Lawsuit Koster filed against Walgreens
Content
IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
AT KANSAS CITY
STATE OF MISSOURI, ex rel.
ATTORNEY GENERAL CHRIS KOSTER,
Plaintiff,
v.
WALGREEN CO.,
An Illinois Corporation,
Defendant.
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) Case No. 1316-cv21688
) Division 12
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[Proposed] Order to Show Cause
The State of Missouri has filed a Motion for an Order to Show Cause
and for Judgment of Civil Contempt and for Civil Penalties against Walgreen
Co. (Walgreen), which states that Walgreen is in contempt because it has
willfully failed and refused to comply with the Consent Judgment and
Permanent Injunction entered by this Court on June 4, 2014.
Therefore, Walgreen is hereby ordered to appear in person, before the
Circuit Court of Jackson County, Missouri, on the 13th day of November,
2015, at 9:30 a.m., and to show cause, if any, why this court should not
punish Walgreen for contempt because of its violations of the Court’s June 4,
2014 Consent Judgment and Permanent Injunction, to wit:
Page 1
1.
“A prima facie case for civil contempt is established when a party
alleging contempt proves: 1) the contemnor’s obligation to pay a specific
amount or perform an action as required by the decree; and 2) the
contemnor’s failure to meet the obligation.” Lyons v. Sloop, 40 S.W.3d 1, 1011 (Mo. App. W.D. 2001) (citation omitted).
“Once a prima facie case of
contempt is established, the alleged contemnor bears the burden of proving
that his or her failure to act was not the consequence of his or her own
intentional and contumacious conduct.” Love v. Love, 75 S.W.3d 747, 759-60
(Mo. App. W.D. 2002) (citation omitted).
2.
The purpose of civil contempt is to compel compliance with a
court order. “A fine for civil contempt is remedial and provides a coercive
means of compelling compliance with a court order and/or of compensating
complainant for losses sustained due to noncompliance.” Deane v. Missouri
Emp’rs Mut. Ins. Co., 437 S.W.3d 321, 326 (Mo. App. W.D. 2014).
“A per
diem fine that expires when the contemnor complies with the court’s order is
proper” in instances of civil contempt. Redifer v. Redifer, 650 S.W.2d 26, 28
(Mo. App. E.D. 1983).
3.
Section 407.110 establishes the statutory penalty for violation of
an injunction issued pursuant to a violation of Chapter 407. Section 407.110,
RSMo, provides:
Page 2
Under the terms of this statute, any person who violates the terms of
an injunction, an order to make restitution, or any other order issued
under Section 407.100 shall forfeit and pay to the State a civil penalty
of not more than $5,000.00 per violation. Under this section, the court
issuing the injunction retains jurisdiction and the Attorney General,
acting in the name of the State, may petition for recovery of penalties.
4.
On August 27, 2013, Plaintiff State of Missouri filed a petition
(Petition) alleging Defendant had violated RSMo Section 407.020 1 by
displaying inaccurate sales tags, overcharging customers, and failing to
remove expired sales tags, among other alleged misconduct.
5.
As explained in the State’s Petition, the State identified multiple
advertisements which displayed sale prices after the sale had expired and
overcharges at the point of sale, which varied in amount and ranged from a
few cents to over $15.00.
6.
On June 4, 2014, this Court entered the Consent Judgment and
Permanent Injunction (Order), enjoining and restraining Defendant from
“failing to remove from a store, within 12 hours of the time the offer expires,
any Advertisement which displays an offer for a limited time period.”
7.
Walgreen expressly consented to the terms of the Consent
Judgment and Permanent Injunction.
1All
references are to Missouri Revised Statutes 2000, unless otherwise noted. Where a
citation gives a supplement year—e.g. “(Supp. 2012)”—the citation is to the version of the
statute that appears in the corresponding supplementary version of the Missouri Revised
Statutes, and, where relevant, to identical versions published in previous supplements.
Page 3
8.
The Order has remained in full force and effect since it was
entered June 4, 2014.
9.
This Court retains jurisdiction over the Order and Defendant.
10.
Any acts, practices, methods, uses, or conduct of the Defendant
includes the acts, practices, methods, uses, or conduct of Defendant’s
employees, agents, or other representatives acting under its direction,
control, or authority.
11.
Defendant has failed or refused to comply with this Court’s prior
Order by violating the terms of the injunction in the following ways:
12.
Defendant displays sales tags (advertisements) on its retail store
shelves adjacent to products on those store shelves. Each sales tag indicates
the sales price for the adjacent item. Many of these sales tags offer a reduced
price for only a limited time period, with the offer’s expiration date indicated
on the sales tag.
Prices expire at midnight on the date of the displayed
expiration date.
13.
Defendant entered into the Consent Judgment, agreeing to be
bound by all provisions in Paragraph 21 of the Consent Judgment, including
being enjoined and restrained from “failing to remove from a store, within 12
hours of the time the offer expires, any Advertisement [including sales tags]
which displays an offer for a limited time period.”
Page 4
14.
Defendant has control over the timing of when its advertisements
are initially displayed in its Missouri retail stores and when those
advertisements are removed from its Missouri retail stores.
15.
Plaintiff visited a total of 50 Missouri Walgreen retail stores on
July 26-27, 2015, as well as August 30-31 and September 1, 2015. During
these visits, Plaintiff identified 1,306 advertisements on display in these
Missouri Walgreen retail stores after 12 hours from when the offers expired.
This Show Cause Order adopts and incorporates by reference all factual
allegations contained in Plaintiff’s Motion for an Order to Show Cause and
for Judgment of Civil Contempt and for Civil Penalties, including the exact
dates, specific store locations, and number of violations per date and location,
which are detailed in the Affidavit of Shelly Land, attached as Exhibit C to
Plaintiff’s Motion.
16.
Defendant has failed to or refused to comply with the Court’s
Order on at least 1,306 separate occasions by violating the terms of the
permanent injunction by displaying advertisements in its Missouri retail
stores after 12 hours from when the offers expired.
17.
Once a violation of the Merchandising Practices Act is found to
have occurred or is about to occur, irreparable harm and harm to the public
are presumed. State ex rel. Nixon v. Beer Nuts, Ltd., 29 S.W.3d 828, 837-38
(Mo. App. E.D. 2000).
Page 5
18.
As a result of Defendant’s refusal and failure to comply with the
judgment, consumers continue to suffer immediate and irreparable harm by
being misled, confused, overcharged, allured to Walgreen’s retail stores, and
induced to purchase merchandise in Walgreen’s retail stores.
19.
The purpose of civil contempt is to compel compliance with a
court order, and a per diem fine that expires upon compliance with the court
order is proper in instances of civil contempt.
_________________________
DATE
___________________________
Circuit Judge
If you are found in Contempt, you may be imprisoned and/or
assessed a fine and costs.
Page 6
AT KANSAS CITY
STATE OF MISSOURI, ex rel.
ATTORNEY GENERAL CHRIS KOSTER,
Plaintiff,
v.
WALGREEN CO.,
An Illinois Corporation,
Defendant.
)
)
)
)
)
) Case No. 1316-cv21688
) Division 12
)
)
)
)
[Proposed] Order to Show Cause
The State of Missouri has filed a Motion for an Order to Show Cause
and for Judgment of Civil Contempt and for Civil Penalties against Walgreen
Co. (Walgreen), which states that Walgreen is in contempt because it has
willfully failed and refused to comply with the Consent Judgment and
Permanent Injunction entered by this Court on June 4, 2014.
Therefore, Walgreen is hereby ordered to appear in person, before the
Circuit Court of Jackson County, Missouri, on the 13th day of November,
2015, at 9:30 a.m., and to show cause, if any, why this court should not
punish Walgreen for contempt because of its violations of the Court’s June 4,
2014 Consent Judgment and Permanent Injunction, to wit:
Page 1
1.
“A prima facie case for civil contempt is established when a party
alleging contempt proves: 1) the contemnor’s obligation to pay a specific
amount or perform an action as required by the decree; and 2) the
contemnor’s failure to meet the obligation.” Lyons v. Sloop, 40 S.W.3d 1, 1011 (Mo. App. W.D. 2001) (citation omitted).
“Once a prima facie case of
contempt is established, the alleged contemnor bears the burden of proving
that his or her failure to act was not the consequence of his or her own
intentional and contumacious conduct.” Love v. Love, 75 S.W.3d 747, 759-60
(Mo. App. W.D. 2002) (citation omitted).
2.
The purpose of civil contempt is to compel compliance with a
court order. “A fine for civil contempt is remedial and provides a coercive
means of compelling compliance with a court order and/or of compensating
complainant for losses sustained due to noncompliance.” Deane v. Missouri
Emp’rs Mut. Ins. Co., 437 S.W.3d 321, 326 (Mo. App. W.D. 2014).
“A per
diem fine that expires when the contemnor complies with the court’s order is
proper” in instances of civil contempt. Redifer v. Redifer, 650 S.W.2d 26, 28
(Mo. App. E.D. 1983).
3.
Section 407.110 establishes the statutory penalty for violation of
an injunction issued pursuant to a violation of Chapter 407. Section 407.110,
RSMo, provides:
Page 2
Under the terms of this statute, any person who violates the terms of
an injunction, an order to make restitution, or any other order issued
under Section 407.100 shall forfeit and pay to the State a civil penalty
of not more than $5,000.00 per violation. Under this section, the court
issuing the injunction retains jurisdiction and the Attorney General,
acting in the name of the State, may petition for recovery of penalties.
4.
On August 27, 2013, Plaintiff State of Missouri filed a petition
(Petition) alleging Defendant had violated RSMo Section 407.020 1 by
displaying inaccurate sales tags, overcharging customers, and failing to
remove expired sales tags, among other alleged misconduct.
5.
As explained in the State’s Petition, the State identified multiple
advertisements which displayed sale prices after the sale had expired and
overcharges at the point of sale, which varied in amount and ranged from a
few cents to over $15.00.
6.
On June 4, 2014, this Court entered the Consent Judgment and
Permanent Injunction (Order), enjoining and restraining Defendant from
“failing to remove from a store, within 12 hours of the time the offer expires,
any Advertisement which displays an offer for a limited time period.”
7.
Walgreen expressly consented to the terms of the Consent
Judgment and Permanent Injunction.
1All
references are to Missouri Revised Statutes 2000, unless otherwise noted. Where a
citation gives a supplement year—e.g. “(Supp. 2012)”—the citation is to the version of the
statute that appears in the corresponding supplementary version of the Missouri Revised
Statutes, and, where relevant, to identical versions published in previous supplements.
Page 3
8.
The Order has remained in full force and effect since it was
entered June 4, 2014.
9.
This Court retains jurisdiction over the Order and Defendant.
10.
Any acts, practices, methods, uses, or conduct of the Defendant
includes the acts, practices, methods, uses, or conduct of Defendant’s
employees, agents, or other representatives acting under its direction,
control, or authority.
11.
Defendant has failed or refused to comply with this Court’s prior
Order by violating the terms of the injunction in the following ways:
12.
Defendant displays sales tags (advertisements) on its retail store
shelves adjacent to products on those store shelves. Each sales tag indicates
the sales price for the adjacent item. Many of these sales tags offer a reduced
price for only a limited time period, with the offer’s expiration date indicated
on the sales tag.
Prices expire at midnight on the date of the displayed
expiration date.
13.
Defendant entered into the Consent Judgment, agreeing to be
bound by all provisions in Paragraph 21 of the Consent Judgment, including
being enjoined and restrained from “failing to remove from a store, within 12
hours of the time the offer expires, any Advertisement [including sales tags]
which displays an offer for a limited time period.”
Page 4
14.
Defendant has control over the timing of when its advertisements
are initially displayed in its Missouri retail stores and when those
advertisements are removed from its Missouri retail stores.
15.
Plaintiff visited a total of 50 Missouri Walgreen retail stores on
July 26-27, 2015, as well as August 30-31 and September 1, 2015. During
these visits, Plaintiff identified 1,306 advertisements on display in these
Missouri Walgreen retail stores after 12 hours from when the offers expired.
This Show Cause Order adopts and incorporates by reference all factual
allegations contained in Plaintiff’s Motion for an Order to Show Cause and
for Judgment of Civil Contempt and for Civil Penalties, including the exact
dates, specific store locations, and number of violations per date and location,
which are detailed in the Affidavit of Shelly Land, attached as Exhibit C to
Plaintiff’s Motion.
16.
Defendant has failed to or refused to comply with the Court’s
Order on at least 1,306 separate occasions by violating the terms of the
permanent injunction by displaying advertisements in its Missouri retail
stores after 12 hours from when the offers expired.
17.
Once a violation of the Merchandising Practices Act is found to
have occurred or is about to occur, irreparable harm and harm to the public
are presumed. State ex rel. Nixon v. Beer Nuts, Ltd., 29 S.W.3d 828, 837-38
(Mo. App. E.D. 2000).
Page 5
18.
As a result of Defendant’s refusal and failure to comply with the
judgment, consumers continue to suffer immediate and irreparable harm by
being misled, confused, overcharged, allured to Walgreen’s retail stores, and
induced to purchase merchandise in Walgreen’s retail stores.
19.
The purpose of civil contempt is to compel compliance with a
court order, and a per diem fine that expires upon compliance with the court
order is proper in instances of civil contempt.
_________________________
DATE
___________________________
Circuit Judge
If you are found in Contempt, you may be imprisoned and/or
assessed a fine and costs.
Page 6
