I thought you guys might be interested to read about this unsuccessful lawsuit:
Court Rebuffs NY Lawyer's Attempt to Sue Retailer Over DVD Player Offer
New York Lawyer
February 20, 2007
By Rosamaria Mancini
New York Law Journal
A consumer who purchased $100 worth of Dockers-branded apparel did not sustain an injury when he received a seven-inch DVD player instead of the promised eight-inch player as part of a rebate offer, a Nassau judge has ruled.
Acting Supreme Court Justice Thomas A. Adams, in Weinstock v. J.C. Penney Co., 15578/2006, granted department store retailer JCPenney's motion to dismiss attorney Benjamin Weinstock's complaint because he failed to state a valid cause of action, therefore denying his application for class action certification.
Levi Strauss & Co., which manufactures Dockers and offered the rebate in conjunction with JCPenney, also was named as a defendant in the suit.
"I'm not a litigious person . . . this is just a situation that got under my skin, and I felt I had to do something about it because it was a misleading promotion," Mr. Weinstock said in an interview.
Beginning on June 4, 2006, JCPenney offered to consumers who purchased $100 or more "in qualifying Dockers Men's apparel at a participating JCPenney department store or online at jcp.com" a portable DVD player by mail. The online specifications described the gift as an "8 inch" portable DVD player with a "TV receiver."
Mr. Weinstock purchased the appropriate amount of merchandise, but in August 2006 he received a seven-inch player without a TV receiver.
On Aug. 24, Mr. Weinstock, an attorney at Uniondale-based Ruskin Moscou Faltischek, filed the class action suit in federal court. On Sept. 21, Southern District Judge Deborah A. Batts dismissed the suit, noting that Mr. Weinstock and the proposed class of "at least 40 persons" did not meet the required $5 million jurisdictional amount for such an action.
Indeed, the judge said, "this would be the case were there four-hundred or four-thousand people in the putative class."
Mr. Weinstock then brought his case to state Supreme Court.
He is not the only consumer up in arms about the rebate. The offer has been a subject of discussion on several Web sites, including [SD] and wikipost.com, in which participants have complained about how the DVD player they received did not conform to the description of the one promised.
Mr. Weinstock complained to JCPenney's customer service department, which notified him on Sept. 1, 2006, that it would exchange an eight-inch player for the seven-inch player. He received the replacement on Oct. 9, but the original player was never picked up. Mr. Weinstock said he has opened neither player.
On Oct. 11, Mr. Weinstock filed his complaint in Supreme Court arguing a breach of contract and a violation of General Business Law 349 "by offering one product and substituting another product of lesser value."
JCPenney argued that Mr. Weinstock failed to state a valid cause of action, noting the promotion's terms and conditions, which said "if the gift-with-purchase item should be unavailable, [defendants] reserve the right to replace the item with a product of comparable value."
Justice Adams said even though the seven-inch player does not have a TV receiver, it has additional features, which the eight-inch player does not have.
"Therefore, even assuming, arguendo, it does not have comparable features, it is reportedly of 'comparable value,'" he said.
The judge noted that for Mr. Weinstock to prevail, he needed to prove the defendant's claim must be predicated on a deceptive act or practice that is "consumer oriented" and he had to establish that he sustained an actual injury.
"Here since the gifts appear to be of comparable value, the plaintiff did not incur an actual injury," the judge said. "Indeed, by retaining both players, he was enriched. The defendants have therefore 'established that they did nothing materially deceptive or misleading which causes the [plaintiff] to sustain an actual injury.'"
Mr. Weinstock said he does not plan to appeal and hopes JCPenney and Levi Strauss replace non-conforming DVD players for those customers who requested replacements.
"In that regard, I consider my lawsuit a victory," he said.
Lawrence Katz of Uniondale-based Katz & Kleinman represented Mr. Weinstock.
Manhattan-based Ahmuty, Demers & McManus represented JCPenney. Neither the law firm nor JCPenney returned a call for comment. |
