Complaint Review: Wal Mart #2903 - Chelmsford Massachusetts

There is no point in arguing back and forth about what constitutes an illegal bait and switch tactic but where I think is the most confusion..is what is implied by "advertising".

Since that is really the key to the "bait" part of bait and switch. As the law clearly implies, without the "bait" part..it is nothing more then salesmanship. If there was a law against trying to sell someone an item or encourage them to buy a more expensive item, they might as well fire everyone on the sales floor and let the customers grab what they want and bring it to the register.

The question is, how was this TV advertised?

Was there any signage outside the store, or visible to passers by that would see this particular TV was selling at that price and be lured in to buy it?

Was the TV seen selling for this price in any fliers, newspapers, or online ads? Any radio ads that mention it? I went online to check for this model you posted about and it says the item can not be found at Walmart online. If it was at one time online at that price, do you have a screen shot that can verify this?

Were there any large signs in the store advertising this set "on sale/special etc" that customers all over the store could see and be "lured" to, even if they were not shopping for a TV? Is it reasonable to  suggest that someone in that store shopping for shampoo, dog food and an AC/DC Tee shirt, would be "lured" over to the TV due to the "Advertising"?

Was the only "advertising", just the floor model in the TV dept with an "everyday low price" on it, as you stated in the original report?

The answer to these questions can open for debate as to if there was any alleged "bait" used or false "advertising". If we can't establish there was any bait, we can't conclude they were using any bait and switch tactics.

If we can prove "bait" beyond a reasonable doubt or by the preponderance of the evidence, then there is a possible violation and we can work on the "switch" part and see where that goes.

I googled the Mass. laws and got the same thing you did...

"A business uses "Bait and Switch" advertising - a technique by which the seller advertises an item for sale at a particularly good price or terms but does not really want to sell that item. The seller discourages the purchase of the advertised item and instead tries to convince the buyer to purchase a different item for a higher price or on less favorable terms."

The term "advertising" is not vague. Any dictionary, legal or otherwise defines "advertising" as such: "The activity of attracting public attention to a product or business, as by paid announcements in the print, broadcast, or electronic media."

The simple common practice used by all retailers in America of having a price tag on an item, whether high, low, marked up, marked down, marked sideways does not constitute or fall under the definition of "advertising" or "on sale" , and there is no way possible to redefine it as such. The language is clear.

Now there are other aspects of this case as well that according to your report, do not fall under a bait and switch tactic.

Now, you feel they did "not really want to sell the item", which is how the law puts it. They say they were out of stock. Difference. Now if they had the item in stock and flat out refused to sell it at the price they have on the tag...it is still not bait and switch, and although it would certainly be wrong of them to do that, no laws were violated.

The price tag is what's known as an "Invitation to treat" Which means the the seller is making an offer to sell the item at this price but does still not "legally" have to accept the "offer".

Further more, the sale of an item creates a legal contract between the two parties, i.e suitable for purpose, trade description, etc... and one of the first rules of a contract is agreement, this is formed when one party accepts the offer of another. And a wrongly priced item means the first rule of contract is broken, so it's not legally binding, and therefore the vendor does not have to accept the offer, which is the price tag.

But none of this applies you your case regardless since they were out of stock or so they claim which you would be required to disprove, and the offer you were making was on a demo model, which you would be required to PROVE that by law, they MUST sell it, at any price.

Additionally, since they claim the item was out of stock, it can't fall into the Mass. state definitions of bait and switch, which states the seller "discourages" the purchase of the ADVERTISED item (they can't encourage or discourage if they don't have one to sell in the first place), the item does not fall under the definition of ADVERTISED in ANY state of the USA, and they did not "lure" or "bait" you into the store to try to convince you to purchase a different item for a higher price or on less favorable terms.

Facts:

You went into walmart
You saw a tv with a low price on it's price tag
The tv was out of stock
they tried to locate another, could not
You requested a rain check
Not available or required by law on tv (or any item not ADVERTISED on sale)
You asked to buy the floor demo model
They said they can't sell it, and no law can force them to
You ASKED to see what else they had
They showed you another tv
You did not like it
You left and lodged a false complaint because you do not understand what "bait and switch" means no matter how clearly the law states it, or by using simple reasoning and common sense.

The law in Massachusetts does not require "luring" people in, or high pressure sales tactics, to exist before a retailer is guilty of a bait-and-switch. Such terms are vague. The law anticipates that Wal Mart's defenses ... such as claims that their in-store advertising doesn't "lure" people ... or that they aren't engaging in "high-pressure" sales tactics. The law in Massachusetts states: "A business uses "Bait and Switch" advertising - a technique by which the seller advertises an item for sale at a particularly good price or terms but does not really want to sell that item. The seller discourages the purchase of the advertised item and instead tries to convince the buyer to purchase a different item for a higher price or on less favorable terms." This is precisely what Wal-Mart did. They advertised - in-store - an item for sale on "particularly good" terms that they then refused to sell to me (even a comparable item) and their salespeople then attempted to sell me higher priced items. This is the classic bait-and-switch con. The next day, they were still advertising the item at the absurdely low "bait" price, refusing to sell that item, and claiming to customers that it was "out of stock" and customers would have to choose from the higher-priced items - which of course are "in stock." What Wal-Mart is doing is illegal and fraudulent.

Copied from wikipedia

In retail sales, a bait and switch is a form of fraud in which the party putting forth the fraud lures in customers by advertising a product or service at an unprofitably low price, then reveals to potential customers that the advertised good is not available but that a substitute is. This use of this term has extended to similar situations outside of the marketing sense.

In the United States, courts have held that the purveyor using a bait and switch operation may be subject to a lawsuit by customers for false advertising, and can be sued for trademark infringement by competing manufacturers, retailers, and others who profit from the sale of the product used as bait. However, no cause of action will exist if the purveyor is capable of actually selling the goods advertised, but aggressively pushes a competing product.

Likewise, advertising a sale while intending to stock a limited amount of, and thereby sell out, the loss-leading item advertised is legal in the United States. The purveyor can escape liability if they make clear in their advertisements that quantities of items for which a sale is offered are limited.

Bear in mind..even if you can get around the "lures in" part..how can you convince a judge or jury that the term "advertised" has anything to do with the price tag on an item? You might want to look up the word advertised and see if you can find a way to re-define it to help your case. But it won't happen, I checked.

But if I were you, I would burn those pictures you took which did not say the item was "advertised" on sale. You stated in your report is was marked down, but "appeared to be Walmart's newly everyday low price".

As I stated, I am no fan of Walmart, AND I understand why you are upset with them..but fact is fact. There was no bait and no switch as they didn't use any high pressure sales tactics to force you into buying another TV. You also better get your story straight as you state in this original report and I quote..."I asked Kaleena to sell me a comparable item at the in-store advertised price. She said she would "see what she could do." You didn't like the one she showed you, so you didn't buy it..nothing illegal here.

You having to ask her to show you anything is not a high pressure sales tactic. Did you end up buying a more expensive TV? Do you know for a fact that Mass state law says anywhere that a floor model is to be considered new stock at any price? Or that they MUST sell it to you at any price? How do you know the if floor model is for sale or not?

These and many other similar questions will be put to you if you try to pursue legal recourse, although you would not get this far. No attorney would bother unless you were paying for a losing case and they knew it. You would only end up back here lodging a report of how your attorney ripped you off.

I am not trying to be rude but the reality is you are upset that they were out of stock on a TV that had a good every day in-store price. I do not see a case of bait and switch in any way shape or form. Retail stores tend to run out of stock on the best priced items quickly, nothing out of the ordinary. Unless you can prove it was advertised on sale, you have no case. The pictures you took would be the best evidence for them, not you.

The law in the state of Massachusetts is very clear as to what constitutes a "bait-and-switch." Wal Mart cannot advertise a product for sale (in a newspaper, or in its stores, or anywhere else) unless it has sufficient quantities on hand to meet expected demand. According to the Mass Attorney General: "A business uses "Bait and Switch" advertising - a technique by which the seller advertises an item for sale at a particularly good price or terms but does not really want to sell that item. The seller discourages the purchase of the advertised item and instead tries to convince the buyer to purchase a different item for a higher price or on less favorable terms."

Two facts give away the con: The fact the store would not sell me the floor model at any price is the dead giveaway that this is a classic bait-and-switch scam. They refused to sell me a perfectly good item at the claimed sales price. Additionally, their employees tried to up-sell me to a higher priced item ($180.000 higher). Classic bait-and-switch. They advertised the product, at an artificailly low price, inside their store, knowing full well they did not have stock on hand and refused to sell me the "bait" floor mode.

The story is not over, though.

The next day, they were still claiming to have the product for sale even though their employees knew it was out of stock. Additionally, I have discovered that this practice is being done in more than one location (I've now checked three separate locations and the exact same sales tactics and refusal to sell the "bait" model were used in all three locations). I'm now recording my adventures in Wal Mart's electronics sessions and will be posting the YouTube video soon demonstrating how their illegal sales tactics are being systematically employed at multiple locations.

Wal Mart is engaging in a classic illegal bait-and-switch con.

I normally would not defend Walmart, I am not that happy with their service myself..but this is not a bait and switch tactic. Not to say retailers don't try to pull this to a certain extent..and car dealers are notorious..but this is not a case.

A true bait and switch which is illegal works as such. If every stage of this did not go exactly as listed..it was not bait and switch and would not stand up in a suit.

Item is advertised in the paper, TV, radio etc.

You are "baited" into the store to buy that item.

Item is not in stock.

High pressure sales tactics are then used to "switch" you into a more expensive unit... or, they get you to pay more for the original item then it was advertised for.

The item continues to remain advertised publicly at that price for an extended length of time, even though the company is out of stock.

This was just a case of bad timing. You wanted something they had for a good price in the store, and they were out of stock. It sounds more like you were pressuring them, then they pressuring you.

Just because the computer screen showed one in stock in another store, does not mean it is actually there. That is why they called. The systems generally are not updated real-time, sometimes an item will show in stock but it is another display unit, there are several factors that can cause this. At least they tried and you are still bitter.

So although I understand why you are upset about it, I don't think they were just refusing to sell you one, they were really out of stock. It happens.

They are not required to give a rain check on ANY item that was not advertised on sale, and you yourself admit it was not and even took pictures in the store... remember ,"everyday low price"? They also do not have to sell a display unit whether is is missing parts or not. Sometimes display units are not for sale, that happens and you can't force them to sell it because they are out of stock. That is up to them, or sometimes the manufacturers need it sent back. If they were required to sell the floor model if out of stock, then you would have a case.