Facepalm (Caïn by Henri Vidal, Tuileries Garden, Paris, 1896. )
How about where a retailer sells an item, calling the price, a “sexy price” and a “crazy give-away” at $179.99? Can a consumer sue, claiming the price is not sexy, the price is not crazy, and the product is not being given away?
I am generally pro-consumer and skeptical of the tactics of businesses, which sometimes cross the line and exploit consumers. I think that a strong consumer rights voice is critical to counter the deceitful and exploitative excesses that market forces cause some people and some businesses to succumb to. On the other hand, consumer rights advocates cross the line themselves and do us all a disservice (sometimes outrageously, in my opinion (as in some ATM fee disclosure litigation, for example)).
This week, a consumer rights class action fraud case against Best Buy has been dismissed. Plaintiff Randy Nunez’s complaint was that the microwave he supposedly bought “on sale” for $179.99, marked down from $199.99, had not been sold at retail for $199.99 for the three months preceding his purchase. So, he argues, he was defrauded.
In fact, under California consumer laws, if Mr. Nunez actually had proof of his allegation, that would be a viable consumer fraud claim. (See the linked order, p.8, footnote 4). But the problem with Mr. Nunez’s claim extended far beyond Best Buy’s pricing practices. Rather, it seems that Mr. Nunez provided no evidence of when he bought the microwave, or where he bought it, or any evidence that it was not sold for $199.99 in the three months before he bought it for $179.99!
In my opinion, plaintiffs’ consumer rights lawyers hurt themselves and their constituency (that is, you and me) when they bring weak lawsuits. They undermine their own credibility and they make pressing the cause of consumer rights, whether on the legislative front or the judicial front, much more difficult.
The claim that someone is the victim of “fraud” when they buy an item for “$X, marked down from >$X” is pretty weak even if you have evidence that no markdown occurred. But when you bring the claim and your named plaintiff cannot even come up with when and where he bought the item???