Consumer-Beware-In-a-Class-Action-Suit-Some-Customers-are-Taking-Department-Stores-to-Task-for-Fake-Sale-Pricing.jpg (2149×1159)A number of major department stores have been advertising sale prices that aren’t really sale prices, so called  “false reference pricing.” In December, 2016, jcpenney, Sears, Macy’s, and Kohl’s were hit with lawsuits by the Los Angeles city attorney’s office. In February, 2016, these major department store chains had advertised big sales, claiming to be offering merchandise at discounts of up to 50 percent from the “original price.” The problem is that the items were never sold at the “original price” as they claimed.

The violations.

Advertising a maternity swim top for $31.99, jcpenney was claiming 30 percent off an “original” price of $46. Kohl’s sold belted cargo shorts for $35.99, claiming an original price of $46. Sears sold a Kenmore washing machine for a $999.99 down from a claimed “original price” of $1,179.99. In fact, this washing machine had been selling for a range of prices, as low as $649.99. Macy’s was selling jewelry for $30 they said retailed at $120. These pieces had never sold for more than $30.

Under California law, stores can’t advertise a price as a “former” price unless the items were actually sold at the “former” price as of three months ago or as of a date shown in the advertising. In each case, the city attorney said the retailers were actually selling the items for what had been their “original” prices all along. They were driving customers to believe they were attending a “sale” which really wasn’t a sale.

The lawsuit declared that there were “thousands” of instances of fake sale items. In civil court, Los Angeles sought penalties of $2,500 for each violation of the consumer law. Kohl’s and jcpenney had previously been sued in class actions over deceptive pricing before. Kohl’s settled for $6.5 million and jcpenney for $50 million. Macy’s had similarly been sued by consumers in class action suits in California and Florida. That class action suit accused Macy’s of misrepresenting the nature and amount of price discounts on products by “offering steep discounts off of fabricated, arbitrary, and false former or purported original, regular or ‘compare at’ prices.”

Pricing law and fictitious regular prices.

In the United States, pricing law and regulations vary by state. The 2018 Code of Federal Regulations (CFR) has stipulations under section 233.1 that lay out the basis for civil action against false sale pricing. The section defines the bona fide price as the price “at which the article was offered to the public on a regular basis for a reasonably substantial time.”

The article says that the “regular price” was not necessarily false just because no sales were made at that price, as long as items were offered at that price for a substantially long time. Sometimes, of course, prices are lowered because the retailer looks for a price point at which the item will actually sell. If that is the case, calling the reduced price a “sale price” may or may not be within the limit of the regulation.

The CFR provides an example.

A retailer offers a brand of fountain pens which cost him $5 each. He usually sells his good at a 50 percent markup, so he would normally price the pens at $7.50. However, he decides to offer them at $10 each. He realizes that this price is too high and can’t expect to sell pens at that price point. “But he doesn’t care, for he maintains that price for only a few days.” Then he “cuts” the price to what would have been his usual level, $7.50. Now he claims the pens are on sale, a terrific bargain, reduced from $10. The CFR notes that this sale price is a false claim, the bargain is not genuine, and the retailer would be liable for civil action.

Aiman-Smith & Marcy are consumer fraud, employment and class action attorneys in California. Please contact us to learn more.

Lisseth Bayona


Education and Background

I am a Los Angeles native and daughter of Salvadorian immigrants. From an early age, my parents instilled the value of hard work and education in me and my two siblings. Their perseverance enabled each of us to graduate from college and earn professional degrees.

My interest and commitment to workers’ rights have roots in my parents’ experiences as undocumented workers in Los Angeles. Witnessing the challenges they faced inspired me to pursue a career where I can help individuals confronted with similar struggles. To help someone in those moments is very satisfying. I love connecting with people and learning about their stories. I believe that dignity in the workplace is a right of all workers, not a convenience or privilege reserved for employees of a certain race, gender, age, sexual orientation, or gender identity.

Legal Experience

I received my J.D. from the University of Southern California (USC) Gould School of Law. While there, I served as a judicial extern to the Honorable Patrick J. Walsh of the United States District Court for the Central District of California, where I drafted a criminal judicial opinion. Also, while at Gould, I served as an extern for the U.S. Attorney’s Office for the Central District of California. As a Criminal Division Extern, I had the opportunity to work closely with a trial team of Assistant U.S. Attorneys on a money laundering case which further sparked my interest in litigation.

Personal Interests

In my free time, I enjoy urban vegetable gardening, traveling, and spending time with my nephew and niece. I also love to spend time at San Onofre Beach learning to surf, although admittedly, I am not very good.



Hallie L. Von Rock

Attorney (SBN 233152)

Education and Background

I moved to the Bay Area from Washington after graduating high school. I had been accepted to UC Berkeley through a program where I could defer for two years while getting my California residency and attending community college, which was significant since I was paying for college on my own. I began working for Randall Aiman-Smith and Reed Marcy in 1996 as an office manager while taking night classes. My first foray into the legal world was soon after starting at the firm when I was ready to transfer to UC Berkeley. Rather than accepting my resident status, the Board of Regents took the position that California residency required a student to be in California “two calendar years.” Randall and Reed took up my case with the same verve as they helped their actual clients and I got the chance to comb through the UC Berkeley library to read their codes and regulations to support my position. In that experience, I learned what is was like to feel helpless against a big organization and then to have dedicated attorneys in my corner to take up my cause.

After a break to pursue my major in art history, I went to UC Hastings College of Law and continued working with Randall and Reed. Having worked together now for over 25 years, we have a unique ability to work collaboratively and finish each other’s sentences. I have strived throughout my career to make a difference in the lives of our clients. At the end of the day, if I am helping someone to get compensation for losses they suffered, then I know that all the work put into a case has been worth it.

Legal Experience

I have extensive experience in civil litigation and class action cases, including conducting discovery and depositions, calculating damages analysis, preparing motions for certification, writing appellate documents, and overseeing claims administration. We have handled several class actions against retailers where plaintiffs claimed they were forced to purchase clothing to wear to work and were not compensated for these purchases, including against Abercrombie & Fitch, Hugo Boss, Armani Exchange, Uniqlo, Dollar Tree, and Ross. Recently, I was trial counsel in a defamation claim against Bank of America on behalf of a former employee who claimed the Bank blacklisted her with future employers. The jury found Bank of America liable, including for punitive damages.

Personal Interests

Aiman-Smith & Marcy has sponsored me in the Boston Marathon and New York Marathon. When I race, I often wear a “Rockstar Ronan” shirt to support research for childhood cancer through The Ronan Thompson Foundation.


University of California, Berkeley, B.A., 1999

Hastings College of the Law, University of California, J.D., 2004

Randall Aiman-Smith

Abogado (SBN 124599)

Aiman-Smith & Marcy. Oakland consumer fraud attorneys.

Educación y antecedentes

Fui afortunado. A pesar de no haber terminado la escuela secundaria o la universidad, pude -aunque con mucho trabajo- ser admitido y sobresalir en una de las mejores escuelas de derecho del país: La Facultad de Derecho de la Universidad de Berkeley. Mientras estuve allí, tuve el privilegio de ser editor de la California Law Review y miembro del Moot Court Board, asesorando en la redacción de escritos y en la defensa de apelaciones a otros estudiantes. Después de salir de la escuela de derecho, en mis primeros años de práctica, enseñé la escritura legal y la defensa de apelación en la Universidad de California, Hastings College of the Law. También, a lo largo de los años, he sido presentador en eventos de educación legal continua.

Experiencia legal

He sido abogado durante 35 años. He dedicado mi práctica exclusivamente a representar a empleados, consumidores e inversores en los tribunales estatales y federales de primera instancia y en los tribunales de apelación. Me gusta ir a los tribunales por mis clientes y he llevado muchos casos con jurado en los tribunales estatales y federales.

¿Ejemplos? En 2010, fui la abogada principal, junto con los otros abogados del bufete, en el caso Williams v. Union Pacific Railroad donde, después de cuatro años de preparación, el bufete obtuvo un veredicto del jurado de 1.670.000 dólares para una empleada afroamericana. En Rivero v. Surdyka, fui el abogado principal en el juicio y la apelación de un caso de derechos civiles que duró 15 años, incluyendo un juicio completo y tres apelaciones al Noveno Circuito, concluyendo finalmente con una sentencia para los demandantes de más de 2.300.000 dólares. Estos casos ilustran el lema del bufete: compromiso – resultados. Hay que comprometerse con un caso, a veces durante mucho tiempo, para obtener el resultado que el cliente merece.

No siempre ganamos en el juicio. Cuando eso ocurre, el compromiso significa llevar el caso al siguiente nivel y recurrirlo. En el caso Rivero, antes mencionado, eso fue lo que ocurrió: el tribunal desestimó el caso -habíamos perdido- pero apelamos y conseguimos una victoria para nuestros clientes que mantuvimos a través de dos apelaciones más. Desde entonces, el bufete ha conseguido muchas victorias en apelación que reivindican los derechos de los empleados y los consumidores.

A lo largo de los años he sido abogado de los demandantes en numerosos casos individuales y acciones colectivas. Puede sonar cursi, o difícil de creer, pero después de todo este tiempo, y después de todas las grandes experiencias que he tenido, mi parte favorita de ser abogado es cuando consigo dar un cheque a mi cliente.



Facultad de Derecho, Universidad de California, Berkeley, J.D., 1986