Matters Column

Price check on aisle three: Litigation over two cents?

October 14, 2016
| By Bill Rohn |
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Back in the 1970s, I was a “pre-law” political science major at Grand Valley State University. I had a great college job, when I wasn't editing the student newspaper.

The people who make French's mustard paid me $2.75 an hour and 12 cents a mile to drive to six local supermarkets and put French's mustard and spices on store shelves. Those stores closed long ago, but I hit each of them twice a week on the way to or from Grand Valley.

I went into the stockroom, opened boxes of pepper, cinnamon, and other seasonings and stamped prices on the cans with an ink-filled metal price marker that made a “ker-chunk” sound when it hit the cans. Then I put the product on the store's spice racks.

That's $2.75 an hour and 12 cents a mile while trying to figure out how to get through college and into law school.

The best part of the job was observing what some shoppers wore on hot summer days — more about that in another column. The worst part was price changes.

By price changes, I mean every so often, I would arrive at a store and the grocery manager would tell me that I had to scrub the ink price marks off cans that were already on the store shelves and remark them with new prices, typically slightly higher than what an item had previously been selling for. I don't recall prices ever going down.

The worst part was what I expected to be a 90-minute stop at a supermarket became an ink-stained four-hour session, which often made me late for class.

All of which brings me to Mary Bach, whom some describe as a “consumer activist,” who once won a lawsuit against Wal-Mart over two cents.

Bach was shopping at a Wal-Mart in Westmoreland County, Pennsylvania. She filled her cart with sausages marked at a price of 98 cents but was charged $1.00 at the checkout. Bach pointed out the error, and the clerk refunded her two cents.

End of story? Not quite. Evidently, Bach wanted more sausages.

She returned to the store days later, bought more 98-cent sausages and was again charged $1.00 for them. Bach telephoned the store manager, who later testified he offered another two-cent refund and promised to correct the mistake.

Testified in court? Yes, the matter ended up in court.

Bach sued Wal-Mart, argued about unfair trade practices and was awarded $100 in damages plus $80 in court costs.

Asked by Wal-Mart's trial counsel why she refused the store manager's refund, Bach noted she wanted time to “weigh my options.” She also said she only takes merchants to court “as a last resort.”

Following her victory, Bach indicated her “last-resort” tactic had produced five lawsuit victories against the very store that sold her the sausages. That's right. Bach sued the store five times.

Prior to the court's decision, Wal-Mart's store manager indicated his store makes approximately 6,000 price changes per week while serving about 30,000 customers per week. The manager said old and new packages of sausages evidently were on the shelves, and the old sausages cost 98 cents while the new sausages cost a dollar. He also indicated Wal-Mart store employees regularly check prices.

My first reaction to the Mary Bach lawsuit was to think about rubbing the price off of 6,000 sausages on my way to or from school each week. Others may wonder whether Mary Bach v Wal-Mart is one more example of how laws and lawsuits change and shape our society.

Some would argue — as did those who commented on the Bach story — that, “Courts aren't supposed to waste their time on this trivial stuff. The judge should have thrown her out of his courtroom for this nonsense. She should have addressed her problem with the store manager, and the discrepancy would have been corrected without an expensive lawsuit.”

Others would respond laws like the one Mary Bach used are among very few ways the consumer has a chance to have his or her voice heard.  As in, “if a 2 percent mistake in an adversary's favor is of little concern, then go ahead and send me 2 percent of your income from time to time. Or pay me 2 percent more at tax time.”

Finally, what could a merchant accumulate if it — even accidentally — picked up 2 percent here and 2 percent there from hundreds of customers who visited a store on a weekly basis?

Was Mary Bach a litigation-happy predator? Or was she an informed consumer who chose where she would shop while also hoping to save a penny here and a penny there? Was she an informed consumer who exercised her legal rights upon not getting what she hoped to pay for?

Mary Bach isn't alone in filing lawsuits that seemed odd when initially filed. Similar litigants include a Michigan consumer who once sued Kraft Foods and Starbucks for selling a coffee maker designed to use Starbucks coffee pods while allegedly failing to disclose the pods would become unavailable when Starbucks introduced pods that could be used only with Keurig coffee makers. Then there was the blind Boston barber, who tripped and fell twice while cutting hair, and informed his employer he was legally blind. He won a $100,000 wrongful termination suit after he was dismissed from his job.

Ms. Bach told the judge her husband and grandchildren regularly enjoy sausages. She can buy more than 180 packages of sausage with her winnings, hopefully at 98 cents apiece. Her litigation may be another example of an old adage that might be paraphrased as follows: "to retain respect for sausages, laws — and lawsuits — one must not watch them in the making."

Bill Rohn, who can be reached at werohn@varnumlaw.com, is a trial lawyer at Varnum LLP. Bill has been tied up in court lately; this month's column is similar to one that appeared in the Business Journal in January 2012.

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