of

travel expenses to the Nordstrom Rack, shipping expenses to return

the sweater, or the cost of telephone calls to Nordstrom to

complain. This argument also fails. Although consequential

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damages are generally available for fraudulent misrepresentation,

see Rivera Castillo v. Autokirey, Inc., 379 F.3d 4, 12 (1st Cir.

2004), Shaulis does not allege any consequential damages in the

SAC. As explained above, the "travel expenses" theory of damages

is alleged for the first time on appeal, and, even if this theory

had been properly alleged in the SAC, it fails for the simple

reason that plaintiff could not have seen the deceptive price tag

until she had already reached the store. See Kiluk v. Select

Portfolio Servicing, Inc., No. 11-civ-10731-FDS, 2011 WL 8844639,

at *5 (D. Mass. Dec. 19, 2011) ("[T]he complaint must allege that

plaintiffs suffered a pecuniary loss as a consequence of their

reliance on defendant's alleged misrepresentation.").

As for Shaulis's breach of contract claim, we find no

allegations in the SAC that the sales contract itself was actually

breached. See Kim, 598 F.3d at 364 (finding no breach of contract

where item was advertised for "30% off an inflated, fictitious"

price, because "[b]y charging this agreed price in exchange for

ownership of the clothing, [defendant] gave the plaintiffs the

benefit of their bargain"). The agreement between Shaulis and

Nordstrom was nothing more than a straightforward, everyday sales

contract for the purchase of a sweater. By charging the agreed

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price in exchange for ownership of the sweater, Nordstrom fulfilled

its contractual obligations.7

Shaulis's common law claim for unjust enrichment also

fails because a party with an adequate remedy at law cannot claim

unjust enrichment. ARE-Tech Square, LLC v. Galenea Corp., 91 Mass.

App. Ct. 1106 (Mass. App. Ct. 2017); see also Mass. Eye & Ear

Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 234 (1st

Cir. 2005) (noting that unjust enrichment serves only as an

"equitable stopgap for occasional inadequacies in contractual

remedies at law"). Moreover, Massachusetts law does not permit

litigants "to override an express contract by arguing unjust

enrichment." Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118,

130 (1st Cir. 2006). Although Shaulis argues that, if her other

claims are dismissed, she effectively has no adequate remedy, this

argument misapprehends the relevant law. It is the availability

of a remedy at law, not the viability of that remedy, that

prohibits a claim for unjust enrichment. See Reed v. Zipcar, Inc.,

7 Shaulis also makes an undeveloped claim that Nordstrom
violated the implied covenant of good faith and fair dealing.
Under Massachusetts law, a covenant of good faith and fair dealing
is implied in every contract. UNO Restaurants, Inc. v. Boston
Kenmore Realty Corp., 805 N.E.2d 957, 964 (Mass. 2004). However,
"[t]he duty of good faith and fair dealing concerns the manner of
performance" of the contract, as opposed to the negotiation of its
terms. Id. Moreover, the implied covenant may not be invoked to
create rights and duties not contemplated by the provisions of the
contract or the contractual relationship. Id. Here, because there
are no allegations in the SAC regarding Nordstrom's performance of
its contract with Shaulis, this claim also fails.

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883 F. Supp. 2d 329, 334 (D. Mass. 2012) (noting that the viability

of the remedy at law "is beside the point" and the "mere

availability" of a remedy at law bars a claim for unjust

enrichment), aff'd, 527 F. App'x 20 (1st Cir. 2013); Fernandes v.

Havkin, 731 F. Supp. 2d 103, 114 (D. Mass. 2010) ("Plaintiff's

negligence and [C]hapter 93A claims . . . preclude a claim for

unjust enrichment. The disposition of those claims is

irrelevant.").

IV. Motion for Reconsideration and Leave to Amend

Finally, we find that the district court did not err in

denying Shaulis's motion for reconsideration and for leave to

amend.

The district court held "that [Shaulis had] not made the

necessary showing of newly discovered evidence or a manifest error

of law to warrant reconsideration," and thus declined to vacate

the judgment of dismissal under Fed. R. Civ. P. 59 or 60 to allow

leave to amend. See Acevedo–Villalobos v. Hernández, 22 F.3d 384,

389 (1st Cir. 1994) ("Unless postjudgment relief is granted, the

district court lacks power to grant a motion to amend the complaint

under Rule 15(a)."). As explained above, the district court

committed no legal error in dismissing Shaulis's Chapter 93A and

common law claims. Hence, Shaulis's only remaining argument for

post-judgment relief is based on purported newly discovered

evidence -- a Nordstrom "Compliance Manual" that Shaulis alleges

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demonstrates "that Nordstrom has intentionally and deliberately

implemented" a deceptive pricing scheme. The district court,

however, found that Shaulis had adequately pleaded that

Nordstrom's alleged pricing scheme "constitut[ed] an unfair or

deceptive practice under Chapter 93A." Shaulis, 120 F. Supp. 3d

at 49. Nordstrom has not even appealed this determination, and,

hence, cumulative allegations of Nordstrom's allegedly deceptive

conduct cannot help Shaulis avoid dismissal of her claims. Here,

the primary deficiency in the SAC was that Shaulis failed to

adequately plead that she suffered a legally cognizable injury;

further allegations of deception do nothing to remedy that flaw.

Affirmed.

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