Seller claimed Womb Chair was a particular brand and it wasn't; it's a knockoff; small claims court?

[adjusterjack]

In August 2019, we saw an advertisement on facebook marketplace (saved by screenshot) listed by the defendant. It stated that a “modern midcentury womb chair” he was selling was “Brand: DWR” [Design Within Reach].

On August 30, we saw and liked the chair, and because we trusted of the defendant’s repeated references to assertions that the chair was a DWR, bought it, and took it home. When we tried to find this model of the womb chair in DWR and could not. A representative at DWR later confirmed that DWR never sold this model of chair.

In subsequent written communication (downloaded) the defendant repeatedly misrepresented the chair as having been bought at DWR, although he didn’t “have [the receipt] anymore.”

We agreed to purchase the chair because it was represented by the seller as a used DWR/Knoll Womb Chair. Our agreement with the defendant was to pay $900 and he would sell us a Womb Chair, specifically bought at DWR.

What was sold and what we purchased instead, however, was a used chair that was factually not an authentic DWR/Knoll Womb Chair.

We trusted the false advertising and the fraudulent misrepresentation by the defendant. We ask for a full refund and to give the defendant back his chair.

Well, here's my two cents worth of "editing" advice.

You use the word "we" a lot. Are there two Plaintiffs or just one? If it's just you change "we" to "I."

Womb Chair (instead of womb chair). Treat it as a name brand.

Note my other corrections. Eliminate the "We trusted" business. Makes you come across as petulant.

You had a contract to buy an authentic DWR Womb Chair. The defendant breached that contract by selling you a fake. It's the contract and the breach that you emphasize in court and provide your evidence.

I seem to recall you mentioning a written statement from the DWR rep. That might not be admissible. At least if the Defendant is smart enough to object to it because the witness is not present for cross examination. Without your witness testifying in court all you have is your sayso that it's a knockoff. And that might not be good enough.

 

[mahstmacat]

Oh, one thing though -- I asked him for the receipt and he said, NOT that he didn't buy it there after all (I was trying to give him an out), but rather that "I don't have it anymore." So he doesn't claim he has the receipt, just ftr.

 

[mahstmacat]

Well, here's my two cents worth of "editing" advice.

You use the word "we" a lot. Are there two Plaintiffs or just one? If it's just you change "we" to "I."

Womb Chair (instead of womb chair). Treat it as a name brand.

Note my other corrections. Eliminate the "We trusted" business. Makes you come across as petulant.

You had a contract to buy an authentic DWR Womb Chair. The defendant breached that contract by selling you a fake. It's the contract and the breach that you emphasize in court and provide your evidence.

I seem to recall you mentioning a written statement from the DWR rep. That might not be admissible. At least if the Defendant is smart enough to object to it because the witness is not present for cross examination. Without your witness testifying in court all you have is your sayso that it's a knockoff. And that might not be good enough.

 

[mahstmacat]

Thanks, adjusterjack. We were planning to file as two plaintiffs, my husband and I. Otherwise I'd say I...should I just file as myself? We were thinking we should do it together because he was there too...

Well, we have photos of real womb chairs and photos of this one...the style of foot, the style of fasteners, the fact that there is no welding underneath this frame as there is with a womb chair...and the measurement-difference as well. We have plenty of proof that it isn't a womb chair; he has none that it is (I know the burden of proof is on us, though).

If the DWR rep doesn't want to testify (we haven't asked her yet, just talked about the chair), would the photo and measurement differences (official measurements on the DWR site) be helpful? There's definitely more than just a 'sayso'...

 

[quincy]

You and your husband can file as plaintiffs together.

It would be best to have a DWR representative with you in court to testify to the differences between the chair you were sold and an authentic chair but DWR publishes online the dimensions of the authentic chair. A comparison could be easy.

The seller has several arguments he potentially can use in his defense, with his best defense perhaps being that it was on you as purchaser of used goods to examine the chair prior to purchase.

Your best argument is the advertisement declaring that the chair was a DWR/Knoll Womb Chair. The seller misrepresented what he was selling.

 

[mahstmacat]

Yes, thanks, quincy - from what we're reading, what he did specifically qualifies as misrepresentation. It's not a matter of degree or condition, it's a matter of hat it is or isn't. An analogy that comes to mind is if someone buys a cubic zirconia advertised as a diamond and then later learns it's not a diamond, that person has a case against the seller for misrepresentation. Doesn't matter that the buyer liked it or bought it -- it was factually misrepresented.

 

[adjusterjack]

Well, we have photos of real womb chairs and photos of this one...the style of foot, the style of fasteners, the fact that there is no welding underneath this frame as there is with a womb chair...and the measurement-difference as well. We have plenty of proof that it isn't a womb chair; he has none that it is (I know the burden of proof is on us, though).

I've read thousands of posts where people insist they have proof but have no idea what "evidence" means or how it's presented in court. Granted, small claims court is a little looser about rules but, unless you bring the chair and the DWR representative to testify that it is fake, you risk losing.

You may need to subpoena her if she won't cooperate.

 

[quincy]

The more evidence you have that the seller is unable to dispute (the ad, the texts, Womb Chair facts, testimony from DWR), the better chance you have of getting a court to decide in your favor.

The seller may decide to refund your money as soon as he receives the summons and complaint. If he contacts you with a promise of a refund, I recommend you do not return the chair or withdraw your legal action against him until the $900 is securely in your hands.

Good luck.

 

[adjusterjack]

The seller may decide to refund your money as soon as he receives the summons and complaint.

That's the positive side of the lawsuit coin.

The negative side is he may ignore the lawsuit and OP gets a default judgment which may turn out to be uncollectable.

 

[quincy]

That's the positive side of the lawsuit coin.

The negative side is he may ignore the lawsuit and OP gets a default judgment which may turn out to be uncollectable.

From mahstmacat's description of the chair seller's business office, the seller does not exactly appear to be destitute.

But collecting on a judgment sometimes can be more difficult than getting the judgment.

 

[mahstmacat]

So I have hit a roadblock and have a question. Is it possible to subpoena information from DWR? The manager there said that she can't do anything officially, i.e. confirm/deny the authenticity of the chair or state whether the seller ever bought such a chair from DWR, because corporate tells her not to. They hold the essential information as to my case and they refuse to help because of corporate policy. What can I do?

 

[adjusterjack]

Is it possible to subpoena information from DWR?

Of course. But if you get it you run the same risk as using a written statement (which apparently no longer going to happen). You'll be presenting pieces of paper with no foundation and no opportunity for the defendant to cross examine the originator of the documents to determine their authenticity.

They hold the essential information as to my case and they refuse to help because of corporate policy.

That's their right.

Any time you go into court relying on somebody else to make your case, you risk losing.

Your best bet is to subpoena her. If she shows up, she gets on the stand and answers yes or no to one question. Is it or isn't it?

If she doesn't show up or if her corporate lawyers get the subpoena quashed, you're back where you started, with "sayso" and you go into court with what you've got and hope for the best.

As previously suggested, getting served may scare him into submission, or not and you'll have your day in court.

Sue, and you have a chance.

Do nothing, get nothing.

 

[PAPP]

I'm not familiar with furniture, but I'm guessing professional furniture authenticators exist. I have no idea if there is a DWR specialized authenticator, but who knows. If you can find a used furniture dealer or a professional secondhand furniture seller who lists DWR furniture, you can ask them about the authenticator. Or find a furniture enthusiastic people forum, they may share such information.

I only know professional authenticators of fashion items and I know they issue a formal authenticity or inauthenticity letter for an item. It costs around $100. I'm guessing furniture dealing people do the same thing.

I don't know if a letter is good enough for the courts, but I know it's good enough to dispute with financial institutes.

Good luck!

 

[mahstmacat]

Thank you both, adjusterjack and PAPP. I will try to find an authenticator who would be willing to testify, so that s/he could be cross-examined, rather than just offer a letter, which as adjusterjack describes, is less optimal. (adjusterjack, what do you mean by 'with no foundation'? Is that a specific legal term? Because DWR would appear to be the ultimate authority, wouldn't they?)

 

[quincy]

Thank you both, adjusterjack and PAPP. I will try to find an authenticator who would be willing to testify, so that s/he could be cross-examined, rather than just offer a letter, which as adjusterjack describes, is less optimal. (adjusterjack, what do you mean by 'with no foundation'? Is that a specific legal term? Because DWR would appear to be the ultimate authority, wouldn't they?)

You can subpoena someone at DWR to testify in court.