On September 15, U.S. District Court Judge Colleen McMahon refused to decertify a class of New York consumers who are complaining about Best Buy's price matching policy, despite Best Buy's arguments that the Supreme Court's recent decision in Walmart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), required decertification.

Best Buy frequently advertises its "Price Match Guarantee," whereby it will match a competitor's lower price in-store, subject to certain exclusions. The complaint in Jermyn v. Best Buy Stores, L.P. (S.D.N.Y., No. 08-214) was filed in 2008, and alleges that Best Buy engages in false advertising by using its price match guarantee to lure consumers into its stores, but then trains its employees to aggressively discourage legitimate price match requests. (Complaint available here; login required.) The plaintiffs are New York consumers who were denied valid price matches; Judge McMahon certified the class in 2009, and subsequently denied Best Buy's motion for summary judgment in January 2011.

Because a change in controlling law can provide a basis for decertification, Best Buy argued that the Supreme Court's June opinion in Dukes -- which held that a class must be united by a common question of law or fact -- changed the law. But Judge McMahon did not agree; she found that although Dukes does undermine some of the Second Circuit precedent she relied on to certify the class, nonetheless (and in contrast to the plaintiffs in Dukes), the Jermyn plaintiffs had presented a common question, namely whether Best Buy maintains a corporate policy of denying valid price match requests. On that point, Judge McMahon found that the plaintiffs had presented "significant" proof of such a policy.

Regardless of the outcome of the long-running Jermyn case, at least one thing is clear for retailers: if you institute a price match policy, you need to ensure that your employees are trained to comply with it, or face litigation. Indeed, per Best Buy's attorneys, the Jermyn suit is just one of four that have been filed nationwide against Best Buy's price match policy.