Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—NDIll: Retailer Not Liable For Advertising Normal Retail Price as a Sale Price, (Feb 8, 2013)

By Jody Coultas, J.D.

A clothing store customer could not state Illinois Consumer Fraud and Deceptive Business Practices Act (CFA) or 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, according to the federal district court in Chicago (Camasta v. Jos. A. Bank Clothiers, Inc., February 7, 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.

Actual harm. The court dismissed the CFA claim for failure to pled harm other than defeated expectation, which did not constitute actual harm under the CFA. To plead actual harm, customers must allege that the clothing was defective or worth less than the purchase price or that they could have shopped around and obtained a better price in the marketplace. Here, the customer agreed to purchase the clothing for a certain price and could not show that the value of the clothing was less than the value of what he was promised. A customer does not experience actual damage when he does not receive as much of a discount as expected based on the retailer’s representations.

Standing. Because the customer lacked standing to pursue injunctive relief, the court dismissed the UDTPA claim for lack of standing. The only available relief under the UDTPA is injunctive relief. The customer’s argument that he has alleged future damages based on a substantial danger that the wrongful retail practices will continue was rejected. Once the customer became aware of the advertisements, he could not be induced to purchase clothing in the future. The customer also could not plead on behalf of the proposed class to protect them from future harm.

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 Clothier, Inc.

Companies: Jos. A. Bank Clothier, Inc.

Cases: StateUnfairTradePractices IllinoisNews