Have you ever printed a coupon or tore open a package that promised “$1 off” your next purchase – only to find that the coupon was actually for “$1 off two”? It’s disappointing, and sneaky, but is it illegal? That’s what a federal judge is being asked to decide.
The coupon in question was actually one that offered a free ski lift ticket, for Shell gas station customers who purchased at least ten gallons of gas.
Pretty good deal, huh? That’s what Oregon resident John Kearney thought, when he filled up at a Shell station back in 2012. But when he asked for his free ticket, he was given a “buy one get one free” coupon that required the purchase of a full-price lift ticket instead.
That free ticket turned out not to be quite as “free” as Kearney thought. So he sued, on behalf of himself and some 70,000 other customers who participated in the promotion.
A federal judge last week denied Shell’s motion for dismissal, finding that Kearney had made a reasonable case that he was deceived into purchasing gas with the promise of a specific reward that he was not given. “The only advertisement the consumer saw was the sign stating, ‘buy 10 gallons of fuel, get a voucher for a free lift ticket’,” the judge’s decision read. While not ruling on the specifics of the argument, the judge’s decision does allow the case to proceed.
Kearney had argued that at the time he purchased his fuel, there was “no clear and conspicuous indication of the terms, conditions, and limitations of the offer.” The fact that the “free” ticket was really a “buy one get one free” offer was disclosed only after he made his purchase and was handed the coupon. In addition, the coupon could be redeemed only at a handful of ski resorts, during certain days and times.
Shell argued that the terms and conditions were posted at participating gas stations and on its skifreedeals.com website. Kearney’s argument is that this information should have been made more conspicuous, and volunteered to customers before they decided whether to fill up at Shell. Billboards advertising the promotion couldn’t possibly contain all of the restrictions, but if a billboard lured a motorist to a Shell station and caused them to spend their gas money for a freebie that wasn’t really “free”, Kearney’s lawsuit essentially alleges that it amounted to an illegal bait-and-switch.
The lawsuit seeks class action status, based upon an estimate that more than 70,000 Shell customers redeemed their buy-one-get-one-free coupons, and a whole lot more received the coupons and decided not to use them once they discovered they weren’t really just for a “free” ticket.
So does that mean you can sue, the next time you expect a free coupon, or a $1 off coupon, and get one that requires multiple purchases instead?
Well, if a printable coupon offers $1 off, and you don’t discover until you print it that it’s really $1 off the purchase of two, there’s not much you can do, even if that information was not disclosed before you printed. You could try to sue for the minuscule cost of the piece of paper and ink that you used to print the coupon. But otherwise, you really didn’t have to pay for anything in advance to receive it, so you’re not financially harmed from having printed it.
The key in the Shell case is that receiving the coupon required a prior purchase. By purchasing gas with the understanding that a free coupon would be offered in return, Kearney argues that a contract was established, and that Shell failed to live up to its end of the bargain. Similarly, if a product package promises a “$1 off coupon inside”, and it’s really $1 off 2, that fact had better be noted in the fine print somewhere on the package – or you might indeed have a case.
Meanwhile, Shell has continued to offer its “Ski Free” promotion, and its skifreedeals.com website is already promoting that the offer will be back starting next month. Unfortunately, the links to “How it Works”, “FAQs” and “Complete details” are not working at the moment.
Let’s hope Shell fixes that fast. Otherwise, it could ultimately be ordered to shell out a lot more than buy-one-get-one-free coupons.
