Confused and Annoyed by Kohl’s Cash Policies? Too Bad, Says Judge

Kohl’s rules about using coupons and Kohl’s Cash may seem confusing, they may seem unfair, they may even seem sneaky – but they’re still not illegal. Another judge has ruled in the retailer’s favor, swatting down another lawsuit filed by disgruntled Kohl’s shoppers who were upset about the way Kohl’s Cash is applied when making purchases.

A California judge has granted Kohl’s motion for judgment on the pleadings, which essentially ends the case filed by shoppers Crystal Waters and Tony Valenti two and a half years ago. The decision came several months after the judge dismissed a key part of the plaintiffs’ case, ruling that “no reasonable consumer would be misled” in the way that the plaintiffs claimed they were.

Waters and Valenti had argued that Kohl’s is engaging in “a massive fraud,” by implying to shoppers that Kohl’s Cash can be used as actual cash, but applying it in a way that’s very different from cash. In doing so, they claimed, Kohl’s has “created a scheme whereby they make it appear that Kohl’s Cash and percent-off discounts have greater value than they actually do.”

Kohl’s gives out Kohl’s Cash during certain promotional periods. For every $50 that customers spend, they earn $10 in Kohl’s Cash that can be used for a discount on a future purchase. $10 in Kohl’s Cash gives you a $10 discount on a purchase, which Waters and Valenti said “infers, implies, and/or represents that Kohl’s Cash can be used as actual ‘cash’.”

But Kohl’s also offers frequent percent-off-your-total-purchase coupons. And that’s when Kohl’s Cash is decidedly not applied in the same way as actual cash. Instead of applying the percent-off coupon to your total first, and then letting you use Kohl’s Cash to pay the balance, Kohl’s deducts your Kohl’s Cash first and then applies the percent-off coupon to the remaining balance.

The lawsuit used a hypothetical purchase of a $100 item with a 20% off coupon and $60 in Kohl’s Cash to explain how it works. If Kohl’s “treated Kohl’s Cash as actual cash,” the lawsuit stated, Kohl’s “would first apply the 20% discount to the $100, and then deduct the $60 in Kohl’s Cash, leaving the customer with an out-of-pocket expense of $20.” In practice, though, Kohl’s will “first deduct the $60 in Kohl’s Cash from the $100… and then apply the 20% discount to the remaining $40, leaving the customer with an out-of-pocket expense of $32.” So instead of paying $20, the customer has ended up paying $32.

Even though Kohl’s notes in its coupon policy and on its Kohl’s Cash certificates that “Kohl’s Cash is not legal tender”, Waters and Valenti claimed that the very name “Kohl’s Cash” suggests that it can be used that way, and is therefore misleading and deceptive.

Kohl’s disagreed. In its official language describing the Kohl’s Cash program, Kohl’s pointedly calls the certificates “Kohl’s Cash Coupons”. No matter what they’re called, though, the plaintiffs “cannot claim to have mistaken the coupons for cash, any more than Froot Loops cereal could be mistaken for actual fruit,” Kohl’s argued in its response to the lawsuit. Calling the coupons Kohl’s Cash, the retailer argued, does not “create an obligation or promise to consumers that the coupons would be processed identically to actual U.S. currency, as Plaintiffs seem to want.”

Instead, Kohl’s said its Kohl’s Cash policies are clear. “When customers use those coupons in conjunction with a percent-off discount coupon, Kohl’s will process the two discounts in exactly the manner Plaintiffs allege it did,” Kohl’s stated. “Plaintiffs do not cite law or regulation requiring Kohl’s to process two coupons on the same transaction in the order they prefer.” And the assertion that the name “Kohl’s Cash” is misleading falls flat, Kohl’s said, because “Plaintiffs cannot quote two words from the coupon and ignore the rest, where Kohl’s explicitly advised them of the order in which the multiple coupons would be honored.”

Earlier this year, the judge in the case considered Kohl’s motion to dismiss one of the plaintiffs’ claims, that Kohl’s policies violate the state’s Consumer Legal Remedies Act. In considering the request, he based his decision on “what a person of ordinary intelligence would imply” from Kohl’s policies. “Based upon the evidence presented and the specific plain language of the coupons in evidence,” he wrote in his decision, “no reasonable consumer would be misled regarding the use of the Kohl’s Cash coupons.”

With one of the plaintiffs’ claims dismissed, Kohl’s argued that the same logic should be used to shut down all of their claims. And now, the judge has agreed, bringing an end to the dispute.

The ruling is yet another victory for Kohl’s, and yet another disappointment for shoppers who feel the way Kohl’s applies its coupons is confusing, unfair and misleading. Just last month, an Ohio shopper who sued over similar issues lost an appeal to an earlier ruling in Kohl’s favor. Laura Henry had argued that Kohl’s did not adequately explain to shoppers the order in which coupons and Kohl’s Cash would be applied. But the appeals court upheld a lower court’s ruling that Kohl’s was free to apply its discounts in whatever order it wants, and that Henry had no “reasonable belief that Kohl’s Cash would not be applied first.”

As for the California case, the plaintiffs’ attorney Jordan Esensten told Coupons in the News nearly two years ago that “Kohl’s has been using the deceptive practices with respect to Kohl’s Cash to ‘nickel and dime’ customers out of the full value of Kohl’s Cash for too long now.” Kohl’s shoppers, he said, “deserve to know the truth” about how their Kohl’s Cash is really applied.

And now they do. But according to at least three courts and counting, there’s just nothing they can do about it – except, perhaps, by choosing to do their shopping somewhere else.

Image source: Kohl’s