$1.39 conversion claim falls short, Wal-Mart argues

Steve Korris Aug. 17, 2006, 12:27pm

Attorney Tom Lakin is listed in the certificate of service

Attention Wal-Mart shoppers: "This (gift) card may not be redeemed for cash."

"Only a person hoping to manufacture a lawsuit would find ambiguity in this language," wrote a Wal-Mart attorney seeking to dismiss a Madison County class action lawsuit over a $1.39 dispute.

As the remarkable case of plaintiff Ashley Peach ambles along in Madison County Circuit Judge Nicholas Byron's court, a new development is curious because of its secrecy.

Regular folks cannot read a Lakin Law Firm brief for Wal-Mart because Peach filed it under seal. According to a new administrative rule adopted in Madison County in May, a court order must be obtained to file a document under seal.

Peach sued Wal-Mart in 2004, complaining that the retailer should have given her $1.39 in change on a gift card purchase. She sued K-Mart and Fashion Bug too. In all three suits she proposed to represent all who should have received change.

Last year she dismissed Fashion Bug.

Wal-Mart attorney Jennifer Kingston of Bryan Cave in St. Louis believes some things in Peach's brief are contrary to law. On Aug. 10 she asked Byron to strike portions of it.

But Kingston kept her brief almost as mysterious as the sealed brief Peach filed in May in response to a Wal-Mart motion to dismiss.

She wrote that Peach's brief inappropriately relied on discovery responses to bolster a conversion claim in her complaint.

"This improper tactic evidences plaintiff's failure to successfully plead her conversion claim and is contrary to Illinois law," Kingston wrote.

She also wrote that several of Peach's requests for damages or other forms of relief were contrary to Illinois law.

The hazy record does not even identify the target of her charges.

Jeffrey Millar of the Lakin firm is attorney of record, but on Kingston's brief the certificate of service listed four attorneys above Millar.

First she named Chicago attorneys Paul Weiss and Tod Lewis. Then she named L. Thomas Lakin and Bradley M. Lakin.

Thomas Lakin, however, voluntarily gave up his law license on March 20.

Kingston moved to dismiss Wal-Mart and K-Mart. Byron set hearings on both motions Friday, Aug. 18, after press time.

She wrote in her Aug. 10 brief that even with the use of improper evidence, Peach did not sufficiently allege conversion.

Kingston wrote that Peach fell short of stating any claim against Wal-Mart.

"Plaintiff has $1.39 remaining on her gift card which she is free to use at any Wal-Mart store at any time," she wrote.

Peach did not allege she was coerced into accepting the card, she wrote, or that Wal-Mart threatened dire alternatives if she did not accept it.

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Bryan Cave
1 Metropolitan Square
St. Louis, MO 63102

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