We're both playing armchair lawyers, you or I could be completely off base. I will concede that my example may not parallel Blooms Today :dunno: But it did only take me 15 seconds to find a lawsuit that I felt was similar.
I know at least I am playing armchair lawyer, just because I like laws and logic that kind of thing. It's my hobby and am darn good at it. I have years of experience watching Judge Judy. So be careful.
I've read the case you cited. Here's the major difference between Sprint/Nextel case and Blooms Today, and why I think there's little chance that Blooms Today will get sued.
In the Sprint/Nextel case, consumers signed with them because they thought they were getting "Free" incoming calls, long-distance, etc. According to FTC definition, this satisfies the "materiality" requirement of deceptive ad. Quote -
Third, the representation, omission, or practice must be a "material" one. The basic question is whether the act or practice is likely to affect the consumer's conduct or decision with regard to a product or service. If so, the practice is material, and consumer injury is likely, because consumers are likely to have chosen differently but for the deception.
Let me emphasize here that customers of SPring/Nextel were NOT getting the "free" stuff promised in the ad.
In case for Blooms Today "50% off" ad, consumers will get 50% off (for most items, I should say). It's just not the way consumers might have thought.
In other words, Blooms Today ad is material only in the sense that it induced one to click on it (or make a phone call). At this point, no "injury" has occurred, because the consumer hasn't bought anything.
If a customer clicked on "No thanks - continue" button, no injury occurred. "Injury" occurs only when a customer clicked on "Sign me up" and didn't realize what he was doing.
In this case, there is a law dealing with clueless consumers: it's called "reasonable consumer" standard. Quote -
A company is not liable for every interpretation or action by a consumer. In an advertising context, this principle has been well-stated:
An advertiser cannot be charged with liability with respect to every conceivable misconception, however outlandish, to which his representations might be subject among the foolish or feeble-minded. Some people, because of ignorance or incomprehension, may be misled by even a scrupulously honest claim. Perhaps a few misguided souls believe, for example, that all "Danish pastry" is made in Denmark. Is it therefore an actionable deception to advertise "Danish pastry" when it is made in this country.? Of course not, A representation does not become "false and deceptive" merely because it will be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons to whom the representation is addressed. Heinz W. Kirchner, 63 F.T.C. 1282, 1290 (1963).
So Darrell, what do you think a "reasonable consumer" would do if he saw "Sign me up" and "No thanks - continue" buttons? There will always be some idiots who click every button he sees without reading. Laws are unkind to them.
