Appellate Division Ruling on ‘Pretend Gross sales’ More likely to Spawn Class Motion Claims In opposition to Retailers

Close-up of unrecognizable woman in casual clothing standing in spacious shopping mall with lights and holding many paper bags.©Seventyfour -

After the New Jersey Appellate Division sided with shoppers over the age-old retail industry trick of marking up prices before offering items “on sale,” some observers are predicting an uptick in class action claims, but these cases likely won’t be cut-and-dry.

In a published Feb. 9 opinion in Robey v. SPARC Group, the appeals court held that a trial judge erred in dismissing a claim of false advertising brought by consumers against SPARC Group over clothing prices. SPARC Group, or Simon Properties Authentic Retail Properties, is the owner of brands such as Brooks Brothers, Eddie Bauer and Forever 21. While the court found that the judge thoroughly addressed all the statutory and common-law counts, it disagreed with the determination that the plaintiffs failed to alleged an ascertainable loss.


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