Fashion Counsel with Anthony V. Lupo

Arent Fox's fashion law blog offers news, analysis, and insights for the industry from fashion attorney Anthony Lupo.

Fashion Counsel with Anthony V. Lupo

Saks Wants Proposed Class Action over Return Policy Dismissed

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Saks Wants Proposed Class Action over Return Policy Dismissed

Consumer class actions against fashion retailers are on the rise, and the most recent target is Saks Fifth Avenue. Currently pending in the Central District of California is a putative class action case brought by named plaintiff Jennifer Shaouli, who claims that Saks’ failure to prominently post its return and refund policies in its store violated California’s Consumer Legal Remedies Act and False Advertising laws.

The case stems from allegations that, several weeks after the plaintiff purchased a pair of shoes at Saks in Beverly Hills, she was notified through a letter from Saks that her purchases would no longer be accepted for returns. In response, Shaouli filed suit seeking full restitution, claiming that no signs or language were posted in the store making her aware of Saks’ return policy, which states that it can decline requests to return, exchange, credit, or refund merchandise if the customer has a high return or unreasonable return pattern. Her suit also proposes that Shaouli represents a nationwide class and a separate California class.

For its part, Saks contends that such policy is in place as a protective measure, and went into effect against the plaintiff  because she returned $149,245 worth of merchandise over a 12-month period. Saks also argued that the plaintiff lacked standing and that she failed to prove that she sustained any damages.

This case comes on the heels of a wave of consumer class action suits against fashion outlet stores in California for alleged deceptive pricing tactics. As with the outlet store cases, the plaintiff in this case may face similar challenges in forming the putative class. For example, under the Federal Rules, an essential prerequisite for class certification is that the named plaintiff — in this case, Shaouli — exhibits what is known as “typicality,” a requirement that her claims are typical of all the class members. (Federal Rules of Civil Procedure, Rule 23(a)(3)) Additionally, there must be “commonality” between the claims of all members, an element that requires the claims of all class members to share a common underlying factual basis. (Federal Rules of Civil Procedure, Rule 23(a)(2))

Shaouli’s suit, however, contends that “[h]ad Saks properly displayed its return policy as required by law, plaintiff would not have purchased Saks’ products, would have purchased less of the products and/or would have paid less for the products.” This is an allegation incredibly specific to the named plaintiff. To find a commonality between the claims would require an individualized evaluation of each class member and their knowledge of, and their specific reliance on, the alleged deceptive advertising that occurred at Saks.

Whether this suit moves forward remains to be seen. Currently, resolution of Saks’ motion to dismiss is pending. What is apparent, though, is that the plaintiff’s bar has begun to focus its attention on these and other similar consumer cases.

For more information about this case or other consumer class action suits involving fashion retailers, please contact Anthony V. Lupo.

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