MEMORANDUM DECISION and ORDER I. INTRODUCTION On March 30, 2022, named plaintiffs Maureen Dunham (“Dunham” or “plaintiff”) and Frank Novak (“Novak”), brought this action on behalf of themselves and others similarly situated, alleging that defendant, The Sherwin-Williams Company (“Sherwin-Williams” or “defendant”), engaged in a deceptive bait-and-switch scheme of covertly tacking on a hidden 4 percent “Supply Chain Charge” to every sales transaction. Dkt. No. 1. The complaint asserted four claims: (1) deceptive acts or practices in violation of the New York General Business Law §349; (2) violation of the Michigan Consumer Protection Act; (3) breach of contract; and (4) unjust enrichment. Id. On May 31, 2022, Sherwin-Williams moved to dismiss the complaint under Rules 12(b)(6) and 12(b)(2) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted and lack of personal jurisdiction. Dkt. No. 12. On June 21, 2022, in lieu of an opposition, Dunham filed a First Amended Complaint. Dkt. No. 21. The amended pleading removes Novak as a named plaintiff and no longer asserts a violation of the Michigan Consumer Protection Act. Id. Accordingly, plaintiff’s operative complaint now asserts three claims: (1) deceptive acts or practices in violation of the New York General Business Law §349; (2) breach of contract; and (3) unjust enrichment. Id. On July 5, 2022, Sherwin-Williams moved under Rule 12(b)(6) to dismiss the First Amended Complaint. Dkt. No. 22. The motion has been fully briefed and will be considered on the basis of the submissions without oral argument. II. BACKGROUND On September 28, 2021, Sherwin-Williams’ Chairman, President, and Chief Executive Officer, John G. Morikis, made a public statement to Sherwin-Williams investors that manufacturing costs were rising due to a limited availability of raw materials. First Am. Compl. 14. In response to the rise in costs, defendant began imposing a 4 percent “Supply Chain Charge” to all items purchased by customers. Id. 16. On November 9, 2021, Dunham, in reliance “upon price tags and displays provided in-store,” purchased two gallons of paint for $119.59 at a Sherwin-Williams store located in Amsterdam, New York. First Am. Compl.
37-38. As part of this transaction, plaintiff was charged a 4 percent “Supply Chain Charge” for each gallon of paint, amounting to $4.65. Id. 39. According to plaintiff, she did not realize that Sherwin-Williams would affix a price increase on her transaction and was first made aware of the surcharge upon examining her purchase receipt. Id.
