After you've got the ring, and the date is set, you've got to find that perfect wedding dress.  When you finally find it, you do an initial fitting, place your order, pay your deposit, and then anxiously wait for the dress to arrive.  And wait.  And wait.  And wait.  As you get closer to your wedding day, you call the store for an update, but your calls go unreturned.  At some point, you give up and buy a different dress at the last minute from another store.  A true wedding nightmare.   One that led New York Attorney General Letitia James to take action to help ensure that, "no woman is left at the altar without the dress of her dreams." 

The NYAG's recent enforcement action against Apropos Prom & Bridal is a cautionary tale for retailers -- and also provides good insight into what kinds of procedures the NYAG believes that retailers should have in place when taking special orders. 

The NYAG alleged that Apropos Prom & Bridal took orders for bridal and prom dresses, required buyers to pay substantial deposits, and then didn't deliver the dresses when promised.  The NYAG also alleged that customers has trouble getting information about the status of their orders and were "strung along for weeks."  They were told things like, "the lace had to be ordered from China" and "the shipment was delayed due to a snowstorm."  Ultimately, many were forced to purchase substitute gowns elsewhere.  The store then refused to refund their deposits.  In addition, the NYAG alleged that some customers who did get dresses didn't get the dress that they ordered, but were given floor models that had defects or were the wrong size.  

The NYAG alleged that Apropos Prom & Bridal's actions violated New York Executive Law Section 63(12) (which prohibits "fraudulent or illegal acts" and "persistent fraud or illegality") and New York General Business Law Section 349 (which prohibits "deceptive acts or practices in the conduct of any business").  In order to resolve the NYAG's charges, Apropos Prom & Bridal entered into an Assurance of Discontinuance, agreeing to reform its business practices, pay penalties, and provide restitution to consumers. 

While you can't help but feel terrible for these poor couples who never got the dress that they ordered, what's most interesting about this case is how the NYAG expects the store to change the way it does business when it takes special orders from customers.   In the Assurance of Discontinuance, Apropos Prom & Bridal agreed to:

  • When accepting a deposit, provide a receipt describing the dress ordered, the amount of the deposit and the balance due, the date of the event, and the expected delivery date of the dress; 
  • Timely place the order for the dress; 
  • Upon learning that a dress is no longer available from the manufacturer, contact the consumer within two business days to offer a full refund; 
  • Upon learning that a dress will not arrive within one week of the promised delivery date, contact the customer with a new estimated delivery date; 
  • If the revised delivery date is more than three weeks late, and less than four weeks before the event, offer the customer a full refund; 
  • Record and track orders electronically; 
  • Use a phone system that allows customers to leave messages, and then respond to phone calls and e-mails within two business days; and
  • Conspicuously post the store's refund policy. 

The Assurance of Discontinuance also prohibits the store from misrepresenting the time frame within which a dress will be delivered or providing a consumer with a substitute dress unless the consumer agrees to accept a substitute and is given a discounted price. 

While the FTC's Mail Order Rule imposes specific requirements on retailers when they accept orders online and by phone and mail, this case provides useful guidance about the importance of acting responsibly when retailers accept special orders in-store.

What are some key take-aways here?  First, make sure that you've got a reasonable basis for the promises that you're making about when a product will be delivered.  Second, if you learn that a product won't be delivered on time, you should have reasonable practices in place to notify consumers and to provide refunds.  And third, it's important to have proper record-keeping and customer services processes in place to be able to track orders and respond to consumer inquiries in a timely manner.