Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—7th Cir.: Jos. A. Bank evades claims over supposedly deceptive sales, (Aug 4, 2014)

By Greg Hammond, J.D.

A consumer that purchased six shirts based on an allegedly deceptive promotion from retailer Jos. A. Bank Clothiers, Inc., failed to support claims under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). In affirming the lower court’s decision to dismiss the case, the U.S. Court of Appeals in Chicago determined that the consumer’s complaint did not meet the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) (Camasta v. Jos. A. Bank Clothiers, Inc., August 1, 2014, Bauer, W.).

Background. Patrick E. Camasta visited a Jos. A. Bank store and purchased six shirts, based on a “buy one shirt, get two shirts free” promotion. However, after his purchase, Camasta allegedly learned that the promotion was not an actual sale, but was the company’s pattern and practice to advertise normal retail prices as temporary price reductions. He consequently filed a putative class action against the clothing store, alleging violations of the ICFA. The lower court dismissed the case, and Camasta appealed.

Insufficient claims. To support the heightened pleading requirements of Rule 9(b), Camasta was required to demonstrate the identity of the person making the misrepresentation; the time, place, and content of the misrepresentation; and the method by which the misrepresentation was communicated to him. However, according to the court, all Camasta provided was an allegation that the “merchandise was offered at ‘sales prices’” and a sales receipt. The court determined that, under the heightened pleading requirements of Rule 9(b), the statement and receipt were insufficient to substantiate a finding of deceptive or unfair acts or promises.

Camasta also raised a 2004 Assurance of Discontinuation that Jos. A. Bank entered into with the New York Attorney General, which resulted from an investigation of the company’s sales practices. However, the Assurance of Discontinuation was inapplicable in this case, as Camasta failed to demonstrate how the company’s advertising practices that were subject to the investigation were the same or similar to its current practices.

In addition to the ICFA claim, Camasta sought actual damages and injunctive relief. However, these were both properly denied, as: (1) he failed to provide any evidence that he paid more than the actual value of the merchandise he received; and (2) he is now aware of Jos. A. Bank’s sales practices, and is not likely to be harmed by such practices in the future. The court therefore affirmed the lower court’s decision dismissing the case.

The case number is 13-2831.

Attorneys: David M. Oppenheim (Anderson & Wanca) for Patrick E. Camasta. Timothy J. McCaffrey (Pircher, Nichols & Meeks) and Eric M. Walter (Guilfoil, Petzall & Shoemake) for Jos. A. Bank Clothiers, Inc.

Companies: Jos. A. Bank Clothiers, Inc.

Cases: StateUnfairTradePractices Advertising IllinoisNews IndianaNews WisconsinNews