Thursday, August 24, 2017

Rubenstein v. The Gap (Cal. Ct. App. - Aug. 24, 2017)

I'll be the very first person to admit that I know virtually nothing about "factory" or outlet stores.  If only because I don't buy clothing.  Ever.

But what very little I do know seems entirely consistent with Justice Lui's opinion today.  Which holds that it's not fraud (or unfair competition, etc.) for The Gap and Banana Republic to sell cheaper clothes at its "factory stores" that haven't previously been sold in their "regular" stores.  Because the nature of a "factory" store doesn't inherently represent that the same products are available in regular stores; instead, consumers simply expect that stuff in "factory" stores just means it comes from the underlying "factor"; i.e., the brand.

Seems right to me.  Sure, I sort of think that the stuff -- or at least some of the stuff -- in a factory store is probably sold at a "regular" store at a higher price.  But maybe it is, maybe it isn't.  That's up to the store.  I'm buying the stuff I'm buying because it seems like a good deal (or not).  There's no inherent misrepresentation just because you slap a "Gap" label on stuff that The Gap sells at its factory stores.  (Which, of course, was in turn likely produced in some overseas sweatshop.)

So putative class action lawsuit dismissed.