Defending a “Fictitious Pricing” Class Action

July 29, 2016Articles The Whisper

Peter D. Stiteler authored The Whisper article, "Defending a “Fictitious Pricing” Class Action."

Have you ever purchased an item on sale?  If so, you could be the next named plaintiff in a class action worth tens of millions of dollars.

For example, in Spann v. J.C. Penney Corp., Cynthia Spann visited a JC Penney store in Brea, California and purchased, among other things, three blouses that were part of JC Penney’s private collection and were marked down from $30 to $17.99.  307 F.R.D. 508, 513 (C.D. Cal. 2015).  But those blouses were not generally sold at $30; rather, they had been offered at $17.99 for at least the three months preceding Spann’s purchase of them.  Based on this, Spann filed a class action suit against JC Penney, alleging that it had mislead her by advertising the skirts as being worth $30 when in fact they were worth far less, and accordingly had violated several of California’s consumer protection statutes.  Moreover, Spann alleged that JC Penney had perpetrated its fictitious pricing scheme against all purchasers of its private branded apparel and accessories.  Based on these allegations, Spann successfully sought to represent all California individuals who purchased any private or exclusive branded apparel or accessories advertised as at least 30% off the “original” or “regular” price.  The case only resolved in 2016 when JC Penney settled for $50 million.

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