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Ask Zachary Your Own Question

Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3838
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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can i sue the company i ordered my phone from because they

Resolved Question:

can i sue the company i ordered my phone from because they said that it was a pre-order device and it's not being shipped until 2-3 weeks after they get the release date for the item? so it isn't pre-order at all. i did not know about the 2-3 weeks policy when i ordered it.
Submitted: 2 years ago.
Category: Legal
Expert:  Zachary replied 2 years ago.

Zachary D. Norris :

Hi,

Zachary D. Norris :

I would be happy to help you.

Zachary D. Norris :

Are you there?

Customer:

yes i am

Zachary D. Norris :

ok.

Zachary D. Norris :

You are correct that you have a cause of action against any company that misrepresents a characteristic of its goods or services.

Zachary D. Norris :

However, it all depends on whether "pre-order" was a misrepresentation.

Zachary D. Norris :

How did you learn the phone was available through "pre-order"?

Customer:

i was checking for that phone on sprints site while it was in pre-order on sprint's site, and one of the forums mentioned that this company had it for $50 less.

Zachary D. Norris :

Is the representation still on Sprint's site?

Customer:

the other company is wirefly.com

Customer:

i ordered it from wirefly.

Zachary D. Norris :

OK. Who (what company) made the representation to you that it was available "pre-order"? Can you locate the representation on line? If so, can you give me the link and I'll take a look to see if you have any kind of claim.

Customer:

and they said they still don't know when it is going to be in because 'sprint hasn't set a release date' yet. however, last weekend i could buy the phone on the bestbuy.com site, so i know it

Customer:

it's been released

Zachary D. Norris :

Is this something that wirefly told you?

Customer:

yes via chat last week.

Zachary D. Norris :

Also, did you pay an additional amount over the regular price to get the phone "pre-release"?

Zachary D. Norris :

Did you retain a copy of the chat?

Customer:

no, i did not retain a copy. it was $50 less than sprint...

Zachary D. Norris :

OK. So, if I understand you correctly. You saw a Sprint phone that had not been released yet on the Sprint website. You then found that same phone available "pre-order" on Wirefly. You believed that "pre-order" meant that they had the phone currently in stock and would send it to you immediately. However, it turns out that Wirefly did not have the phone in stock and then told you they could not ship the phone to you until it had been officially released by Sprint. Nevertheless, the price you purchased the phone for was $50.00 less than what Sprint is selling it for. Is this a correct summary?

Customer:

here is the forum

Customer:

http://community.sprint.com/baw/message/420110#420110

Zachary D. Norris :

let me take a look

Zachary D. Norris :

OK. Legally, for a misrepresentation to be actionable (i.e., something you can sue for) it must be made by the Company you are wanting to sue. The forum you have shown me is user generated and is not an official representation on which you could base a lawsuit for misrepresentation.

Zachary D. Norris :

Is the summary stated above correct?

Customer:

yes it is correct ... here is the link for the purchase at wirefly... http://www.wirefly.com/eCommerce/SpecialOffer.aspx?cid=36210_6b944030568249a183e9c77f493de2da

Zachary D. Norris :

Thank you.

Customer:

but i still don't understand how they can call that a 'pre-order'. it is most definitely POST order, which is my main problem.

Zachary D. Norris :

I think we are getting to the meat of the problem now. You are interpreting "pre-order" to mean that what you are purchasing will be sent to you before it is release to anyone else. However, that is not what "pre-order" means. That is what "pre-release" means. "Pre-order" simply means you can be the first to order it before the release, i.e., if you "pre-order" then you are not in danger of not being able to purchase the phone at a later date because it sold out.

Zachary D. Norris :

Imaging getting a "pre-order" concert ticket

Zachary D. Norris :

When you get that kind of ticket, that means that you don't have to go stand in line at the box office when the tickets are generally released

Zachary D. Norris :

It doesn't mean that you get to see the show before anyone else.

Zachary D. Norris :

However, I do have a problem with Wirefly representing that they could not send you the phone for 2-3 weeks after it has been actually released.

Zachary D. Norris :

That could be classified as a "bate and switch" scheme. \

Zachary D. Norris :

In other words, Wirefly is representing that they have something in stock or will have something in stock upon release when they actually don't.

Zachary D. Norris :

So, you potentially have a claim there.

Zachary D. Norris :

What state are you in?

Customer:

i am in Indianapolis, IN.

Zachary D. Norris :

OK...let me research something real fast.

Customer:

thank you.

Zachary D. Norris :

The above statute makes it illegal to sale something when you don't have it in stock as promised.

Zachary D. Norris :

I think you could potentially claim that Wirefly stated they would have the phone in stock when it was released and you would be given the phone then.

Zachary D. Norris :

Because your damages are not high (you haven't suffered economic consequences more than a few hundred dollars), this is not the kind of case a private attorney would handle.

Zachary D. Norris :

Your best bet on following this up would be to make a consumer claim with the Indiana Attorney General's office at http://www.indianaconsumer.com/filecomplaint.asp

Zachary D. Norris :

This could potentially entitle you to a $500 penalty award if they find it to be a good claim.

Customer:

Well, thank you very much for all your help, Mr. Norris.

Zachary D. Norris :

I'm glad to help. If you are satisfied, please click "accept" so I may receive credit for my work. Good luck.

Customer:

most defiantly accepted...

Zachary, Attorney
Category: Legal
Satisfied Customers: 3838
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 14 other Legal Specialists are ready to help you

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