Can I Beg A Dose of Common Sense?

Gaveljustice The American legal system really is a mess. Whether it's the reluctance of the two parties in congress to address nominees for various federal courts or the constant tort claims, it seems that justice comes at an obscenely slow pace.

One of the reasons, however, that justice is often very slow in coming is due to the various lawsuits that are filed that truly seem meritless, a nuisance and meant merely to aggrandize the lawyers filing the complaint.

Take for instance this lawsuit recently filed against Beverages & More that claims their "5 Cent Sale" is deceiving. In the Wine Business Monthly article on the lawsuit we have this little revelation about the claim in question:

practice of using a fictitious, marked up, or otherwise misleading
regular price" is a deceptive, unfair and illegal practice,” alleges
the filing. Plaintiff Peter Gray Jr. of San Francisco seeks
restitution, damages, injunctive relief, and attorneys' fees, claiming
to have been “actually injured as a result of BevMo’s conduct in an
amount not less than the difference between what he paid for the two
“regular” price bottles of wine (a total of $17.98 plus tax) and what
he should have paid if BevMo had sole the bottles at their actual
regular prices (a total of $12.98 plus tax).”

If you read this closely, the plaintiff in the case is claiming he was "injured" to tune of at least $5.00.

I'll tell you what, Mr. Gray, give me a call and I'll shoot you a check for four times that amount if you choose to drop your lawsuit and give our legal system a small break. I'll consider it the completion of my civic duty for the day.

Gray claims that with some wines the "regular price" advertised is in fact a higher price than what would be considered "regular" prior to the 5 Cent Sale. BevMo claims the lower-than-regular prices Mr. Gray has seen on some wines actually represents their "Club Bev" prices on some wines.

Who Cares? Really. Who Cares?

There's no question about it. Americans are in desperate need of tort reform as well as a dose of common sense. And some Americans need to do something with the time they have on their hands besides filing seemingly ridiculous lawsuits. Tell you what, Mr. Gray, in addition to giving you a check for 4 times the the least amount you were supposedly injured by BevMo, I'll also throw in a beginners book on wine. Maybe that will occupy your time and save us Californians from footing the bill so you can retrieve your $5.00.

18 Responses

  1. Derrick Schneider - November 10, 2009

    If BevMo really is guilty of this, will you make the same offer to everyone who’s been brought into the store by false advertising?
    I have no problem believing that a big, profit-centric corporation would do something along these lines, and if they did, they deserve to pay the penalty. Individual shoppers don’t have the ability to filter and research every store’s claim; that’s why false advertising laws are in effect.

  2. Tom Wark - November 10, 2009

    How are you? I’ll put my money on BevMo on this one. Pretty smart people over there.

  3. Larry Chandler - November 10, 2009

    If the BevMo prices were in fact Club Bev prices, then it seems they are in the clear. But otherwise there is an ethical issue. It would be false advertising in that case. Some states require stores to state that the original prices may not reflect their actual selling price. And this is why some stores say “made to sell for” or “sold elsewhere for” before listing the original price.
    Even though the dollar amount in this case is trivial, the principle is not.

  4. Bob R. - November 10, 2009

    Despite being a lawyer, I do agree that our lawsuit-crazy justice system has gotten out of control. However, as a consumer, I am often irritated by claims that something is “50% off” the fictitious “regular price,” or “regularly $45.99, now $11.99”. In the present case, though, I have no idea what the facts are. But I have seen enough of this type of advertising in numerous areas.

  5. Lou - November 10, 2009

    You make a good point Tom, but as others have mentioned, in this specific case it might be that he is concerned more with the injunctive relief (stopping their questionable advertising practices) and not necessarily the money damages.

  6. Mark - November 10, 2009

    It’s this kind of thing that makes my company keep a lawyer on the payroll….are we going to get sued if a customer doesn’t like a shipment even if we refund their money due to pain/suffering of drinking wine they did not like? It also causes us to have our terms/conditions on our website in plain view.
    You’re right-what a mess!

  7. Derrick Schneider - November 10, 2009

    I’m good, Tom, thanks.
    I’d certainly put my money on BevMo winning the case: Large pools of lawyers are good allies, and I’m sure they’ve been very careful to make sure they’re operating in the letter of the law. But I think that large corporations come up with all sorts of things that are legal but not always ethical in the interest of increasing profit (and/or shareholder value, if they’re publicly traded), and so I am automatically suspicious of their activities.

  8. Michael Kirsch, M.D. - November 11, 2009

    No one understands this issue better than physicians. Yet, lawyers defend the current tort system as our nation’s shield against injustice. Here are 4 points that we physicians feel defy justice.
    The tort system:
    (1)Is unfair to the medical profession abusing innocent physicians
    (2)Causes billions of $$$ in defensive medicine, tests you don’t need
    (3)Misses most cases of true medical negligence
    (4)Often enriches lawyers more than the injured patients.
    The legal system is more dysfunctional and unfair than the health care system. See

  9. Samantha - November 11, 2009

    As a person I agree that the lawsuit is silly but as a retailer, I think it’s time BevMo got called out for this misleading promotion. Common sense dictates that no retialer, even a big one like BevMo is not going to give anything away or sell wines for a nickle. That being said when I saw a wine that we are selling for $7.99 as part of their “Buy one get one free plus a nickle” or whatever deal, and they had the same wine retailing for $18.99 it just pisses me off and does, to me seem like they are taking advantage of people’s inexperience and I’m sorry that just bugs the hell out of me.

  10. Wine Harlots - November 11, 2009

    I’ve always thought the price points were off at BevMo, when I first saw the 5 cent sale it confirmed my suspicions.
    Rarely shop at BevMo, as a consumer I don’t have the energy (or time) to remember the retail prices of my favorite wines. BevMo lost my trust and I hate shopping in establishments when I feel like I’m a mark or a rube.

  11. Thomas Pellechia - November 11, 2009

    I agree and I disagree with you. Sure, there is work to be done on tort reform, but there’s also work to be done when a business steps over an ethical line.
    Having said that, I am eternally amazed that after 8,000 plus years of experience humans still believe in the concept of a “retail sale.” In my jaded view of the world, if something is on sale it was likely over priced to begin with, but if a retailer promises to give something away, it’s a red flag that you are being robbed.
    How many eons will it take for adults to understand that retailers are not philanthropic or charity outfits but businesses that need to make a profit.
    In an ideal world, retailers would charge a fair price and hold their advantage over other retailers through providing the better service. In a less than ideal world, consumers need to open their eyes.
    No tort reform will ever stop the greedy from being greedy and the gullible from being gullible.

  12. Laurel (aka CorkPopper) - November 11, 2009

    I don’t know the details of the BevMo case, but as both a lawyer and a wine drinker, I can definitely see both sides of the greater issue. On the one hand, retailers like BevMo need to be held to account for deceptive practices, and sometimes a big class action lawsuit is the only way to make that happen since, as you point out, each individual’s actual damages are so small. (That said, it is also true that our legal system has huge built-in incentives (in the form of automatic attorney fee awards) for greedy class action lawyers.)
    On the other hand, consumers need to be realistic and take some responsibility for their own (perhaps occasional, perhaps frequent) stupidity. Businesses don’t do special offers as a matter of charity. They’re businesses, and their goal is to make money. Deal with it, or don’t shop there.
    Cheers, and thanks!

  13. Scott - November 12, 2009

    It’s great to hear Tom Wark say “Who cares?” regarding some insignificant quibble somebody has over an inconsequential issue. Just saying.
    Sometimes questions that we fool ourselves into believing are worth making a stink over really don’t matter very much to everybody else.

  14. Tish - November 12, 2009

    I confess I misread this brouhaha originally, thinking that some govt agency was calling out the BevMo practice. A consumer lawsuit is indeed absurd, although I agree with many of the comments above: this stuff should not be happening.
    It’s a very tricky situation… Shopper who buys one bottle for $18.99 and the second for a nickel KNOWS he/she is buying two bottles for $19 basically, or $9.50/bottle. THat part is fair, but the implication that the bottle — solo — is worth $18.99 is indeed deceptive IMO.
    DOesn’t it also make you wonder more about all sorts of “sale” vs. “original” pricing offers out there. Just today got and email offere for Petrus 2004 – “originally priced at $1 299.00 and available now for only $439.99.” Originally $1,299? Quick search turns up mostly prices around $1,000. So this is apparently a “real deal”. Still… that huge gap… seems too odd to be real.

  15. Steve Boyer - November 12, 2009

    How many too good to be true deals does a person have to get burned by before learning to be a bit cautious and taking the time to educate themselves even a little bit. Actually believing that he is getting a bottle of wine for 5 cents???? Sounds like a P.T. Barnum’s best customer.
    Take responsibility for your own decisions and actions. Choose where to shop as well as where not to shop.
    Screw me once shame on you….
    If more consumers voted with their feet and their wallets and less with their lawyers our “free market” would take care of itself.

  16. Ray - November 23, 2009

    As a retailer of wines, spirits and beer, I wonder how many small liquor retailers has BevMo steamrolled out of business with this kind of promotion.

  17. jsm - April 14, 2015

    As a BevMo fan who has bought hundreds of bottles under this promotion, I think that if the allegations are true, this is indeed lame. When one is in a reputable place of business, and they are stating that the retail price is x… well, customers should be able to trust that. What is the alternative? That I research every bottle of wine I buy to make sure that the wine shop is not lying?

    I’m not buying the caveat emptor argument on this one. If this is indeed true, BevMo can go to you know where, as they have blown my trust as a customer completely!

  18. Ryan - November 2, 2015

    This is exactly what BevMo did for years. Employees are directly instructed not to talk about “normal sale prices” versus the suddenly amazing 5 cent pricing. Wines are never half price for BevMo and the wines that end up on this sale have the highest mark-up percentages from cost to regular retail, knowing that they will NEVER be sold at that “regular” price.

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