correcting false advertising before money changes hands isn't enough

Helde v. Knight Transportation, Inc., 982 F. Supp. 2d 1189 (W.D. Wash. 2013)

This is mostly a wages case, but it provides a reminder that bait and switch advertising is generally actionable under consumer protection law.  Here, plaintiffs claimed a violation of Washington’s Consumer Protection Act based on representations allegedly made to them before employment about the pay rate available to them as long-haul drivers.  They alleged that Knight advertised a per mile pay rate that was higher than that actually paid and that they reviewed the advertisements and accepted positions in reliance thereon. Knight argued that there was no reliance, and that any misstatements were corrected during orientation and before plaintiffs accepted their first driving assignment.

The court found that a reasonable factfinder could conclude that the alleged misrepresentations were material and affected plaintiffs’ decision to apply.  Though neither plaintiff bringing the claim could remember, years later, the full amount of information in the ads, one remembered a claim that drivers could make up to 41 cents per mile.  “[I]t is reasonable to infer that, when looking for employment opportunities in a multi-employer environment such as line haul trucking, the effective pay rate would be a, if not the, material consideration.”  Knight could not escape liability for correcting misrepresentations during orientation:

By that time, plaintiffs had committed time and resources to the application and orientation processes and had abandoned their search for employment in order to pursue the allegedly fictitious benefits offered by defendant. Injury under the CPA includes time spent and expenses incurred in unwinding the deceptive and unfair statements. If plaintiffs can prove that defendant advertised jobs paying 33¢ per mile and subsequently reduced that offer once it got people in the door, the factfinder could reasonably conclude that the alleged misrepresentations forced plaintiffs to choose between attempting to absorb the time and expenses incurred while they start the job search anew or accepting less than what was originally offered in order to get a paycheck. Either way, injury to business or property causally related to the misrepresentations may be shown.