United States: Is Plaintiff Being A Giant Baby Over A Baby Giant?

Sues Carter's for email subject line she says is nothing like it seems

Worst EVAR

Out on the vast reaches of the Interwebs, it is said, there is a website to satisfy almost any curiosity. If, for instance, you'd like to write a terrible, horrible, no good, very bad email subject line, there's a user guide out there for you.

SendCheckIt.com provides this guide, which offers spot-on bad advice. There are old saws such as "USE ALL CAPS IN YOUR SUBJECT LINE" and "Write a subject line that's comparable to an essay in size." There are also a few gems you may not have considered before, like "Abuse the #&!@^$* out of your punctuation!!!!!!!"

My kingdom for an *

There's also this piece of advice for people who want to perfect crappy subject-line writing: "Be Purposefully Deceiving."

This last piece of advice might be the subtitle of Plaintiff Maribell Aguilar's recent allegations – on behalf of herself and all others similarly situated – against Carter's Inc., a leading retailer and manufacturer of baby and young children's clothing in the United States. Plaintiff Aguilar filed suit against Carter's in the Eastern District of Washington, claiming that the subject line of a marketing email sent by the company is rife with deception and misrepresentation.

Plaintiff Aguilar allegedly received an email from Carter's with a subject line that read "50-70% OFF EVERYTHING" (the complaint does not detail what was in the body of the email).

"The subject line did not contain an asterisk or other indication that the words in the subject line had a special or invented meaning," the complaint reads; and that, Aguilar states, opens a whole can of trouble for the company.

Aguilar claims that this subject was enough to send her off to a Carter's retail location, expecting but not getting a discount on every product that Carter's sold.


Aguilar pores over that one line like a semiotics student studying Derrida. The entire line is misleading, she maintains, for several reasons.

First, she argues that the "50-70% OFF EVERYTHING" discount would be assumed by an ordinary consumer to be a "discount from Carter's regular or prevailing price," when it was "actually [a reduction] from Carter's Manufacturer's Suggested Retail Price ("MSRP")." Moreover, Carter's, which she argues is the de facto manufacturer of its own products, sets the MSRP instead of the market – and does so at inflated prices, a practice that no consumer should be expected to be aware of.

In any case, she alleges, Carter's does not make its products available at its artificial MSRPs anyway –"Carter's has a policy ... of not following its own 'suggested' retail price, because Carter's, as both manufacturer and retailer, intentionally inflates the MSRP for the purpose of deceiving consumers into believing they are receiving a significant discount ..." Additionally, she alleges that Carter's resellers –department stores, for example – don't offer or sell the products at Carter's MSRP, making the line even more deceptive.

The takeaway

Finally, she says, the word "EVERYTHING" folds under interrogation: "Carter's was not offering discounts on all of its products. ... At least 500 items were excluded from the sale advertised in the Email subject line and potentially upward of 1,700 items were excluded."

Without an asterisk, or other indication, she claims, the line is compromised from the jump.

We'll see where this case goes, but there's one odd equivocation in Aguilar's arguments that might cause trouble for her as things progress: Her MSRP arguments hinge on defining Carter's as a manufacturer. But is it? Even Aguilar doesn't seem entirely sure:

"While Carter's may sub-contract the physical construction of its products to third parties," she says, "Carter's is the manufacturer of almost all of its products in the sense that Carter's decides what products to make, when, where, how and in what quantities, materials, sizes and colors. When this pleading refers to Carter's as a manufacturer, it does so in this sense of overall control over the creation of its products."

The question now is: Will the court buy what she's selling?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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