Linens ‘n’ Things ran a loss leader in their Sunday newspaper insert here in the Dallas area that appears to be a case of bait and switch. They advertised a Thermos 40,000 BTU Stainless Steel BBQ Grill for $249.99. In the same flyer, they printed a 20% off coupon good for “any single item.” The coupon contained a number of limitations, none of which appear to apply to the BBQ. The warygirlfriend pointed out that this would be an excellent christmas present as well as an excellent value. As detailed below, I tried to purchase the grill for 20% off, but was rebuffed. My rebuffedness continues despite a nice letter of complaint and an email correspondence with their customer service representative, which I have posted below. I’ll post any updates as well. I’ve asked to speak to someone with authority to make a different decision, but I don’t expect to hear back.
I’m posting about it here because 1) I’m kinda mad, and 2) there are good consumer law issues to discuss, directly applicable to the holiday shopping season.
Bait and switch is one of the most commonly recognized terms in consumer law, certainly more common than say, ECOA adverse action notice. Bait and switch can take a number of forms. Linens ‘n’ Things’ ad covers two of them.
The Texas Deceptive Trade Practices Act (”DTPA”) prohibits “advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements disclosed a limitation of quantity.” Tex. Bus. & Com. Code § 17.46(b)(10). In this case, the first Linens ‘n’ Things store I went to was out of stock on this loss leader item within just a few hours of the publication of the insert, despite the fact that the prices advertised were in effect from December 4-11. As the first Linens ‘n’ Things employee was helping me locate a store with a grill in stock, her computer display showed most stores in the Texas market were reporting single digit quantities. The Galleria store she referred me to listed 12 units in stock, but she told me that the computer numbers often lag actual inventory. While a prosecuting attorney would have to investigate the circumstances to determine whether the failure to have an adequate inventory was intentional, the circumstances here are suspicious.
The DTPA also prohibits “making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions.” Tex. Bus. & Com. Code § 17.46(b)(11). In this case, the Linens ‘n’ Things coupon is misleading because it clearly states that 20% can be taken off the sale price of “any single item” and none of the limitations contained on the face of the coupon apply to the grill. When evaluating whether an advertisement is deceptive, the general rule is that only clarifying information presented in the advertisement is considered. Additional limitations or disclosures published in the store are generally not considered. This is particularly true when the allegation is bait and switch advertising, as the reason such advertising is prohibited is that it lures consumers into stores under false pretenses. Accordingly, the in store signs indicating no further discounts could be taken on the grill are inadequate to save Linens ‘n’ Things from violation of this anti-bait and switch provision of the DTPA.
Rain Checks
The first Linens ‘n’ Things employee told me there were no rain checks available on the grill. Nothing in the DTPA requires a retailer to give a rain check when out of stock on an advertised item. Moreover, the offering of a rain check on an advertised item is not a defense to a charge of bait and switch advertising under either of the above-listed DTPA provisions. However, as a practical matter, it is a good way to preserve customer good will, and it will bolster a retailer’s argument that it did not intend to go out of stock on the advertised item, an element of the prosecutor’s case under the first bait and switch provision of the DTPA. For an individual consumer, as long as the rain check can be fulfilled reasonably promptly, the rain check goes a long way towards eliminating any harm caused by the failure to have adequate stock. It would be very difficult for such a consumer to prove any damages in any lawsuit that might be filed over the ad.
The bottom line: the law is very much in harmony with common sense. If you are a retailer and you advertise something for sale, you need to have it on hand and sell it as advertised. Anything less, and you are potentially in legal jeopardy. If you are a consumer, you have the right to walk into a store knowing that the advertised item will be there and that you can purchase it for the price advertised.
Enjoy your holiday shopping!
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Note: While I was writing this post, Mr. Cesano called me on the phone. He affirmed his last email message, but did offer to put me through to the voicemail of Tony Vardiman, who he said might have authority to make a different decision. While I’m not happy with Linens ‘n’ Things’ handling of this matter, I certainly can’t fault the speed with which they have responded to my complaint. Thank you Mr. Cesano for your prompt correspondence, even if the result was not to my liking.
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My email correspondence with Linens ‘n’ Things:
I am very disappointed with the experience I had trying to purchase an item advertised in your December 2005 newspaper insert.
The front page of the insert features a Thermos 4000 BTU BBQ Grill for $249.99. The last page of the insert features a “20% off any single item” coupon. My girlfriend saw the flyer and told me the BBQ would make an excellent Christmas gift for her. She pointed out the coupon as well. I looked at the coupon carefully (I am a consumer lawyer after all) and noted that none of the restrictions on the coupon applied to the advertised BBQ.
I drove to your North Central store in Dallas. A helpful employee told me that the BBQ was sold out and that you have no raincheck policy. While the consumer lawyer in me was disturbed that you were sold out of a featured item in an insert within just a few hours after the insert was published and that you have a no raincheck policy, your employee offered to see if she could find one in another store for me. After a few minutes, she located one in your Dallas Galleria store and had it put on hold for me. I wish I could remember her name because she went out of her way to be helpful.
I drove to the Galleria store where another helpful employee found a dolly and fetched the BBQ to the front of the store while I waited. When I tried to check out, I presented the coupon, only to be told that I couldn’t use it with the BBQ because it was already discounted. I asked the cashier to double check. She spoke with another employee, Kevin, who appeared to be a supervisor or manager. Kevin also told me that the coupon could not be used. I pointed out that the coupon said it could be used with “any item” and that none of the restrictions on the coupon matched what he was telling me in the store. He would not change his position. I decided not to buy the BBQ.
I regret not buying the BBQ. I was angry and didn’t want to give in to what I thought was an unfair situation. If possible, I would still like to buy this BBQ, but I feel it is only fair that you sell it to me as advertised, for 20% off of the $249.99 price, or $199.99. Having already driven to two different stores amid holiday shopping traffic, it would be ideal if you would have the BBQ delivered to my girlfriend’s house at no charge, but I would be satisfied if you simply give me the address of a North Dallas store where I can go to purchase the item at the proper price.
Please call me at (214) 855-9355 or email me to let me know what you are willing to do about this situation.
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Thank you for contacting us regarding the Thermos Stainless Grill advertised in our recent flyer. Please be advised that due to the enormous discount that we are offering on this item, we cannot accept any coupons or discounts. This was prominently marked both in the store and on the product. The price on this grill was sold to you, our valued guest, at cost pricing. If you can find this item at a better price, we will gladly match it. Thank you for bringing this to our attention.
Guest Services Linens n’ Things
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Paul-
Thank you for your prompt response.
Kevin, your employee at the Galleria store, also informed me that the item was marked in the store as not subject to further discounts. Of course, I never walked far enough into the store to actually see the signs he referred to because I found out about the BBQ from your ad and another employee had called and put the BBQ on hold for me. Even if I had seen the signs, that would not address my concern.
I went to your store, actually to 2 of your stores, because of the advertising. I’m sure that if you consult with whoever reviews your advertising for legal compliance they will tell you that in-store disclosures cannot be used to contradict advertised offers.
I still would like to purchase this BBQ as advertised.
Craig
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Not sure what you are looking for me to do at this point?
Thank you, Paul Cesano
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I’d like you to locate one of these units in the North Dallas area, have it put on hold for me, and let me pay $199.99 for it.
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This item is currently selling for $249.99 and we would not accept a coupon on this item as we are selling this item at below cost. Please contact your local Linens N Things on the availability of this item.
Thank you, Paul Cesano