November 28, 2006 -
Console bundles suck harder than a 14 amp vacuum cleaner. You know it. We know it. And now Shelley Peruso knows it.As reported by Pennsylvania’s WJAC-6 News, Peruso slapped down a C-note at a Saturday Matinee to reserve two Wii consoles back on October 13th.
When she tried to pick up the goods last weekend she was caught off guard by a store employee who told her she’d have to buy two games for each Wii. The two-game policy was apparently enacted during the last week in October - nearly two weeks after she placed her pre-order. As if that wasn’t bad enough, Peruso was also informed that she had missed the cutoff that would guarantee her a Wii by Christmas. The frustrated consumer said:
I'm disappointed that now they're changing the rules of the game midstream. I don’t think that’s fair. It's almost like a bait and switch tactic.
For her part, Peruso is writing the chairman of Transworld Entertainment, owners of the Saturday Matinee, and filing a complaint with the Federal Trade Commission's Bureau of Consumer Protection.
I'm going to leave my reservation where it is right now. If I happen to get lucky and come across two systems, I will purchase them elsewhere.
-Reporting from San Diego, tragically Wii-less GP Correspondent Andrew Eisen
Comments
At the F.Y.E where I reserved my Wii system, the manager's only calling people whose systems have come in. A bunch of people showed up on launch day hoping to get their systems but someone stuck their head out the door and basically said that if you didn't get a call the day before, you weren't getting a Wii. So many disappointed people left that morning.
I'm still waiting to hear from them about mine. I missed by one person; a store employee who was allowed to cut in front of everyone.
Something similar to this happened at my local mall where the EB games was pushing the reserve two games to get your console crap and the game stop at the other end of the mall wasn't. Mostly, it was a ploy to get their numbers up and the Game Stop employees were all complaining because it is a rather unfair way to boost sales and force customers to pay more.
This is just greed, but I think this lady needs to calm down, she tried reserving two consoles at once when most stores enforce the 'One Reserve per household' rule. It sucks that they messed up her reserve and screwed her over, but she was going to have buy games sooner or later.
She IS complaining to the stores and not Nintendo:
"For her part, Peruso is writing the chairman of Transworld Entertainment, owners of the Saturday Matinee, and filing a complaint with the Federal Trade Commission’s Bureau of Consumer Protection."
Transworld owns the store, and the FTC is the government organization that protects customers from bad company ethics.
She's still trying to get her Wiis and is not taking this as a slight from Nintendo at all.
She's not stupid. She knows what she pre-ordered, and that's not what they're giving her now. THAT'S fraudulent advertising, breach of contract (a pre-order, once money is put down, is equivalent to signing the deal).
By changing the rules after money was exchanged, the store forfeits it's right to hold onto that C-note. The least they owe her is a 100% refund.
The store. She's smart enough to know that the local store decided to change it's sales policy, and that Nintendo really has nothing to do with it...
This situation, though, is completely different. There is no shortage of Wii's. All pre-orders can be met, so why are they forcing a customer to buy games when they'll probably buy them anyway. People don't like being forced into things.
Is it just me or is it strange to be discussing someone who actually has a legitimate complaint about video games for a change?
The lady only does have the disadvantage of purchasing 2 Wii's, however since this as a form of contract, the store should be able to give out both Wiis to her.
Seriously, this is easily a win for the lady. I fail to see how she could lose this one.
Not sure about the deadline thing. If she wasn't told in advance, then they should get in trouble. In fact, if they didn't advertise in advance that there would be a deadline, then they should be in trouble too.
I think she'll have a better chance with the bait and switch argument. Sounds like, from other posters, this company has a bad rep.
I wonder if they are a part of any of the industry's merchant association. Hey! Here's a good idea: Someone give her a free subscription to that new consumer organization run by Hal Halpin. Let's get him and their organization in on this. Let's put the organization to the test here.
nightwng2000
NW2K Software
@mike that sucks about the employee, and its why gamestop doesn't allow employees to pre-order systems like dat.
I hope the store caves. They're trying to cheat her.
I remember Best Buy got hammered by a state attorney general because they did this for the 360.
These kind of business practices are why B&M stores are faltering to Online stores. Not because of better selection, but be cause if they tried pulling this stuff they'd be hammered for credit card fraud..
@Beacon- Umm what planet are you living on? No shortage? There most certainly is a shortage. 1 Million units were available at launch(in the US) and Nintendo will be pumping out as many as they can till the demand dies down, but as an educated guess they may pump out perhaps 4 million(again for the US) total before christmas....I think they will sell those out as soon as they hit the market if the current trend follows. Just try to find one you'll see...
What makes you think she's a reseller?
It seems pretty clear that she wants those Wii's before christmas, and if she is a grandmother than she could easily have more than one set of grandkids to give those wii's too. Also, the cost of the two wii's alone is $500, the cost of two games per console would be another $200 on top of that; and if she's already retired, that extra $200 is not exactly something that she is willing to afford. Not to mention she may have even made plans with her other relatives, she gets the Wii's and the relatives get the games. My family has done that from time to time.
Granted she wouldn't be complaining if the price had dropped. But the scope of the argument is whether she can legally be asked to pay MORE after the contract to purchase was made. Which is of course, a resounding NO. And whether this contitutes fraud, which is a resounding YES.
The least they owe her is her money back for the deposit. The worst for them is if the FTC decides that changing the pre-order to a higher price after the deposit was made constitutes bait and switch.
Bait and switch is illegal, because it's false advertising with the intent to deceive the customer into shopping at your establishment rather than a competitor. Dropping the price after they enter the store isn't fraud, it's sweetening the deal. Increasing the price after they enter the store IS fraud, because they might not have entered into trade with you otherwise.
Delivering late wouldn't be fraud, because they're not changing the terms of the contract she made (unless they guaranteed a delivery date when she plopped down the C-note). Telling her that she can't have the console they have in hand because she refuses to buy extra gear? That's bait and switch.
c. Modifications to Prices or Billing Terms. FYE.COM RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR PRODUCTS OR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SITE OR BY EMAIL DELIVERY TO YOU.
Oops, you didn't read the terms of agreement? Not their fault. They have every right to do this legally. Morally, it may be despicable, but legally, there's nothing the old bag can do.
You are aware that such details can be trumped by local contract laws, right? Simply because there's fine print somewhere, doesn't automatically make it legal. Try enforcing most EULAs...
And if the pre-order requires a deposit, then yes, it is a done deal. It's a partial fulfillment of contract. The only way the store can change something legally, is to refund her deposit (cancelling the contract).
Bait and switch rules can still apply here, even if they refunded her money.
What Zeratul said is also true. She agreed to buy the Wii, sans the extra games. She put down money to pre-order the Wii sans the extra games. Now they're saying she can't have the Wii, unless she buys some other games.
That's not a pricing change, that's a complete product replacement. (And it doesn't matter if it's "mostly" the same, if it's not what was advertised when she put the money down, then it's different enough).
Had they run out of regular Wiis, and offered to replace hers with a bundled set at the original price, that would have been legal. But asking more money for the "upgraded" package is in violation of the contract they agreed to by taking her money, and a violation of bait and switch rules.
Here's an example. I see an ad for product A, coming out next week. In store #1, it's advertised for $100. In store #2, it's advertised for $90, as long as I put down $50 deposit to hold it. So clearly wanting to save $10, I go with store #2 and put down the deposit. A week goes by. I go into store #2, and am told that I can't have product A unless I also buy product B, worth $15.
So the immediate result is that they owe me the $50, no excuses, since by demanding I buy item B in order to acquire item A, they are in violation of the original contract signed (and yes, them accepting my $50 deposit is considered signing of the contract). On top of that, they could be charged with bait and switch, because had I know originally that the end price would be $105, I would have gone to store #1. So they fraudulently advertised a price & product list in order to get me in the door.
Oh, and the reason that it's ok to substitute a more pricey item for the original price, is because it's assumed that had you offered to cancel the contract and re-negociate with the new gear at the original price, the customer would clearly agree to re-sign the deal. So the re-signing is considered automatic, because the customer's terms haven't changed, and yours have clearly benifited them.
Imagine if the customer came back and only offered to pay 90% of the remaining price. Clearly the company would object, and cancel the contract...
It does feel kind of strange, but it's oddly refreshing to agree with the complaints GP reports on for a change.
Which means the store can do whatever they want. If the lady doesn't like it? She gets her money back and takes her business elsewhere.
If there were no refunds allowed, then I'd say there's definitely something foul about it. As it is, I can't say if this is illegal or simply underhanded.
And I second the mention on EULA's being a joke. Alas, the legacy of our litigioius society.
Consider:
-If changing a single unit to a bundle IS creating a new product, then the retailer offered a price they knew to be false in order to trick customers into buying a more expensive product. End result: clear violation of bait and switch laws.
-If changing a single unit to a bundle IS NOT creating a new product, then the retailer misrepresented their intentions in order to trick the customer into entering their store/buying their product. End result: clear false advertising, possible violation of bait and switch laws.
There is no way to look at this where the retailer is not engaging in some form of illegal practice.
What evidence do you have that she's a reseller? To most of us she sounds like a smart old lady that realizes someone's trying something foul, and is willing to call them on it. Not to mention I doubt a reseller would balk at picking up the extra games as the end cost would only eat into profits a little, if at all. Whereas a grandma that was going in with some other relatives to split up games and presents among several people would obviously balk at being forced to pay more to buy additional items to get what she had already reserved. And anyone that was getting a Wii as a gift for someone would be peeved if they were suddenly told that one can't be guaranteed before Christmas.
"TRANS WORLD ENTERTAINMENT CORPORATION CODE OF ETHIC - GENERAL STATEMENT OF POLICY:
* Honesty and candor in our activities, including observance of the spirit, as well as the letter of the law;
* Avoidance of conflicts between personal interests and the interests of the Company, or even the appearance of such conflicts;
* Avoidance of Company payments to candidates running for government posts or other government officials;
* Compliance with generally accepted accounting principles and controls;
* Maintenance of our reputation and avoidance of activities which might reflect adversely on the Company; and
* Integrity in dealing with the Company's assets."
Also, and perhaps more importantly, the Pennsylvannia Unfair Trade Practices and Consumer Protection Law says the following is illegal:
"Advertising goods or services with intent not to sell them as
advertised;"
If she has a Saturday Matinee ad or flyer that says "Reserve the Wii for $250!" then they're definitely in the shit.
Sure it's bullshit, wrong, despicable...but...companies can get away with that kind of thing.
Fineprint is the scourge of the honest person.
The terms of a EULA on their website are entirely irrelevant if she wasn't provided with a copy of it when she placed the pre-order. Remember that this didn't occur on their website, it was at a physical place of business. The only applicable terms will be those which were either verbally communicated to her or written on a document she signed.
Additionally, if she did sign something which made reference to the EULA on the website, but she was not provided with a copy of the EULA terms *at the time*, those terms are not likely to be upheld.
Contract law is not as simple as 'lol read the fine print noob'. Contracts which attempt to obfuscate their terms from the other parties drift into the area of fraud.
That all aside, she stands a better chance of pressuring the company into backing down simply by getting enough press coverage of their dodgy dealings that it becomes a PR issue.
Console bundles need to be stopped