## Facts

- Equilon Enterprises, LLC (Shell Oil Products US) ran a “Ski Free” gasoline promotion at Shell-branded service stations.
- Station signage stated: “BUY 10 GALLONS OF FUEL, GET A VOUCHER FOR A FREE LIFT TICKET!”
- Plaintiff John Martin Kearney alleged this signage was the only promotion he saw before purchasing fuel.
- The promotion’s voucher allegedly functioned only as a two-for-one offer requiring purchase of a full-price lift ticket to obtain a second ticket free.
- Plaintiffs alleged the signage conveyed that buying ten gallons entitled the consumer to a voucher redeemable for a free lift ticket without any additional purchase.
- Plaintiffs brought a proposed nationwide class action alleging, among other claims, breach of contract and multiple state consumer-protection/statutory unfair practices claims based on deception.
- Defendant moved to dismiss under Rule 12(b)(6), arguing the advertisement was not an offer and that misrepresentation-based statutory claims were not pled with Rule 9(b) specificity.

## Issues

1. Whether the promotion signage was sufficiently definite to constitute an offer for a unilateral contract accepted by purchasing ten gallons of fuel, supporting a plausible breach of contract claim.
2. Whether plaintiffs’ deception-based state consumer-protection/unfair practices claims were subject to Rule 9(b) and, if so, whether they were pled with adequate particularity.

## Decision

- The court denied dismissal of the nationwide breach of contract claim, holding the signage plausibly alleged a clear, reward-like unilateral offer accepted by performance.
- The court granted dismissal of the state statutory consumer/unfair practices claims because they sounded in fraud and did not satisfy Rule 9(b)’s particularity requirement.
- The statutory claims were dismissed without prejudice, and plaintiffs were permitted to amend to plead the alleged misrepresentations and reliance with greater specificity.

## Legal Principles

- Advertisements are generally invitations to negotiate, but an advertisement may constitute an offer when it is clear, definite, explicit, and leaves nothing open for negotiation.
- A unilateral contract may be formed where an advertiser promises performance in exchange for requested conduct, and the offeree accepts by completing that conduct.
- At the Rule 12(b)(6) stage, a court accepts well-pleaded factual allegations as true and assesses whether the claim is plausibly stated.
- Consumer-protection and unfair practices claims premised on deceptive advertising may be treated as fraud-based and must satisfy Rule 9(b).
- Rule 9(b) requires pleading the circumstances of the alleged fraud with particularity, including concrete details of the misrepresentation, how it was encountered, reliance, and resulting injury.

## Conclusion

The court held that the gasoline-promotion signage plausibly stated a unilateral contract offer accepted by purchasing ten gallons of fuel, allowing the breach of contract claim to proceed, while dismissing deception-based statutory claims for failure to plead fraud-like allegations with Rule 9(b) specificity.


Kearney v. Equilon Enters., LLC, 65 F. Supp. 3d 1033 (D. Or. 2014)