Judge Dismisses Gap Deceptive Advertising Class Action Lawsuit

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Earlier this week, a California judge dismissed a false sale class action lawsuit that accuses The Gap Inc. of using deceptive advertising to trick consumers into buying merchandise at full price, but will give the plaintiff “one last chance” to amend the complaint.

Los Angeles Superior Court Judge Kenneth Freeman found that plaintiff Misbah Etman failed to specify which advertisements she relied on when making the assumption that the products would be discounted. Further, the judge found that Etman did not show that she had suffered a financial loss from the allegedly deceptive sale price advertising, meaning she doesn’t have standing to file the class action lawsuit.

“She alleges that she was aware of the price of the items at the time she purchased them, but that she did not return the items because she was ‘psychologically committed’ to them,” Judge Freeman wrote. “This is not an injury-in-fact, as a matter of law.”

Judge Freeman concluded that Etman paid money and received the merchandise she wanted. “Plaintiff, in other words, received what she paid for,” the judge wrote.

However, the judge gave Etman another chance to file an amended complaint. “I’m going to give you one last chance, so hopefully you’ll be able to come up with something,” he told her.

Etman filed the Gap deceptive advertising class action lawsuit in June 2014 over allegations the retailer misleads consumers about which items were included in a sale display and which weren’t included in the sale. She accuses the retailer of displaying advertisements that include a disclaimer indicating that certain items are excluded from the sale—but that this disclaimer is in a small font and not clearly visible to shoppers.

According to the Gap class action lawsuit, this advertising tactic is designed to suggest that all items on a particular table, shelf or rack are discounted—even though some items are actually full price. As an example, Etman made reference to a sign on a rack of clothing at a Gap store that said “DRESSES $25.” A disclaimer in small print indicated that the sale only applied to select styles and that the discount would be issued at the register.

“Nowhere on the rack or on the dresses on the rack is there any indication that a particular dress is or is not one of the ‘select styles,’” Etman alleges in the Gap class action lawsuit.

By the time the shoppers get to the register to pay for their merchandise, they are already psychologically committed and have a hard time walking away from the purchase, Etman claims. According to her class action lawsuit, Gap uses this deceptive marketing scheme to entice shoppers to buy products that they would have rejected at prices that were higher than advertised.

Etman is represented by William M. Turner and Usman S. Mohammed of Jones Bell Abbott Fleming & Fitzgerald LLP.

The Gap Deceptive Advertising Class Action Lawsuit is Misbah Etman, et al. v. The Gap Inc., et al., Case No. BC 547161, in the Superior Court of the State of California, County of Los Angeles.