Were you a victim of false advertising?
Feel duped? Angry? Want justice because some company's dishonest business practice led to their undeserved profit and your undeserved loss and pain?
It doesn't matter if your loss was to the tune of only a few bucks. When companies lie, it's not right. In this country, there is more than enough legitimate business opportunity out there and no excuse for deceitful business practices. It destroys the fabric of community, promotes distrust, and bottom line should not go unchecked or unpunished.
That's why I'm venturing into the practice area of going after false advertisers.
Who am I?
In the spirit of full disclosure and honesty, it's important I start by explaining that I am not yet an expert in false advertising law. It would be hypocritical of me to go after false advertisers by attracting potential clients with the claim that I myself am currently an expert in the field. My expertise, at least at this point in my career, is mainly confined to criminal law. I was a criminal prosecutor for years who later opened my own private criminal defense practice after leaving the DA's Office. And although I have taken a few civil cases and have some experience in civil litigation at some law firms over the years, ultimately my bread a butter remains criminal law.
That said, I loathe false advertising and I see a need for more lawyers in this area of law. There are certainly a number of firms out there looking for their next big consumer class action case. But what about the thousands of people out there who may not want to be part of a class action or who may not have a case that meets the criteria for a class action? What about the people who just want to see the company fix the problem? I'm all about justice, but I'm also all about giving companies the opportunity to right their wrongs and redeem themselves. After all, I am a criminal defense attorney. My career is focused on helping people get second chances. Companies with bad business practices can fix things and do the right thing. But when they're warned and fail to correct the error in their ways, lawyers need to get involved.
How do you go after false advertisers?
There are different ways to do it. For example, say you were duped into buying a product based on a picture in its packaging that was misleading. The manufacturer should have known better and you can infer you knew exactly what they were doing by using the deceitful picture. Say that product only cost you $10. Now you can do what most people do and just chalk it up to a bad decision. Or you could simply go return the product and get your money back.
But these common options mean that this company continues to profit from their fraudulent ways. It means others have been and will continue to be taken advantage of. It takes a little courage and effort, but you could effectuate change by seeking to hold the company accountable for their unjustified business practices.
So now you're convinced you want to be a champion for the good of the public; you want to call this company out. What are your options? You can take to social media and complain about this company. However, to really amplify your voice and potential influence, you may need to file a lawsuit.
Filing a lawsuit - Is it worth it?
The first question is often what are the costs? See odds are the product you purchased is less than $10,000, which means, if you're going based solely on the money damages, you can only sue in small claims court. And in small claims court, you can't use an attorney, which means you'd be going to court on your own against this company over a seemingly $10 dispute. Odds are you're not going to want to deal with that.
HOWEVER, you're not just seeking to redeem $10. Your case is more significant than that; you're seeking to prevent this company from continuing their deceptive business practice. The legal language for that is known as an "injunction," meaning you're trying to enjoin (or stop) a party's behavior. Seeking injunctive relief is an equitable matter, not economic. In other words, it's not about seeking damages or money. Based on that distinction, you can file the case in superior court, not just small claims, which makes it a more serious matter -- or at least something the company will take more seriously. Why? Because it's more expensive to defend against now.
But it's more expensive for you now, too. Just to file a case alone will cost $370-$435 (depending on whether you file your case a limited civil or unlimited civil, to be discussed later). You'll have to serve the other party with notice of the lawsuit, which costs money. You'll have to post a jury trial non-refundable fee of $150. And then there's all the other costs to actually litigate the case, which quickly racks up into the thousands. The bottom line is this is a lot to undertake on your own.
Enter the lawyers.
Here's the great news! This is a consumer case, which means the law is structured in a way that the false advertising manufacturer or company will have to pay for your legal fees and costs if you win your case. That means someone like me may be willing to front the costs of your lawsuit and pursue the matter without you having to fork over a dime out of pocket in the process. In other words, the law makes it financially possible for everyday folks to go after big companies who have huge resources and often teams of lawyers. Each passing day that your attorney works on your case, the higher and higher the legal fees accrue. That becomes a significant bargaining chip when seeking to persuade them to invest in changing their advertising. It costs them money to change an ad, but it may costs them a lot more if they fight the lawsuit and lose.
And then there's the most powerful tool -- the threat of a viable consumer class action. If you were duped, the odds are hundreds or possibly thousands of other customers were, too. If a court was convinced that your case was a representative sample of a large class of other similarly situated people, then the potential financial liability or exposure to the company you're suing substantially increases.
The pen can be mightier than the sword
Yes, as a trial lawyer, I live to argue cases in front of juries. But what I care most about is doing whatever is best for my clients. Litigation and going to trial is not always the path to take, even if the end result is great. So, while rushing to file a lawsuit could in the end lead to a positive outcome, if a simple letter does the trick, all the better! Unfortunately, even when your case is strong, many companies will dig their heels down and refuse to admit any error in their ways essentially leaving you no choice but to file suit. However, some companies do redeem themselves and offer solutions that are reasonable. My mantra, as explained above, is to give the company a chance to right their wrong before resorting to litigation. Also, depending on which specific law you allege was violated, the law may require you first give the company notice to fix the problem before you're allowed to sue. Regardless, I think it's the best practice to have a lawyer write a letter before taking any other steps.