How's this for being on top of things?
FOR IMMEDIATE RELEASE Monday, December 22, 2003
BIASCO PIANO COMPANY ENJOINED FROM ENGAGING IN
DECEPTIVE TRADE PRACTICES
A preliminary injunction was entered today against Biasco Piano Company of Downers Grove, restraining Biasco from engaging in various and numerous deceptive trade practices including false advertising and bait and switch. DuPage Circuit Court Judge Bonnie Wheaton heard the case brought by five Chicago area piano retailers: Cordogan's Pianoland, Hendricks Piano, Karnes Music Co., Ortigara's Musicville, and Pickle Piano. Judge Wheaton found that Biasco engaged in "a calculated and ongoing practice of deceptive advertising." Using a two page ad that appeared in the Chicago Tribune on November 15, 2003 as an example of Biasco's advertising practices, Judge Wheaton stated "it appears that just about the only thing on this page, other than the Tribune notations, that are not deceptive are the name, address and store hours of the defendant."
Testimony at the hearing clearly established that the pianos advertised are not necessarily the pianos actually offered for sale by Biasco. According to Colleen McLaughlin, attorney for the plaintiffs, "Biasco's ads are textbook 'bait and switch.' The fact is the pictures in Biasco's ads do not always fairly or accurately represent the pianos advertised." For example, Biasco's advertisements have featured a "Baldwin Grand" for $2,895.00 with a picture of a French provincial style grand that has an MSRP of $46,000.00. The piano actually being offered for $2,895 was in reality either a "pianovelle," a digital piano in the shape of a very small grand that was discontinued by Baldwin in 2000, or another digital "grand" by a different manufacturer altogether. Judge Wheaton analogized Biasco's practice of using pictures of one piano while advertising another "to advertising a full length rabbit coat and having a picture of a sable coat."
The "sale" price advertised by Biasco is also not the price consumers pay. Martin Simpson of DeKalb, Illinois, testified he was told he had to buy the matching bench at an additional cost over the advertised price because, according to his salesman, Biasco's profit was in the bench. Michael Juby of Geneva, Illinois had a similar experience. After agreeing to purchase a piano, Juby was told that in order to get the advertised sale price, he had to purchase a matching bench at an additional cost. Marjorie Oberheide of Northbrook, Illinois watched the Biasco ads for weeks. When she saw the sale price on a piano she was interested in drop from $ 3,495.00 to $3,295.00 she went to purchase it. Not only did the salesman write her invoice up at the old sale price, she was also required to buy, at an additional cost, the matching bench even though the bench had been pictured in Biasco's advertisement. When her piano was delivered, it was a different model and the delivery men attempted to collect an additional $300 for the upgrade that Oberheide knew nothing about. Fred Kautz of Bartlett, Illinois also testified that he did not receive his piano at the price advertised on the day of his purchase. Kautz was initially charged $5,495.00 for a piano advertised for $4,595.00. Kautz had found the advertised price attractive because Biasco also offered 0% financing for five years. Or so he believed. When he went to purchase the piano, he not only did not get the advertised price, he was also told 0% financing for five years was not available on his piano. Judge Wheaton found that "the truth is that none of the advertised or illustrated pianos qualify for the zero percent financing." Although Biasco's ads prominently proclaim that zero percent financing is available, just when a consumer's purchase qualifies for this incentive is, according to Judge Wheaton, unclear. There was testimony at hearing that only pianos sold at their regular price qualify, but also that pianos were "never sold at regular price."
Biasco's advertisement of fictitious "regular" prices and inflated savings each week was one of the main allegations of wrongdoing in the case. Judge Wheaton found that Biasco's advertised "regular prices are clearly not regular prices" in that the pianos were not offered at the purported "regular" price "in good faith for any length of time." According to McLaughlin, the most damaging evidence against Biasco came from the testimony of John Biasco, President of Biasco, about Biasco's purported 'regular prices. "We were able to establish that Biasco has no set formula for establishing its alleged 'regular' prices. John Biasco essentially pulls the price out of thin air. Even when the manufacturer provides an MSRP Biasco's claimed "regular" price is thousands more than the suggested retail price." Plaintiffs also introduced at the hearing five invoices that John Biasco claimed were for sales of pianos at their alleged "regular" price. "These invoices were clearly fabricated by Biasco in a desperate attempt to divert our focus on this issue." McLaughlin said. "What I found most offensive was not just Biasco's lies, but that he lied badly. The purported regular price sales were all made on advertised sale days. So, for example, Biasco claimed to have sold a Falcone grand for $13,749.00 on a day when that same piano had an advertised sale price of $3,495.00. That fact alone was enough to prove that either Biasco advertised a piano without the intent to sell it as advertised or that they made up the alleged sale. We later discovered that the invoice was written on a form that Biasco didn't start to use until a month after the alleged sale and there is no record of the sale on Biasco's own sales register." The court found this evidence persuasive. Judge Wheaton stated that she could only conclude "that these invoices were manufactured for the purpose of this litigation by some person and do not reflect sales at the regular prices."
Biasco advertises "Satisfaction Guaranteed." It has also advertised "Every Piano in Stock." Charles Chiang of Glenview testified that he was told the used Yamaha he purchased was in stock. Twice Biasco failed to deliver as scheduled even though it continued to advertise the same piano for sale. Biasco refused to refund his money.
Biasco's business tactics have definitely impacted the plaintiffs' businesses. Nancy Reilly of West Chicago cancelled her purchase of a vintage Baldwin that was being reconditioned by Cordogan's Pianoland when a Biasco salesman convinced her she should buy a new Baldwin. Since a 25 year Baldwin warranty hung from the piano in the showroom, Reilly had no reason to doubt the salesman's word. Turns out, however, that when the piano was delivered it needed warranty work. Reilly contacted Baldwin and found out the piano no longer had a factory warranty. From the serial number she later discovered the piano Biasco sold her was ten years old.
Biasco's newest marketing strategy is internet sales via a newly developed website, thepianomall.com. Judge Wheaton found that the "entire website, pianomall.com is problematic." Biasco's website features a picture of a huge warehouse and states Biasco built a 35,000 foot distribution center to house its 5 million dollar inventory and that it has 12 custom built trucks for its expert delivery crew. It also advises consumers to contact their "local Biasco dealer" for warranty problems. At hearing John Biasco admitted the picture of the "distribution center" is not his warehouse, Biasco rents about 25,000 feet of warehouse in Woodridge; it does not have $5 million in inventory; it owns only 2 trucks and leases 2 other trailers; it uses the services of independent movers and it has no other dealerships outside the Chicago area.
Biasco's defense was that basically its customers are happy with their purchase and believe they have ultimately gotten a good price. "Biasco just doesn't get it," said McLaughlin. "It does not matter if subsequently customers end up with a piano they like or a price that is fair or even lower than advertised. It does not matter if subsequent to the first contact Defendant reveals the truth about its prices, products, availability, or incentive applicability. What matters is that Biasco baits customers with advertising and sales practices, 'switches' the deal or piano expected, and locks customers into the sale so that they cannot shop elsewhere. This is precisely the type of conduct the Deceptive Trade Practices Act was designed to prevent."
The Uniform Deceptive Trade Practices Act prohibits advertising with the intent not to sell as advertised, advertising with the intent not to meet reasonable demand, providing false and misleading statements concerning the reason for a price reduction, and otherwise creating a likelihood of consumer confusion. Judge Wheaton's order prohibits Biasco, until further order of court, from the following:
1) Advertising, in any media, print, radio, or on the internet, a piano with a bench where the bench is not included in the sale;
2) Making the sale price of a piano contingent upon the buying of a bench;
3) Advertising financing without disclosing that financing is not available on sale pianos which are advertised in the same advertisement;
4) Advertising "since 1939" or "63 years in business", or using any other phrase that is intended to create or to a reasonable consumer does create the impression that Biasco Piano Company is the same company or a continuation of or a successor to Biasco Musical Instruments or Biasco & Sons;
5) Advertising in print or on the internet that Defendant has any locations it does not have or carries any product lines for which it is not an authorized dealer unless the products are clearly advertised as used or pre-owned;
6) Advertising any pre-owned products without disclosing in the ad itself that they are pre-owned;
7) Advertising a picture of a piano which does not reasonably depict the actual piano model being offered;
8) Advertising a downloadable coupon without disclosing that the coupon does not apply to sale items or that the value of the coupon is included in the sale price;
9) Advertising discontinued products or products which are limited in inventory without indicating in the advertisement that quantities are limited;
10) Maintaining "the pianomall.com" without being properly registered as an assumed name with Illinois Secretary of State;
11) Displaying the logo of any piano manufacturer for which Biasco is not an authorized dealer without disclosing that Biasco is not an authorized dealer; and
12) Advertising as its "regular" price, any price at which Biasco has not offered to sell, in good faith, with an intent to sell at that claimed or advertised regular price, for a reasonably substantial period of time in the recent regular course of its business.
The Plaintiffs in this matter are relieved and ecstatic over Judge Wheaton's decision. Competitors with each other, their goal in this litigation was not to collect monetary damages but to stop unfair and deceptive practices in order to maintain an equal playing field. Judge Wheaton aptly observed that "Anything that increases competition and the likelihood that more people will be drawn to music I think is a good thing. I just think it should be done in a manner that comports with the statutes." Judge Wheaton found that the five plaintiffs had a likelihood of irreparable damage in that "persons who might be in the market for a piano are diverted out of their establishments and they are deprived of an opportunity to at least propose a sale" to these consumers. In issuing her order against Biasco, Judge Wheaton concluded that "not only is there a likelihood that these violations will continue unless they are enjoined, I think there is a virtual certainty that they will continue if they are not restrained."
End of press release
The good guys won!