Somebody Slap This Man

"1st floor; sports logo gear, Lee Brand jeans, and soon, our husky Hispanics section."

“1st floor; sports logo gear, Lee Brand jeans, and soon, our husky Hispanics section.”

So this is what it’s come to.

Kohl’s, the amazingly outdated department store chain with its radiant white perfume counter and its Semiannual Men’s Suit Events, is on the defendant end of a new lawsuit. The basis for this suit is so stupid that it’s hard to recite for you here without seething, but we’ll attempt.

Some shoppers feel they were defrauded. They don’t question the quality of the merchandise, nor do they claim that they were charged a different price than that which appeared on the label.

The plaintiffs’ argument is that Kohl’s smacked them in the face with a big old rusty anchor. The lead plaintiff is a sensitive California gentleman named Antonio S. Hinojos, who bought $150 worth of Samsonite bags at his neighborhood Kohl’s. So far so good, right?

Oh no. The problem is that Kohl’s claimed to have, or Hinojos claimed that Kohl’s claimed to have, marked the price down from $300. Hinojos asserts that the luggage was never available at $300. Let’s rephrase that as a logically equivalent statement:

A retail consumer is complaining that the store he chose to patronize sold its goods at too low a price.

He also bought some polo shirts at $36 apiece. Is that a fair price? According to the U.S. 9th Circuit Court of Appeals, it doesn’t matter. It’s how much they were discounted off their original price that’s the sole determinant of whether the shirts were worth buying or not. Kohl’s claims the shirts in question were reduced 39%, implying a regular price of $59. Hinojos claims that the regular price was lower, and that he was somehow harmed by Kohl’s never having charged the higher price.

Again, because this lawsuit is so ridiculous that it’s easy to think you must have misunderstood some point, or that we failed to explain it clearly enough: Hinojos isn’t claiming that he tried to buy a $300 item that was listed on sale for $150, and was then denied the discount. He paid $150, just like everyone else who bought Samsonite baggage that day. Neither Hinojos nor Kohl’s dispute the prices of what he bought. Hinojos’s argument is that by offering its wares at as much as 50% off, when in truth they were discounted by some smaller percentage, Kohl’s enticed him to buy things he otherwise wouldn’t have.

Here’s Judge Stephen Reinhardt of the 9th Circuit, offering educated blather no layman could hope to spew:

When a consumer purchases merchandise on the basis of false price information and when the consumer alleges that he would not have made the purchase but for the misrepresentation, he has standing to sue.

Hinojos is the philosophical descendant of every idiot housewife who came home with an overpriced and/or unnecessary handful of shopping bags.

“How much did that cost?”
“I got it on sale!”

That’s not an answer. Things cost what they cost, not the reduction by which they were discounted. That sounds so utterly obvious, so tautological, so A-is-A, that it seems insulting to have to point it out. But what do we know? Less than at least one judge on the 9th Circuit, evidently. Who carries on for 21 pages, including this passage:

[T]he bargain hunter’s expectations about the product he just purchased is precisely that it has a higher perceived value and therefore has a higher resale value

Hinojos suffered economic harm because should he choose to sell his polo shirts somewhere down the road, he wouldn’t be able to get all that much for them if the future buyer knew that they had never been sold for $59 apiece. Leaving aside the question of who buys clothes with the intention of doing anything other than tossing or donating them at the end of their useful life, how is an item’s price not its price? This is neither fraud nor misrepresentation by any rational understanding of the terms.

[C]onsumers such as (Hinojos) reasonably regard price reductions as material information when making purchasing decisions

We’ve asked a similar question before in a different context, but ceteris paribus, which woman is more desirable:

  1. the one who’s 5’4” and weighs 130 pounds
  2. the one who’s 5’4”, 130 pounds, and used to weigh 192 pounds?

If you’re chronic clothes shopper Antonio Hinojos, the only possible answer is c), the brother of the formerly fat one.

Of course America needs tort reform, but we’re interested in this story primarily because of how it illustrates a financial point. If you believe – whether sincerely, or for purposes of filing a nuisance lawsuit against a multibillion-dollar corporation – that things cost something other than what they cost, you’re a moron. Imagine Mr. Hinojos negotiating his salary:

Employer: “This neurosurgeon job pays…well, it normally pays, um, $18,000 a year. But for a qualified, dynamic, go-get-‘em candidate like you, we can go as high as $22,000 plus bene—“

Hinojos: “I’LL TAKE IT!”

If Mr. Hinojos had instead visited Rick’s Budget Valise Emporium, where that same Samsonite ensemble sells for $145 every day, he presumably wouldn’t have bought. After all, what’s the point? Where’s the savings? And if Rick’s had raised the price from $135 the previous week? Forget it. Let the seller dictate the terms of the sale, not you.

(That was sarcasm. Let the seller dictate as little as possible. Look at every transaction from the other party’s perspective. Walk away from a deal you don’t like; there’ll be others. Find the details here. And stop clogging up the court system with your vexatious foolishness.) runs on the Genesis Framework

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