Last week, Vineyard Vines ("VV") lost its motion to dismiss a consumer class action brought over the retailer's pricing practices. See Casio et al v. Vineyard Vines, 2021 WL 466039 (E.D.N.Y. Feb. 9, 2021).

According to the complaint, Vineyard Vines’s outlet stores use price tags that show a “Suggested Retail” price followed by “Our price.” 

Plaintiffs—consumers who bought products in the company's outlet stores in New York and New Hampshire—argue that use the word “retail” in this way implies that the outlet stores offer exclusive products that are identical to those sold in the “retail” stores, and that products sold at VV outlet stores are of the same quality as those sold in its retail locations.  Yet despite their similarity in appearance and classification, the Plaintiffs allege that the company's outlet products are of distinctly lower quality.

According to the complaint, the difference in quality is evinced through the care tags.

In particular, Plaintiffs point to the fabric used in the outlet products, which they describe as lower quality than the fabric used in the products’ “retail” store counterparts. According to Plaintiffs, by labeling the outlet store-products with tags that include suggested "retail” reference prices, Defendant implies that the items are sold at Vineyard Vines's ‘retail’ stores at the reference points. The tags, therefore, represent to consumers that the quality of the items offered in the outlet stores are identical to the quality of the items offered in its retail stores. In reality, Plaintiffs claim, the products at issue are made exclusively for the outlets and are not of the same or similar quality as the retail products.

The plaintiffs allege: (i) violation of New York General Business Law Sections 349 and 350, New Hampshire Consumer Protection Act Section 358-A-1, the Magnuson-Moss Warranty Act, and (ii) unjust enrichment.

In denying Vineyard Vines' motion to dismiss, the Eastern District of New York stated that, at this early juncture in the case, the Court was unable to determine how a reasonable consumer would perceive the challenged price tags.

We'll see what happens as the case proceeds.  In the meantime, what's the takeaway?

Deceptive pricing cases have exploded in recent years.  And while we've seen an increase in retailer success in many of these cases—including in Rubenstein v. Gap, where a California appellate court found as a matter of law that "selling nonidentical brand name clothing in a factory store is not fraudulent” (222 Cal. Rptr. 3d 397, 404 (Cal. Ct. App. 2017)—it remains important to be cautious in this area.