If Wal-Mart runs out of certain hot early-bird specials during big shopping days such as the day after Thanksgiving, can it be suedfi

The answer is yes, at least according to Matthew Howell, an attorney with the Provo law firm of Fillmore Spencer. Whyfi Because, Howell said, Wal-Mart refused to give out rain checks for the sold-out sale items and failed to clearly and adequately state that supplies were limited.

On Wednesday, Brandon and Tonya Barker of Provo brought class-action claims against the giant discount retailer, saying they were "victims of Wal-Mart's 'bait and switch' modus operandi" because they weren't able to buy certain advertised items during the early-bird sale on Nov. 25. Instead, they had to buy other items that weren't at early-bird prices.

On Black Friday, the Barkers had arrived at the Orem Wal-Mart store at 7:30 a.m., only to find the day-after-Thanksgiving early-bird specials they wanted already were sold out. They then drove to the Springville and Payson Wal-Mart stores but weren't able to get the sale items there. Nor were they given rain checks for the sold-out items, the suit says.

John Simley, a public relations officer for Wal-Mart, said he couldn't comment on the lawsuit because he hasn't read it. Other Wal-Mart representatives weren't immediately available for comment on the store's retail policies.

In the lawsuit filed in 4th District Court in Provo on Wednesday, the plaintiffs alleged violations of the Utah Truth in Advertising Act and the Utah Consumer Practices Act. Howell is seeking class-action status for the case and statutory damages of $2,000 per plaintiff.

"The Truth in Advertising Act says that when you advertise a sale, you need to have enough in stock to meet reasonably expected public demand. But there are exceptions to the law. One, if you give out rain checks, or if the ad clearly and conspicuously states that supplies on hand are limited," Howell said. "In Wal-Mart's case, the ad did say 'while supplies last.' But it was in very small print. The law requires the disclaimer be published in at least a 10-point type face, as opposed to the 7-point type in Wal-Mart's ad."

"It was a 'bait and switch,' " he said. "The Barkers didn't get what had lured them in, but they spent money on items that weren't on sale."

Joshua Eaton, president of the Utah Advertising Federation, notes most retailers protect themselves with disclaimers in their advertisements, especially if they are carrying limited amounts of product at discounted prices for a limited period. "It's common sense that once that's gone, it's gone," he said.

"So many times, these sale items were bought by the retailers at given prices and given amounts from the suppliers, and the retailers are passing those savings to the customers," said James V. Olsen, executive vice president of the Utah Retail Merchants Association. "But retailers can't outguess what consumers are going to do. They have to make sure there's enough to meet customer demand but also make sure there isn't a full backroom of product after the sale."

Olsen said the Truth in Advertising Act was enacted to protect the consumers' right to know.

"The act prohibits advertising that misleads or gives consumers false hopes or impressions to get them to the store," Olsen said. "And there are different methods to meet the law's standards. One is to have sufficient supply; another is to put disclaimers in the ad; and a third is to issue rain checks. Observing any one of those things keeps the retailer in the parameters of the law."

"I don't know why they went to attorneys instead of the state Division of Consumer Protection," he said. "This law doesn't get a lot of action because for the most part, businesses do their level best to take care of customers and not surprise them. Besides, the penalties aren't great. Two thousand dollars is the maximum you can get."

This story appeared in The Daily Herald on page A1.