Macy’s Guam may have to surrender details of all purchases made in the store from February 2004 to the present.
Thomas Tarpley attorney and partner in Tarpley & Moroni LLC and council for Dorothea Quichocho said he plans on subpoenaing all Macy’s transaction records.
More than a year and-a-half after initially filing a lawsuit against Macy’s Tarpley said the case is once again moving forward.
The suit was filed on Feb. 26 2004 (See "Cookware and class-action GRT lawsuits outlive rollback" in the April 5 2004 edition of the Journal.).
In early June Tarpley filed an amended complaint at the Superior Court of Guam "" dropping the complaint against Brown Group Retail Inc. dba Famous Footwear; Vans Inc.; RK Inc. dba The Fragrance Outlet; Angioline #26 dba Nine West Outlet Stores; and ABC Stores Guam Inc. dba ABC Stores. He said those stores stopped adding on an additional charge to the advertised price. "The suit maintained its complaint against Macy’s because it is still adding a surcharge " Tarpley said.
The surcharge is a simple problem that has to be clarified Tarpley told the Journal. The problem lies in conflicting opinions by the attorney general’s office he said. "At first the attorney general’s office said stores can’t add on a surcharge and then it said stores can add on a surcharge if a sign is posted saying a surcharge will be added."
According to Tarpley after Macy’s submits an answer to the amended complaint "We will formally bring a motion to have the plaintiff certified as representative of the class. The court is supposed to under the rules make the determination promptly and so we will then know if we are going to proceed as a formal class action. Until the court actually certifies what they call the certification of the class it is not yet a real class action. They have to determine that the plaintiffs are good representatives of the class and that the class is so numerous it doesn’t make sense to try and join everybody."
Tarpley expects the department store to take action.
"Macy’s will oppose that and it will have a hearing and an argument and the judge will issue a decision on that. At that time we will start setting trial dates and we will probably subpoena all the transaction records from Macy’s as to all the charges that it has collected as a result of this tax being added.
"We may also have an intermediate hearing on whether this is legal or not [the surcharge]. I imagine Macy’s will say that it did nothing wrong. We are going to argue "yes." The statute doesn’t allow them to do that. That is the central issue of this case. That is what the case has to determine. That is what this case is really about " Tarpley said.
The issue of liability Tarpley said will be determined and it should be determined before the lawsuit addresses the amount of damages if any are involved. "If there’s no liability there’s not going to be any damages."
He said he doesn’t know when the issues of certification of class and the motion for summary judgment on the issue of liability will be heard. "Who knows when that will be heard? Hopefully sometime this year but maybe the beginning of next year."
Tarpley advised customers shopping at Macy’s to save their receipts. "If we prevail then notice will be given for everyone to turn in their receipts because hopefully there will be a common fund that will be created. We are asking Macy’s to disgorge all of these funds into the court which will create a common fund for the payment of or reimbursement of customers "" if it gets that far."
The Journal contacted Deena Nichols senior vice president and director of stores of Region 9 for Macy’s in Honolulu for comment. She told the Journal to forward its questions to Janet De Vor director of press relations and communications for Macy’s West in San Francisco. De Vor then forwarded the Journal’s inquiry to its legal office in Ohio. Ryan Torres general manager of Macy’s Guam did not return calls for comment. Despite follow-up requests as of press time Macy’s did not provide a statement on the case.
As reported in the April 5 2004 story the class action suit filed by Tarpley under the provisions of Rule 23 Guam Rules of Civil Procedure called for "damages restitution disgorgement of funds wrongfully received and injunctive relief and relief incident and subordinate to it including costs." The documents estimated members of the class to number in the thousands and alleged Macy’s added a charge to the purchase price at the cash register in violation of Guam law thereby violating 11 Guam Code Annotated being guilty of unfair competition.
In the April 5 2004 issue the Journal also reported that Douglas B. Moylan attorney general wrote on March 10 to then Sen. John M. Quinata recommending an amendment to Guam law pertaining to gross receipts tax. Moylan said that "based upon recent confusion the law should be amended to prevent merchants from adding a GRT amount to consumers’ purchases on top of the advertised price of their goods or services (normally done at the checkout stand) but still permitting merchants the opportunity to take advantage of the GRT disclosure incentive."
In 2005 the attorney general’s office said there were three ways a merchant may list or not list the GRT as a separate item and remain in conformance with the law (See "Macy’s visible GRT gets green light from AG’s office" in the Jan. 10 2005 edition of the Journal.). In a Nov. 24 2004 letter Charles H. Troutman consumer counsel at the attorney general’s office wrote "The first way was not to list it at all and hide it. The second way was developed by Payless Markets wherein the total bill is listed and then a statement made that the above includes approximately $xxx paid GRT. The third way that is acceptable is the present plan of Macy’s wherein they put notices prominently at the entrances to their store and at the register counters stating that the total price will include a 4% GRT visible."
Troutman said appropriate language was also displayed in advertisements. He concluded that "Since Macy’s provided all of these notices we deem them in compliance with the Guam law on making the GRT visible." MBJ
