Day 025 - 16 Sep 94 - Page 39


     
     1        frequent and extremely illegal practice in the retail
     2        industry, whether retail sell food or more often products,
     3        for a company to advertise a product that is not in stock,
     4        or to advertise a product as having certain features that
     5        it does not have.
     6
     7        In almost every instance the consumer finds that out once
     8        they have come to the store, but the deception lies in
     9        using the bait advertisement that is false with the
    10        potential to switch them once they get to the store.  So
    11        the fact that there is this information that is available
    12        at the store, if the consumer learns of it, would not in
    13        any way absolve them.  In this instance as opposed to most
    14        bait and switch advertising the switch does not occur by a
    15        sales person at the retail establishment.
    16
    17        In other words, you do not finally learn the truth in the
    18        greater percentage of instances when the sales person
    19        says:  "Oh, well, that is not necessarily correct what the
    20        ad says; we have a better product here to sell to you".
    21        In the greater run of things people, even with the
    22        compromise we settle for, were not aware of the nutrition
    23        brochures at all.
    24
    25   Q.   I think I follow that, but my next question is this:  Do
    26        you not think that it might be rather difficult to make a
    27        case against McDonald's that they dishonestly and
    28        deliberately misstated information or suppressed relevant
    29        information if the fact is, as each of these
    30        advertisements tells us, that the customer is directed,
    31        encouraged, to ask for a brochure which gives him all the
    32        information?
    33        A.  Oh, I absolutely disagree with you Mr. Rampton.  It is
    34        a matter for instruction to the jury that they might not
    35        consider the subsequent compliance if the person's
    36        presence at the establishment was obtained through a false
    37        misleading or deceptive practice.  I would be more than
    38        happy to do that, and I have prosecuted companies for just
    39        that thing, for engaging in bait switch advertising.
    40        I have always successfully prosecuted them.
    41
    42   Q.   What do you understand by the word "lie", dishonest
    43        falsehood, knowing falsehood, that sort of thing, "lie"?
    44        A.  That would be one definition that I would agree with.
    45
    46   Q.   Saying something you know to be untrue when you say it,
    47        would that be it?
    48        A.  Saying something that you know to be untrue or that
    49        you know to contain half truths.
    50 
    51   Q.   I agree with that, that you can as easily distort the 
    52        truth by telling half as you can by deliberately 
    53        misstating the whole.  Do you really think you could make
    54        a case against somebody in this form?  You lied about the
    55        quality of your food, if in fact the person of whom you
    56        make that accusation is actually inviting people to look
    57        at the document that gives him the truth?
    58        A.  Do I think I could, yes, I think I could. Do I need
    59        to, no, I do not.  The standard for winning in court is
    60        merely showing that the company published an advertisement

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