VarsityBooks Seeks Dismissal of NACS Suit
Jim Milliot -- 12/20/99
All but saying that the National Association of College Stores' suit against it is a publicity stunt intended to harm its IPO, VarsityBooks.com filed a motion on November 22 for the court to dismiss the suit.
VarsityBooks said that the key issues -- that its advertising of price discounts "at 40%" and "up to 40%" are false and misleading -- aren't actionable. It also blasted the association for not notifying it of the objections before filing suit, for filing suit "in the middle of VarsityBooks' initial public offering process" and for not suing other online booksellers that make similar claims but, unlike VarsityBooks, are NACS members.
In the motion to dismiss the NACS suit -- which itself was filed at the end of October -- VarsityBooks explained that the statement saying it sells textbooks "at a 40% discount" has not appeared since September 7, when it was changed to say "up to a 40% discount."
In the case of the second statement at issue ("up to a 40% discount"), VarsityBooks noted that in its initial filing, NACS itself said that "Varsity offers only a small percentage of its textbooks at 40% below the prices charged by on-campus bookstores and other online competitors," thereby affirming "that some textbooks are offered at a 40% discount."
It is VarsityBooks' argument that "the words ˜up to' have an accepted meaning in modern commercial parlance -- the phrase describes a range up to the stated percentage, but also includes all amounts below."
The company added that some NACS members and associate members, including B&N College Bookstore's Textbooks.com and Wallace's eCampus.com, make similar claims with ads saying "up to 50% lower than the suggested retail prices" and "save up to 50%." According to VarsityBooks.com, "It is noteworthy that NACS has not sued over these claims made by competitors of VarsityBooks that are members of NACS."
The college e-tailer also criticized NACS for not inquiring or complaining about the statements. "Indeed," VarsityBooks said, "NACS's press release about its lawsuit [was] issued on October 29, 1999 -- three days before VarsityBooks was even served with the complaint."
Volume 245 Issue 51 12/20/1999