Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—N.D. Ill.: Retailer not liable for advertising normal retail price as sale price, (Jul 26, 2013)

By Jody Coultas, J.D.

The federal district court in Chicago dismissed with prejudice a clothing store customer’s Illinois Consumer Fraud and Deceptive Business Practices Act (CFA) and Uniform Deceptive Trade Practices Act (UDTPA) claims against Jos. A. Bank Clothiers, Inc. (JAB) based on alleged advertising of the normal retail price of its clothes as a temporary price reduction (Camasta v. Jos. A. Bank Clothiers, Inc., July 25, 2013, St. Eve, A.).

Noticing an advertisement that certain shirts were on sale at JAB, the purchaser bought two shirts and received four shirts for free. The purchaser learned later that the sale was in fact not a temporary price reduction, but that JAB advertised the normal retail price as a sale price. According to the complaint, the purchaser would not have been induced to purchase, could have purchased for less than the amount paid, or could have gone to another retail store for a true sale price of a comparable item had he not seen the advertisement.

After dismissing the customer’s claim for failure to show any actual harm under the CFA or standing to pursue injunctive relief under the UDTPA, the court granted leave to amend.

Because the customer was unable to correct the issues from the first complaint, the court dismissed the case with prejudice. The purchaser merely argued that he has pleaded the “who, what, when, where, and how” to satisfy the heightened pleading standard of Federal Rule of Civil Procedure 9(b). He did not explain or analyze how he fulfilled the Rule 9(b) requirements. The customer saw an advertisement that said “sale prices,” but failed to identify the content of the advertisement or the manner in which he learned the price was not a temporary reduction. The customer also failed to show JAB’s pattern and practice of advertising to Illinois consumers.

Actual harm. The customer also failed to show any actual harm suffered by the allegedly deceptive business practices, according to the court. An actual injury under the CFA occurs if the seller’s deception deprives the plaintiff of the benefit of her bargain by causing the consumer to pay more than the actual value of the property. The alleged injury in this case stemmed from consumers being induced to purchase the clothing at the sale price rather than going to another store for a true sale price item. Such an injury was too speculative to withstand the motion to dismiss.

Also, the consumer’s argument that he paid $87.50 for a shirt worth $29.16 and $79.50 for a shirt worth $26.50, and thus paid more than the shirts were worth, did not actually prove that he paid more than the value of the shirts because he merely guessed what the shirts were worth.

The case is No. 12 C 7782.

Attorneys: Brian J. Wanca (Anderson & Wanca) for Patrick Edward Camasta. Edward Calvin Matthews, IV (Guilfoil Petzall & Shoemake, L.L.C.) for Jos. A. Bank Clothiers, Inc.

Companies: Jos. A. Bank Clothiers, Inc.

Cases: Advertising StateUnfairTradePractices IllinoisNews