Injunctive relief is pled as a separate, independent cause of action. 1

1

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JOSEPH DISANTO, on behalf of himself and

all others similarly situated,

Plaintiff, 

v.

BEST BUY STORES, L.P. and BEST BUY

CO., INC., 

Defendants.

Civil Action No.: 09-4727 (PGS)

OPINION

SHERIDAN, U.S.D.J.,

This matter comes before the Court on Defendants Best Buy Stores, L.P. and Best Buy Co.,

Inc.’s (collectively “Best Buy”) motion to dismiss pursuant to Federal Rule of Civil Procedure

(“Rule”) 12(b)(6). 

Plaintiff alleges five causes of action in his putative class action complaint: (1) violation of

the New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. 56:8-1 et seq.;(2) breach of the covenant

of good faith and fair dealing; (3) declaratory relief that Best Buy’s practices are unlawful; (4) unjust

enrichment; and (5) injunctive relief.1

I. STATEMENT OF FACTS 

Pursuant to the Class Action Fairness Act (“CAFA”), Plaintiff initiates this putative class

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action on behalf of himself and all other persons who were “damaged by Best Buy’s failure to abide

by its expressly stated and advertised ‘price match guarantee.’” (Am. Compl. ¶ 1.) Plaintiff, Joseph

DiSanto, is a New York resident and Defendants are Minnesota corporations. Best Buy has store

locations in Bridgewater and Woodbridge, New Jersey, and Plaintiff alleges that the acts that give

rise to the instant law suit occurred in these locations in February 2008, July 2008, and February

2009. 

Best Buy is the largest speciality retailer of consumer electronics in the United States and

Canada. (Id. ¶ 2.) Best Buy promotes a “price match guarantee” as part of its advertising and

promotional efforts. (Id.) Best Buy guarantees that “it will match any local competitor’s lower

price” and if a customer has already purchased that product, then Best Buy will refund the entire

price of the product plus ten percent. (Id.) The price match guarantee is promoted in several ways,

including (a) advertising in Best Buy’s Sunday circular, (b) displaying nine panel signs in the store,

(c) including it on store pads and the Best Buy website, and (d) advertising it in commercials. (Id.

¶ 22.) This advertising was consistent with Best Buy’s motto: “Beat everybody, everyday,

everywhere on everything.” (Id. ¶ 24.) Plaintiff alleges that because this price match guarantee is

actually unprofitable and has “a significant negative impact on its margins and revenue, Best Buy

has an undisclosed policy to aggressively discourage and deny customers’ proper price match

requests.” Plaintiff refers to this as Best Buy’s “Anti-Price Matching Policy.” (Id.) Plaintiff alleges

that Best Buy clearly specifies this Anti-Price Matching Policy to its employees, but does not

disclose it to customers who attempt to apply for a price match under the policy. (Id.) 

Plaintiff alleges that Best Buy’s “Anti-Price Matching Policy” has been confirmed by former

Best Buy employees; that it is “disseminated from corporate headquarters and techniques and

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 Plaintiff alleges in the complaint that this specific practice is currently the focus of a 2

Connecticut Attorney General lawsuit. (Id. ¶ 4.) 

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barriers for denying proper price match requests are taught at Best Buy facilities.” (Id. ¶ 3.) Plaintiff

alleges that most “glaring” of these techniques is Best Buy’s use of a secret, false “intra-net” website

used on internal Best Buy kiosks bywhich prices aremanipulated in order to deny customers’ proper

price match requests. (Id. ¶ 4.) Plaintiff alleges that the Best Buy in-store kiosks purportedly shows 2

customers the Bestbuy.com website; however, according to Plaintiffs, the “Bestbuy.com” tab on the

kiosks actually brings consumers to a different electronic page that is configured to look exactly like

the Bestbuy.com website, but actually displays an internal website with the higher in store prices.

(Id.) The Best Buy price match guarantee states that any consumers who purchase items in the Best

Buy store are entitled to a lower price if found on the Bestbuy.com website. Plaintiffs allege that

“[t]he creation and design of the in-store kiosk computer screens were done at Best Buy’s corporate

direction.” 

Plaintiff alleges that “Best Buy settled on an impermissible middle ground: accept the ‘front

door’ benefits of using the price match guarantee in its advertising, promotions and as a sales closing

tool, while defending the ‘back door’ by ‘aggressively discouraging and denying customers’ proper

price match requests.” (Id. ¶ 28.) 

Plaintiff further alleges in the complaint that at least one former Best Buy supervisor has

remarked as follows: 

• Best Buy has an undisclosed Anti-Price Matching Policy; 

• The Anti-Price Matching Policy is disseminated from corporate headquarters; 

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 The majority of allegations in the complaint appear to be taken from the court’s 3

decision in Jermyn v. Best Buy Stores, L.P., 256 F.R.D. 418 (S.D.N.Y. Mar. 19, 2009), which

granted state-wide class certification for New York consumers on identical facts as here.

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• Barriers and techniques to proper price match requests are taught at Best Buy

facilities;

• Best Buy provides financial bonuses based, in part, on denying proper price match

requests; and 

• Best Buy denies more than 100 proper price match requests per store per week. 

The Complaint does not identify the former employee but ascribes the above statements to

him. 

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Plaintiff alleges that from approximately 2001 until July 17, 2005 Best Buy’s price match

guarantee was as follows: 

Price Guarantee We’ll beat their lowest price. If within 30 days (14

days for computers, monitors, notebook computers, printers,

camcorders, digital cameras and radar detectors) of your purchase

from Best buy, you find a local competitor (excluding Internet offers)

offering a lower price on an available product of the same brand and

model, we will refund the difference plus another 10% of the

difference.

Bring us verification of the lower price, plus your original Best Buy

receipt to claim your refund. Does not apply to specials, bonus or free

offers and in California, cellular phones and pagers.

After July 17, 2005, Best Buy’s “price match guarantee” was revised as follows:

Here are two more great reasons for you to shop with confidence at

Best Buy.

If you are about to make a purchase and discover a lower price than

ours, let us know and we'll match that price. Guaranteed.

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 Plaintiff quotes several comments made by Best Buy employees, but does not provide 4

the sources or identify any actual individuals in the complaint. However, a quick review of the

Southern District court’s decision in Jermyn reveals that these quotations are taken from

statements made in affidavits and during discovery in that case. Here, Plaintiff copies the

statements verbatim from the Jermyn opinion, but leaves out the sources and individuals who

made these remarks during the course of that litigation.

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Additionally, the Complaint alleges that if the product had been already purchased then Best Buy

provided that: 

We’ll refund you the price difference, plus an additional 10% of that

difference, up to 30 days after your purchase (14 days on select

categories; please refer to the 14 day return period selection). In

either case, simply bring in proof of the price on the same available

brand and model, from a local competitor.

Either way, simply bring in proof of a local retail competitor’s price

on the same available brand and model, and we’ll do the rest.

(Id. ¶ 35.) A “local retail competitor” meant “[a] retail store located in the same market area as your

local Best Buy store.” (Id.) Moreover, Plaintiffs allege that Best Buy “has defined a local competitor

as a store that is authorized to sell consumer electronics. It would not be a street vendor with a cart.

So a legitimate store.” (Id. ¶ 37.)4

According to the Amended Complaint, on October 19, 2006, Phil Britton, a member of Best

Buy’s Competitive Strategies Group wrote in a document,“Competition Insider Templates”:

Price Matches

It looms on the wall, on a 9 foot tall sign. Our Price Match policy.

There it is, plain as day, in English (Y en espanol para los de usted

que puede leerio.) However, just because it is our policy, do we abide

by it? Does it really help the customer?

What is the first thing we do when a customer comes in to our

humble box brandishing a competitor’s ad asking for a price match?

We attempt to build a case against the price match. (Trust me, I’ve

done it too). Let’s walk through the “Refused-Price Match Greatest

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Hits;”

Not same model? Not in stock at the competitor? Do we have a free

widget with purchase? Is it from a warehouse club (they have

membership fees, you know)? Limited Quantities? That competitor

is across town? We’ve got financing! Is it an internet price? It’s

below cost! What about my NOP?

(Id. ¶ 51.) Moreover, Plaintiff alleges that a document titled “Bundle Calculator” explains that

“When a Customer Requests We Match a Competitors Price”

- The tool will then need to calculate the expected profit (loss) on the

sale so the store employees can decide whether or not to match the

price.

- After reviewing the profit, the store could decide to accept, or reject, the

competitors [sic] price.

(Id. ¶ 52.) 

Plaintiff alleges three discrete events where he was wrongfully denied a price match request.

For all three incidents, Plaintiff alleges that he “devoted time and expended resources, including

money, traveling to, shopping at and dealing with Best Buy.” (Id. ¶¶ 68, 79, 91.)

First, in February 2008, Plaintiff alleges that he was aware of the price match guarantee and

he went to Best Buy in Woodbridge, New Jersey in order to apply for the guarantee. Plaintiff alleges

he visited a competitor’s store, P.C. Richard, shopping for a Toshiba television and found the same

brand and model for a lesser price. (Id. ¶¶ 60-68.) Plaintiff alleges that he brought verification of

the lower price to the Woodbridge store and requested that Best Buy match the valid price request.

(Id.) Plaintiff alleges that “Best Buy refused to honor its stated ‘price match guarantee.’” (Id.)

However, Plaintiff does not allege that he purchased the television at Best Buy or a different

location. 

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 There are currently at least three other pending federal court actions concerning the Best 5

Buy Price Match Guarantee. See Jermyn v. Best Buy Stores L.P., 256 F.R.D. 418 (S.D.N.Y.

2009); Laff v. Best Buy Stores, L.P. and Best Buy Co., Inc, No. 09 C 6649, 2010 WL 2220581

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Second, in July 2008, Plaintiff alleges that he once again returned to the Woodbridge store

after finding “a lower price on available product of the same brand and model, a television” at P.C.

Richard. Plaintiff again alleges that he was denied a price match request after profferring valid

verification of the lower price. Plaintiff simply identifies the item at issue as a “television.” (Id. ¶¶

71-79.) As with Plaintiff’s first alleged price-match denial, Plaintiff did not purchase the television

at Best Buy on this occasion. 

Third, in February 2009, Plaintiff found that Walmart, a local competitor, offered “a lower

price on an available product of the same brand and model, DVD movies.” Plaintiff visited Best Buy

in Bridgewater, New Jersey and requested that they match the lower price under the guarantee.

Plaintiff alleges he had a “valid price match request” and that Best Buy refused to honor his demand.

This is the only allegation in the Complaint where Plaintiff actually purchased the product at Best

Buy after being denied a price match request. Plaintiff does not allege how much the DVDs cost or

the difference in price with the DVDs at Walmart. 

II. DISCUSSION

Best Buy moves this Court to dismiss the complaint for failure to state a claim pursuant to

Rule 12(b)(6). Defendants spend a majority of their brief arguing that plaintiff’s class action

allegations should be dismissed. However, Plaintiff has not yet moved for class certification and no

class certification discovery has occurred. The case is still at its initial pleading stages. While in

some cases it may be appropriate pursuant to Rule 12(b)(6) to dismiss class pleadings that are

entirely inadequate, this is not such a case. Plaintiff has sufficiently alleged a putative class action 5

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(N.D. Ill. June 3, 2010); Truong, et al. v. Best Buy Stores, L.P., et al., No. SACV 09-00997-JVS

(MLGx), (C.D. Cal. June 7, 2007). As of this writing, at least one court has granted a state-wide

class action on similar if not identical facts. See Jermyn, 256 F.R.D. 418. 

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to survive the pleading stage. Defendants arguments against class certification should be reserved

for a more appropriate time, and will not be considered here. Best Buy makes the following

arguments in favor of dismissal: 

(1) Plaintiff fails to plead fraud with particularity as required by Rule 9(b) as it relates to

Plaintiff’s NJCFA claims. (2) Plaintiff has failed to sufficiently plead facts that demonstrate he

qualified for a price match guarantee; (3) Plaintiff fails to adequately plead the elements for

consumer fraud, breach of good faith and fair dealing, or unjust enrichment. 

A. Motion to Dismiss–Standard of Review

On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court is

required to accept as true all allegations in the complaint and all reasonable inferences that can be

drawn therefrom, and to view them in the light most favorable to the non-moving party. See, e.g.,

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A

complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. Iqbal, 129

S.Ct. at 1950.

While a court will accept well-pled allegations as true for the purposes of the motion, it will

not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal

conclusions cast in the form of factual allegations. See Iqbal, 129 S. Ct. at 1949; Morse v. Lower

Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). “The pleader is required to ‘set forth sufficient

information to outline the elements of his claim or to permit inferences to be drawn that these

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elements exist.’” Kost v. Kozakewicz, 1 F.3d 176, 183 (3d Cir.1993) (quoting 5A Wright & Miller,

Fed. Practice & Procedure: Civil 2d § 1357 at 340). The Supreme Court has held that “[w]hile a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,

a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do,

. . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . on

the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,

550 U.S. at 555 (internal citations and quotations omitted); see also Iqbal, 129 S. Ct. at 1949-50.

The New Jersey Consumer Fraud Act

NJCFA claims are subject to the heightened pleading standards of Rule 9(b). Nelson v. Xacta

3000 Inc., Civil Action No. 08-5426, 2010 WL 1931251, at *4-5 (D.N.J. May 12, 2010). Rule 9(b)

requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake

shall be stated with particularity.” Fed. R. Civ. P. 9(b); see Sheris v. Nissan N. Am., Inc., No.

07-2516, 2008 WL 2354908, at *6 (D.N.J. June 3, 2008); Parker v. Howmedica Osteonics Corp.,

No. 07-2400, 2008 WL 141628, at *2 (D.N.J. Jan.14, 2008) (“[NJ]CFA claims sounding in fraud

are subject to the particularity requirements of Federal Rule of Civil Procedure 9(b).”) (quotation

omitted).

“The purpose of Rule 9(b) is to provide notice of the precise misconduct with which the

defendants are charged and to prevent false or unsubstantiated charges.” Rolo v. City Inv. Co.

Liquidating Trust, 155 F.3d 644, 658 (3d Cir.1998) (internal quotation and citation omitted). “To

satisfy this standard, the plaintiff must plead or allege the date, time, and place of the alleged fraud

or otherwise inject precision or some measure of substantiation into a fraud allegation.” Frederico

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 The term “person” as used in the NJCFA includes, inter alia, natural persons, 6

partnerships, corporations, companies, trusts, business entities and associations. N.J.S.A. §

56:8-1(d).

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v. Home Depot, 507 F.3d 188, 200 (3d Cir.2007). Additionally, the allegations must state “who

made a misrepresentation to whom and the general content of the misrepresentation.” Lum v. Bank

of Am., 361 F.3d 217, 224 (3d Cir.2004). “If this specific information is not readily available, a

plaintiff may use ‘alternative means of injecting precision and some measure of substantiation into

their allegations of fraud.’” Nelson, 2010 WL 1931251 at *5 (citing In re Rockefeller Ctr. Props.

Sec. Litig., 311 F.3d 198, 216 (3d Cir.2002)).

Best Buy alleges that Plaintiff fails to allege whether any of his three price match attempts

were for particular products that were in stock, or whether the requests were made within the

applicable time periods. Additionally, Best Buy argues that Plaintiff fails to identify the exact brand

and model of each product.

Plaintiff need not provide all possible facts or prove his entire case at the pleading stage. He

must simply plead, with sufficient particularity, the elements of the NJCFA. 

The NJCFA provides in relevant part:

The act, use or employment by any person of any unconscionable

commercial practice, deception, fraud, false pretense, false promise,

misrepresentation, or the knowing, concealment, suppression, or

omission of any material fact with intent that others rely upon such

concealment, suppression or omission, in connection with the sale or

advertisement of any merchandise or real estate, or with the

subsequent performance of such person as aforesaid, whether or not

any person has in fact been misled, deceived or damaged thereby, is

declared to be an unlawful practice.

N.J.S.A. § 56:8-2. Pursuant to the NJCFA claim, a plaintiff must allege the following elements:

6

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“(1) unlawful conduct by defendant; (2) an ascertainable loss by plaintiff[s]; and (3) a causal

relationship between the unlawful conduct and the ascertainable loss.” Bosland v. Warnock Dodge,

Inc., 197 N.J. 543, 964 A.2d 741, 749 (2009). 

“Unlawful practices under the NJCFA fall into three general categories: affirmative acts,

knowing omissions, and regulation violations.” Nelson, 2010 WL 1931251 at *5-6 (citing

Frederico, 507 F.3d at 202). Moreover, an “[i]ntent to defraud is not necessary to show unlawful

conduct by an affirmative act of the defendant, but is an element of unlawful practice by knowing

omission of the defendant.” Id. (citing Torres-Hernandez v. CVT Prepaid Solutions, Inc., No.

08-1057, 2008 WL 5381227, at *6 (D.N.J. Dec.17, 2008)).

Plaintiff sufficiently alleges unlawful conduct. He alleges that Best Buy had in place an

undisclosed policy that was intended to subvert customers’ attempts to comply with the price match

guarantee. He alleges when the policy went into effect, the purpose of the anti-price matching

policy, and alleges remarks by several former employees corroborating the claims. He also alleges

a pervasive history of complaints to Best Buy by consumers that had been wrongly rejected under

the price match guarantee. As to his own circumstances, when he attempted to make a request under

the price match guarantee (February 2008, July 2008, and February 2009); he alleges the specific

locations he visited in New Jersey (Woodbridge and Bridgewater) and he alleges that he brought

verification of lower prices from two vendors that qualified under the policy (P.C. Richard and

Walmart) and that he was denied the price match. This is enough at the pleading stage to satisfy

Rule 9(b). Best Buy’s arguments for dismissal, such as whether the claims were within the correct

time period or whether alternate reasons existed for the denial are more appropriate considerations

at summary judgment after the facts have been adduced. 

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 Plaintiff conclusorily alleges that he expended fuel and driving time in going to Best 7

Buy to make the price match request. This is clearly insufficient to plead a NJCFA claim. Such

a broad and vague understanding of “ascertainable loss” would vitiate the entire requirement of

showing actual loss. Ascertainable loss must be something “quantifiable or measurable.” See

Dibenedetto v. Sparta Transmissions & Auto Repair, Inc., 2007 WL 2580506, at *6 (N.J. App.

Div. Sept. 10, 2007). Inconvenience alone is not an ascertainable loss. Id. (holding that while

plaintiffs demonstrated they were inconvenienced, that did not equal ascertainable loss).

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In the instant case, Plaintiff’s difficulty lies with proving he suffered an “ascertainable loss.”

Plaintiff alleges he made three price match requeststo Best Buy in 2008 and 2009. However, in only

one instance does Plaintiff allege that he made a purchase at Best Buy. In February 2008 and July

2008, Plaintiff alleges he was denied a price match by Best Buy (both times regarding televisions),

but he never made any purchases at Best Buy. Only in connection with the third price match request

in February 2009 did he actually purchase the product at the allegedly higher price. In order to prove

“ascertainable loss” under the NJCFA, Plaintiff must be able to prove he suffered actual damage.

See Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005). Accordingly, under the

NJCFA, “a private plaintiff must produce evidence from which a factfinder could find or infer that

the plaintiff suffered an actual loss.” Id. Plaintiff is unable to demonstrate any actual loss with his

first two price match requests. Therefore, the Court dismisses Plaintiff’s NJCFA claim as to the 7

allegations regarding the February 2008 and July 2008 price match requests. Likewise, because

Plaintiff did not purchase any Best Buy products during these instances, he would be unable to

demonstrate that Best Buy was unjustly enriched by any benefit. Therefore, as to Plaintiff’s fourth

count for unjust enrichment, the allegations as to February 2008 and July 2008 are similarly

dismissed. 

Breach of Good Faith and Fair Dealing

Plaintiff alleges a claim for a “breach of good faith and faith dealing.” This claim is

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misplaced, however, because it is dependent on the existence of a written contract, which is not pled.

Pursuant to New Jersey law, in every contract there is an implied covenant of good faith and fair

dealing. See Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997). In order to allege a

“breach of good faith and fair dealing” it is necessary that an actual contract exists between the

parties. DiCarlo v. St. Mary Hosp., 530 F.3d 255, 266 (3d Cir. 2008) (“The court dismissed [the

breach of good faith and fair dealing claim] because of the plaintiffs’ inability to demonstrate the

existence of a contract between the hospitals and the government entities.”); accord J.M. ex rel. A.M.

v. East Greenwich Tp. Bd. of Educ., 2008 WL 819968, at *9(D.N.J. 2008) (“The covenant of good

faith and fair dealing is implied in every contract in New Jersey; thus, it is axiomatic that a contract

must exist between two parties before a court will infer this covenant.”) Plaintiff does not allege the

existence of a contract with Best Buy that would allow a claim for a breach of good faith and fair

dealing. Therefore, Plaintiff’s second count is dismissed.

CONCLUSION

For the foregoing reasons, the Court grants Defendants’ motion to dismiss Count I (NJCFA)

and Count IV (unjust enrichment) only as to the first two price match requests and denies it as to the

February 2009 price match request. Count two is dismissed in its entirety. Plaintiff’s third and fifth

causes of action request declaratory and injunctive relief. These remedies are dependent on the

claims the Court has allowed to move forward. Therefore, Defendant’s motion to dismiss these two

counts is denied. 

s/Peter G. Sheridan 

PETER G. SHERIDAN, U.S.D.J. 

August 31, 2010

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