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1422-CC09685
JN THE CIRCIBT COURT OF THE CITY OF ST. LOillS STA TE OF .MISSOURI
JENNIFER GRAVES
Plaintiff,
v.
DELUXE CORPORATION, DOING BUSINESS AS DELUXE CHECK PRINTERS, IN CORPORA TED
Serve: CT Corporation System 120 South Central Avenue Clayton, MO 63105 (314) 863-5545
Defendant
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Cause No.
Divisjon No.
PLAINTIFF'S CLASS ACTION PETITION
Plaintiff Jennifer Graves brings this action on behalf of herself and all others similarly
situated ("Class"), against Deluxe Corporation, d/b/a Deluxy Check Printers, Incorporated
("Defendant"), and, upon information and belief, alleges as follows:
PARTIES
1. Plaintiff is a Mjssouri citizen residing in Arnold, Mjssouri.
2. Defendant is a co:rporation incorporated in the State of Minnesota with its
principal place of business at 3680 Victoria St. N., Shoreview, MN 55126. Defendant is
registered with the Missouri Secretary of State's office under the name, ''Deluxe Check Printers,
Incorporated."
VENUE AND JURISDICTION
3. This Court bas subject matter jurisdiction over this action because a transaction
complained of took place in City of St Louis. V.A.M.S. § 407.025.1.
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4. This Court bas personal jurisdiction over the Defendant because Defendant does
business in City of St. Louis.
5. Venue is proper in this court because the cause of action arose in City of St
Louis. V.A.M.S. § 407.025.l.
GENERAL ALLEGATIONS
6. This action is brought by Plaintiff on behalf of herself and a proposed class of
Missouri residents who were charged excessive, deceptive, unfair and unethical fees for delivery
of new and replacement personal checks by Defendant during the five year period before the
filing of this Petition (the "Class Period").
7. Under the brand name Deluxe, Defendant sold checks to account holders at
various banks in Missouri, including U.S. Bank, Commerce Bank, Heartland Banlc, First Bank,
Fifth Third Bank and others.
8. Customers could order checks from a bank branch and have the checks delivered
to their homes. A bill from Defendant for the checks and delivery would accompany the
delivered checks.
9. Defendant also operated a web site with the address www.deluxe.com for the
purpose of allowing consumers to order new or replacement persona] checks.
10. Consumers could access this web site either directly or by being directed to it by
their bank's web site.
11. For instance if an account holder at Commerce Bank attempts to order check from
www.cornrnercebank.com, a pop-up appears stating:
"You are now leaving the Commerce Banlc website. By clicking the 'I agree' button below, you acknowledge and agree to the following: You will leave the Commerce Bank website and enter a site sponsored by Deluxe Coi:p., a non-
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12.
affiliated service provider. Please not that Deluxe Corp. may have it' .s own privacy and security policies which differ from those of Commerce Bank_,,
When consumers ordered checks from Defendant, they were first quoted a price
for the checks, and then required to choose among the three Delivery Methods, with the prices
listed below in effect as of the filing of this Petition:
A. '1Ba.sic: Standard Delivery'': $7.00.
B. "Better: Four-Day Express Delivery": $30.45.
c. "Best: Checks Next Day": $46.10
13. Defendant told consumers to allow 11-14 days, plus printing time for Basic:
Standard Delivery, 4 business days for printing and delivery in the case of Better: Four-Day
Express Delivery, and 2 full business days for printing and delivery in the case of Best: Checks
Next Day.
14. The prices of these delivery methods bear no reasonable relationship to and, in
fact, greatly exceed Defendant's costs incurred for delivery and contained improper and
unethical profit for Defendant.
15. At various times during the Class Period, Defendant charged different prices for
these Delivery Methods, but they always greatly exceeded Defendant' s costs incurred for
delivery and contained improper and unethical profit for Defendant.
16. As a ba.sis of the above allegation, Defendant maintains web sites under other
brand names besides Deluxe; such as Checks Unlimited, Check Gallery, and others whlch share
manufacturing facilities with Deluxe and provide the same delivery services as Deluxe but
charge much less for delivery than Deluxe does. See Exhibit A- Deluxe Corporation 2011 SEC
Form 10-K at 7, 8.
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17. Wben consumers ordered checks from Defendant through.the Checks Unlimited
website, they were first quoted a price for tbe checks, and then required to choose among the
following five Delivery Methods, with the prices listed below in effect as of the filing of this
Petition, along with a "handling fee of $3.45 per box:
A. "Standard": $0.00-
B. "UPS Trackable": $8.95
c. "UPS Ground": $10:95
D. "UPS 2-Day": $11.95
E. "UPS 1-Day": $19.95
18. Defendant told consumers to allow up to I 0 business days to deliver for St.andard,
4 to 6 business days to deliver for UPS Trackable, 2 to 5 business days to deliver for UPS
Ground, 2 business days to deliver for UPS 2-Day, and l business day to deliver for UPS 1-Day.
19. Thus, for standard delivery, Defendant charges only $3.45 per box (denominated
as "handling,,) for standard U.S. Postal Service Delivery on its Checks Unlimited web site but
$7 .00 for the same delivery on its Deluxe web site. Similar discrepancies apply to the faster
delivery methods.
20. There is no reasonable explanation for charging much more for delivery services
when the checks bear the brand name Deluxe rather than its other brands.
21. The delivery charge additionally violates established ethical principles laid down
by the Direct Marketing Association ('<DMA"), the leading industry association for companies
that, like Defendant, market directly to consumers. DMA has established principles of ethical
business practices for such marketing activities, whether engaged in by DMA members or other
businesses that market to consumers. Direct Marketing Association's Guidelines for Ethical
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Business Practices, revised May 2011. ("DMA Ethical Guidelines") See Exhibit B - DMA
Ethical Guideline, revised May 2011, Exhibit C - DMA Ethical Guideline, revised January 2014
22. These Ethical Guidelines "are intended to provide individuals and organizations
involved in direct marketing in all media with generally accepted principles of conduct." Id. at
2. They are based on DMA's "long-standing policy of high levels of ethics aod the
responsibility of the Association, its members, and all marketers to maintain conswner and
community relationships th~t are based on fair and ethical principles." Id. (emphasis added). . .. . .
23. In addition, the Ethical Guidelines "are intended to be honored in light of their
aims and principles. All marketers should support the guidelines in spirit and not treat their
provisions as obstacles to be circumvented by legal ingenuity.'' Id.
24. Defendant's method of delivery charges violates Article #11 of the DMA Ethical
Guidelines. That principle states: "Postage, shipping or handling charges, if any, should bear a
reasonable relationship to actual costs incurred." Id. at 12.
25. DMA has published a companion volume to its Ethical Guidelines called Do the
Right Thing: A Companion to DMA 's Guidelines for Ethical Business Practice (Revised January
2009) ("Do the Right Thini'). That volume is intended to "giveO direct marketers advice on
how to assure their business practices comply with" tbe Ethical Guidelines. See Exhibit D - Do
the Right Thing at 2.
26. With respect to Article #11, Do the Right Thing states: "When figuring shipping
and handling fees, it is important to reflect the costs as accurately as possible so that your
customers or prospects are not likely to view these fees as a company 'profit center."' Id. at 12-
13.
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27. DMA further elaborates on this ethical principle on its web site, Guidance for
Establishing and Substantiating Shipping and Handling Charges,
http://www.d.maresponsibility.org/SH/, where it st.ates:
Some marketers take tbe position that so long as there is clear disclosure on how much the consumer pays in total for the shipped product, the amount the marketer charges for shipping and handling should not matter. There appears to be a trend by law enforcement agencies, however, to insist that a consumer who is charged shipping and handling costs should be paying a fee reasonably based on the marketer's cost The latter position is consistent with existing DMA guidelines.
* * * * * Your goal shouid be not to charge consumers as a whole more than you pay in tot.al.
28. Defendant's Delivery charges for Deluxe checks violate the above ethical
principles because they are not reasonably related to Defendants' costs and include profit
29. For these reasons, Defendant's delivery charges are deceptive, unethical and
unfair.
NAMED PLAINTIFF ALLEGATIONS
30. Plaintiff purchased checks from Deluxe for personal, family or household
~
purposes and was illegally overcharged a fee for delivery.
31. Plaintiff has an account with Commerce Bank identified as account number
166535635.
32. On September 11, 2012, Plaintiff entered a Commerce Bank and ordered two
boxes of checks to be delivered to her home in the City of St. Louis.
33. Eleven to fourteen days later, she received th~ checks along with a bill from
Deluxe for $40.00. See Exhibit E.
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34. A portion of the $40-.00 total was for delivery which greatly exceed Deluxe's
costs incurred for delivery and constitute improper and unethical profit for Deluxe.1
. 35. On July 1, 2014, Plaintiff again responded to Commerce Bank to order checks .
36. She ordered l box of checks for a Base Price of $16.50 and was charged $7.00 for
St.andard Delivery. See Exhibit F.
37. The price of delivery had no ·reasonable relationship to and, in fact, greatly
exceeded Defendant's costs incurred for delivery and constitute improper and unethical profit for
Defendant. Had Plaintiff ordered checks from Deluxe's Check Unlimited website, she would
have only paid $3.45 for handling.
CLASS ACTION ALLEGATIONS
38. Plaintiff seeks to represent the following Class:
All Missouri citizens who purchased Deluxe checks from Defendant for personal, family or household purposes within the Class Period and were charged a fee for delivery.
39. Excluded from the proposed Class are Defendant, its Officers, Directors, and
employees, as well as employees of any subsidiary, affiliate, successors, or assignees of
Defendant Also excluded is any trial j udge who may preside over this case.
40. The Class is believed to comprise many consumers, the joinder of whom is
impracticable, both because they are geographically dispersed across the state and because of
their number.
1 Plaintiff bas attempted to retrieve the itemized bill from both Commerce Bank and from Deluxe but neither Commerce Bank nor Deluxe have agreed to provide her with one.
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41. Class treatment will provide substantial benefits to the parties and the Court. A
well-defined commonality of interest in the questions of law and fact involved affect Plaintiff
and the putative Class Members. Common questions of law and fact include:
A. Whether Defendant charged consumers an amount for delivery of personal
checks;
B. Whether the amount Defendant charged consumers for delivery of
personal checks exceeded Defendant's actual costs for shipping the checks to
consumers;
c. Whether Defendant charged consumers for delivery of personal checks
more than it paid for such delivery;
D. Whether and, if so, how Defendant determined its costs for delivering
persona.I checks to Missouri consumers;
E. Whether Defendant's actions in charging more for delivery than its
delivery costs was unethical;
F. Whether Defendant's actions in charging more for delivery than its
delivery costs violated the Missouri Merchandising Practices Act, § 407.010, et seq.;
G. Whether Defendants should be required to pay attorney's fees.
42. Questions of law and fact common to members of the Class, some of which are
set forth above, predominate over any questions affecting only individual members of the Class.
The resolution of common questions will resolve the claims of both Plaintiff and the Class.
43. Plaintiffs claims are typical of the claims of the proposed Class in that Plaintiff
ordered personal checks from Defendant's web site and was charged more for delivery of the
checks than Defendant's costs of delivery.
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44. Plaintiff will fairly and adequately represent and protect the interests of the
proposed Class. Plaintiff has no interests antagonistic to those of the Class. Plaintiff has
retained competent and experienced counsel in the prosecution of this type of litigation.
45. A class action is superior to other available methods for the fair and efficient
adjudication of this controversy because members of the Class are numerous and individual
joinder is impracticable. The expenses and burden of individual litigation would make it
impracticable or irnpossjble for proposed Class Members to prosecute their claims individually.
Trial of Plaintiff's claims is manageable.
46. This action is maintainable as a class action pursuant to Missouri Civil Procedure
Rule 52.08 and Rev. Stat. Mo.§ 407.025.
JURY DEMAND
4 7. Plaintiff demands trial by jury on all issues so triable.
COUNT I-VIOLATIONS OFMO. REV. STAT. § 407.010, et seq.
48. Plaintiff hereby incorporates by reference all preceding paragraphs of this Petition
as if fully set forth herein.
49. Defendant has sold and delivered personal checks, as described herein, to Plaintiff
and the Class.
50. Defendant is a person within the meaning of the Missouri Merchandising
Practices Act, Mo. Rev. Stat.§ 407.010(4).
51 . Plaintiff and the Class purchased personal checks from Defendant for personal,
family and/or household use.
52. Defendant charged Plaintiff and the Class more for delivery of the checks than its
costs for delivery of same.
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53. Defendant's actions in charging more for delivery of personal checks than its
costs violated the MMJ> A because they constituted deception, fraud, misrepresentation and/or
omission of material fact in connection with the sale of personal checks.
54. Defendant's actions alleged herein violated the MlvfPA because they constituted
unfair practices as that term is defined in Mo. Code Regs. tit. 15, § 60-8.020, which provides as
follows.
I. The act, use or employment by any.person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or conunerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri, is declared to be an unlawful practice.
55. The Attorney General has promulgated regulations defining the meaning of unfair
practice as used in the above statute. Specifically, CSR. tit. 15, § 60-8.020, provides:
(1) An unfair practice is any practice whic?-
(A) Either-
1. Offends any public policy as it has been established by the Constitution, statutes or conunon law of this state, or by the Federal Trade Commission, or its interpretive decisions; or
2. Is unethical, oppressive or unscrupulous; and
(B) Presents a risk of, or causes, substantial injury to consumers.
(2) Proof of deception, fraud, or misrepresentation is not required to prove unfair practices as used in section 407 .020.1., RSMo. (See Federal Trade Commission v. Sperry and Hutchinson Co., 405 U.S. 233, 92 S.Ct. 898, 31L.Ed.2d170 (1972); Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (N.C. 1981); see also, Restatement:, Second, Contracts, sections 364 and 365).
56. Pursuant to Mo. Rev. Stat. §407.020 and Mo. Code Regs. Ann. tit. 15, § 60-8.020,
Defendant's actions in charging more for delivery than its costs of delivery were unfair because
those actions were unethical.
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57. Plaintiff and the Class have suffered ascertainable loss due to the unfair and
deceptive practices described herein. Specifically, this loss is the amount that Plaintiff and the
Class paid for delivery of Deluxe checks in excess of the amount that it cost Defendant to deliver
those checks; this amount is measured by the difference between the excess charge that
Defendant imposed for delivery of Deluxe checks and the amount that Defendants' charged for
such delivery at its other websites. As illustration, a Class Member who was charged $7 .00 for
standard delivery of a box of Deluxe checks sustained a loss of $7.00 less $3.45, the amount that
Defendant charged for such delivery at its Checks Unlimited web site.
WHEREFORE, Plaintiff and the Class pray for the relief requested in the Prayer for
Relief set forth below in this petition.
MONEY HAD AND RECEIVED
,58. Plaintiff incorporates by reference all preceding paragraphs of this Petition as if
fully set forth herein.
59. Defendant has received money from Plaintiff and the Class by charging an
amount for delivery of personal checks which in equity and good conscience ought to be
returned to Plaintiff and the Class.
60. WHEREFORE, Plaintiff and the Class pray for the relief requested in the Request
for Relief set forth below in this Class Action Petition.
COUNT ID: UNJUST ENRICHMENT
61. Plaintiff incorporates by reference and re-alleges all preceding paragraphs of the
Petition as though fully set forth herein.
62. Defendant was enriched by the receipt of the delivery charge from Plaintiff and
the Class because of the deceptive and unfair activities of Defendants, as alleged herein.
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63. As a result, Defendant was enriched at the expense of Plaintiff and the Class.
64. Allowing Defendant to retain the monies it received for the delivery of personal
checks would be unjust.
65. WHEREFORE, Plaintiff and the Class pray for the relief requested in the Request
for Relief set forth below in this Class Action Petition.
PRAYER FOR RELIEF
66. WHEREFORE, Plaintiff and each member of tbe proposed Class pray for a
judgment:
A. Certifying the Class as defined herein;
B. Entering an order appointing The Law Office ofIUchard S. Comfeld and
Leritz, Plunkert & Bruning, P.C. as counsel for the Class;
C. Awarding Plaintiff and the Class compensatory damages, including a full
refund of the amount of delivery charge they paid in excess of Defendant's actual costs of
delivery;
D. Awarding restitution to Plaintiff and the Class;
E. Providing such further relief as the Court may deem fair and reasonable.
Respectfully submitted,
LAW OFFICE OF RICHARD S. CORNFELD
By: /s/ IUchard S. Cornfeld Richard S. Cornfeld, #31046 1010 Market Street, Suite 1720 St. Louis, MO 63101 (314) 241-5799 (314) 241-5788 (Fax) [email protected]
and
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/s/ Anthony S. Bruning, Jr. Anthony S. Bruning, Jr., #60200 LERJTZ, PLUNKERT & BRUNJNG, P.C. 555 Washington Avenue, Suite 600 St Louis, MO 63101 (314) 231-9600 (314) 231-9480 Fax) [email protected]
Attorneys for Plaintiff
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