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As a certified public accountant, David Simon’s job is to keep close tabs on his client’s bottom line. So when he noticed that the prices of some of the items he bought at Office Depot varied, depending on whether he purchased them at a store or through the store’s catalogue, it raised his suspicions. Cheryl Cohen of Georgia also questioned Office Depot’s pricing policies after she purchased a printer cartridge and file folder through the store’s catalogue and later found she could have saved $2.30 if she had purchased them at a store. Delray Beach, Fla.-based Office Depot promised on its catalogue, “Low prices guaranteed, every item every day.” Simon of Miami and Cohen are name plaintiffs in a suit filed this week in Miami-Dade Circuit Court against the Delray Beach-based office supply company, alleging that the company’s low-price guarantee advertising is deceptive. The suit, which seeks class-action status on behalf of more than 1,000 Office Depot customers in Florida and Georgia, alleges they were led to believe they would get a better deal by ordering through the catalogue than by buying through the store. The suit seeks unspecified compensatory and punitive damages and alleges, among other things, unfair and deceptive trade practices. It seeks to prevent the chain from continuing to make such pricing claims. If the lawsuit sounds familiar, it’s because Simon filed a similar suit about three years ago, but dropped it after Cohen filed the same suit in federal court in Miami on behalf of some 39,000 Office Depot customers nationwide. Then, in April 1998, U.S. District Judge Joan Lenard dismissed Cohen’s suit. Lenard ruled the $2.30 Cohen alleged she was overcharged was well below the $75,000 in damages required to get a case heard in federal court. Last August, a federal court in Atlanta reinstated the suit, ruling that a Florida state law regarding punitive-damage pleading requirements do not apply to class-action cases involving more than one state. But it didn’t stop there. In February, that same court vacated its previous order and affirmed Lenard’s ruling. Alvin Lodish, the attorney who represents Simon and Cohen, was granted a stay of the ruling last week so he can pursue the case to the U.S. Supreme Court. So, why the suit in circuit court? “If the case is dismissed, the statute of limitations could run,” said Lodish. “To protect their claims, we have filed the case in state court asking for class certification for the state of Florida and Georgia.” Simon, in his suit, claims that items purchased through the catalogue were 4 cents to $1.50 more than they would have been had he purchased them directly from an Office Depot store. While it doesn’t sound like much, Simon says consumers need to look at the percentages. “When you have a net income of 20 percent and you can get an extra 20 percent … that’s like doubling your bottom line,” said Simon. “You can’t look at it as dollars and cents, you have to look at it as a percentage.” Eileen Dunn, vice president of investor and public relations for Office Depot, said she had not seen the suit and declined to comment. However, when Simon filed his original suit three years ago, an Office Depot spokesman said catalogue and store prices sometimes differ because the catalogue is published only twice a year. He also said customers may pay more for the convenience of ordering by catalogue and that catalogue prices are sometimes lower.

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