A putative federal court class action claims Toys “R” Us promised free gifts with online purchases and then substituted items of lesser value.
The plaintiffs say the retailer’s practice “constitutes a modern bait and switch scheme,” in which the company made pledges it never intended to keep.
The suit, Probert v. Toys “R” Us, 12-cv-7237, filed Nov. 21 in Newark, seeks damages on behalf of a nationwide class of website shoppers.
According to the complaint, customers are told their purchase will be accompanied by a specific, related item worth 15 percent to 25 percent of the item being purchased. For example, customers considering the purchase of a Barbie Doll for $75 were told it would include a free set of Barbie clothing valued at $15.
But the company only stocks an “exceedingly limited” number of the advertised gifts, or none at all, and as a result “is aware that few, if any, customers will actually receive the promised free gift,” the complaint says.
The class representative, William Probert of Fairfield, Conn., claims he was induced by the promise of free gifts with several items he purchased on Nov. 16. He bought two LEGO Ninjango Dragon Battle sets for $62 each, and says he was promised, as a free gift, two additional LEGO building sets selling for $15 each. But after making the purchase, he allegedly was told the promised gifts were not available, and instead he would receive two LEGO Christmas Tree figurines worth $5 each.
The same day, Probert bought two LEGO Red Cargo Train sets at $56 each, and again allegedly was promised a free gift of other LEGO building sets selling for $15 each. After making the purchase, he was informed that the promised gifts were out of stock and instead he would receive two LEGO mini figure magnets valued at $5 each.
The complaint alleges the company violated the New Jersey Consumer Fraud Act, stating that Toys “R” Us has structured its marketing scheme so the gift is “a material part of the consumers’ purchase of the underlying item.”
Probert claims that the representations caused ascertainable loss, injury in fact and lost money or property.
The complaint also raises claims on behalf of a subclass of Connecticut shoppers under that state’s Unfair Trade Practices Act.
It further alleges breaches of contract and of the implied covenant of good faith and fair dealing.
The plaintiff lawyers, James Shah and Natalie Finkelman Bennett of Shepherd, Finkelman, Miller & Shah in Collingswood, did not respond to telephone and e-mail messages.
The company’s communications department declined to comment.
Charles Toutant is a reporter for the New Jersey Law Journal, a Legal affiliate.