• March 24, 2015

Slimed Person cropped SLIMEImagine you work for a grocery store chain and you are under great pressure to think up ways to increase revenue.

Here’s an idea: As people go through the store, have your smiling and sweet bagger-employees place bags in the bottom of customers’ carts as they amble through the store. When the customers get to the register, charge them, say, $0.10 per bag. Easy money!

Consumer rights advocates could have a problem with your scheme though. You’re tricking people into purchasing things that they actually would get for free. You’re surreptitiously imposing an unnecessary expense on your customers. What you’re doing is essentially fraud.

In your defense, you might say: (1) we don’t “sneak” the bags into the carts, we do so openly and we will take them out upon request; (2) many of our customers appreciate the convenience of having the bags “preloaded”; (3) some customers actually think this service saves them money because, as they shop, the presence of the bags makes them more mindful about the volume of their purchases and the “preloaded bags” deter “impulse buys.” Maybe you even have some experts to back up these defenses?

I don’t buy your defenses. I think this would be an exploitative and parasitic practice. If a supermarket implemented such a plan, I think a regulator — whether class action lawyers, courts, or whoever — would need to step in (if customers, as a group, did not collectively punish the store for its scheme — that is, if market forces did not manage to kill off the parasitic practice).

I get the sense that U.S. District Court Judge John R. Tunheim (D. Minn.) agrees with me.

The consumer class action against Symantec and Digital River, in my view, is the “digital version” of my supermarket shopping bag scam. When consumers purchased anti-virus software on-line, the seller slipped an additional product in the “digital shopping cart” with an added charge. And, arguably, the “additional product” (“download insurance”) had minimal actual value.

Judge Tunheim took the opportunity of the parties’ cross-motions to exclude certain experts or expert opinions and Symantec’s motion for summary judgment this past week to rule decisively in plaintiffs’ favor.

Congratulations to the plaintiffs’ firms of Cohen, Milstein, Sellers & Toll, PLLC and, locally, Lockridge Grindal Nauen PLLC. The internet, as we all know, is the newest frontier of commercial scams — sometimes 100% illegitimate but far more often some smaller percentage. (It’s is so much easier for a large business to get away with stealing nickels from millions of people than draining the bank accounts of just a few.) We are fortunate to have firms like Cohen, Milstein, Sellers & Toll, PLLC and, locally, Lockridge Grindal Nauen PLLC to keep these schemers at bay.

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