A group of U.S. Circuit Court of Appeals judges have ruled that a woman failed to show a significant loss on purchases from Old Navy that she claimed were “deceptively advertised.”
The ruling came after plaintiff Jill Hennessey filed a class-action lawsuit in the U.S. District Court for the Eastern District of Missouri against the retailer and its parent company, The Gap, Inc. Hennessey’s suit alleged that Old Navy’s sale prices were deceptive since the retailer never sold a large quantity of the sale products at their regular price.
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Hennessey’s complaint detailed three specific transactions including at least 21 items such as a crewneck T-shirt with a regular price of $14.99 and a sale price of $7.49. Hennessey claimed the prices were “false and misleading” and in violation of the Missouri Merchandising Practices Act that requires retailers to present actual, bona fide prices. She made that argument based on the belief that the fair market value at the time of her purchase was significantly lower than the advertised regular price and maybe even the discounted price.
In her lawsuit, Hennessey sought to recover the difference between the actual value and the $14.99 value, as well as the price she paid for the items.
In the initial ruling, Judge Sarah E. Pitlyk found that Hennessey’s lawsuit failed to meet the requirements of the Missouri Merchandising Practices Act, saying the plaintiff did not “suffer an ascertainable loss of money or property.” Pitlyk dismissed the suit prior to class certification.
Hennessey appealed, but judges in the 8th Circuit Court came to the same conclusion as Pitlyk, determining she received the “benefit of the bargain” from Old Navy.
“The existence of a deceptive practice, a distinct element of her claim, is not at issue,” Judge James B. Loken wrote. “The Attorney General and local prosecutors may commence criminal actions against those who knowingly engage in deceptive practices…, but a private plaintiff suing for damages under [the MMPA] must also prove an ascertainable loss.”
This isn’t the only suit Old Navy has faced this year. In April two residents of Washington filed a class-action lawsuit against the retailer alleging the company sends emails to consumers containing false or misleading information in an attempt to create a “false sense of urgency.” The plaintiffs, Roxann Brown and Michelle Smith, claim that Old Navy emails contain false deadlines for sales or discounts that actually last longer or have been going on longer than advertised.
“Old Navy also uses its preconceived ‘sale extensions’ as an excuse to send consumers additional emails purporting to notify them that a sale is ending or that a sale has been extended,” the suit said.
