On April 9, 2015, Wanda M. was banned from Walmart. Wanda signed a document entitled "Notification of Restriction from Property," which reads:
Walmart can prohibit individuals from entering its property who interfere with its business, shoplift, destroy property or otherwise behave in a manner that is unacceptable to Walmart. Walmart has determined that you have engaged in conduct sufficient to necessitate limiting your access to Walmart property.
This document constitutes formal notice and warning that you are no longer allowed on Walmart property or in any area subject to Walmart's control. This restriction on entry includes, but is not limited to, all Walmart retail locations.
Should you elect to ignore this notice and enter Walmart property, Walmart may contact law enforcement and request you be charged with criminal trespass.
Wanda was given this document to sign at her second alleged shoplifting incident. The merchandise was valued at $46 and was recovered by Walmart in sellable condition. The event resulted in Wanda being banned from 4,540 Walmart stores across America.
Her first incident -- at the same York, Pennsylvania store -- occurred seven months ago, on September, 26, 2014. "I don't remember the details of it," Wanda told me.
I don't know what I took. They rung it all up. It totaled $146.50 -- just random things. I paid for some things at checkout. They weren't hidden, they were clearly in view. The cashier never asked me if I had paid for that.
I begged LP [Loss Prevention] to just let me pay for it. Corporate said, 'We can't do that.' I just wanted to work out a deal.
I called Walmart and tried to pay $150, instead of going to court. I was told that since they recovered all the merchandise in good shape that it would be illegal for them to keep the merchandise and accept $150 from me.
I wanted to make things right and avoid a conviction. I asked to pay $150 and be banned from the store in exchange for not being criminally charged. I even offered to pay $150 to Walmart charities. Nothing was damaged or taken, yet Walmart prosecuted anyway.
Wanda went to District Court. "The judge was lenient," Wanda recalls, "and the matter was settled without a hearing. The Judge had a diversion program for first-time offenders. The court sent me to a course on shoplifting. A two hour course, plus a fine of $257 to the court."
Wanda's criminal case was over -- but Walmart's civil damages case against her was just beginning.
One week after my first incident, I get a letter from this law firm saying I owed Walmart $150. The law firm was out of New York state. I got at least three letters saying: 'If you don't respond in 10 days, we're going to take you to court.'
Nothing happened. They tried to scare me. Another letter came around three weeks later, marked 'Second Notice,' and then a third letter arrived in early December.
All three letters were signed by the same Pennsylvania attorney. But during this three month period, the attorney said he was representing two different law firms -- one in Greenvale, New York, the second in Melville, New York. The Melville law firm declared it was the "new counsel" for Walmart Stores, Inc., and that Wanda's file had "been turned over to this law firm because you continue to ignore this matter." Each letter said in boldface: "This is not an attempt to collect a debt." The first letter gave Wanda 30 days to pay. The second letter gave her 10 days to pay. The third letter gave her 30 more days to pay. Each letter pushed the payment date further down the road.
After her second incident at Walmart in April, Wanda received a letter from the Greenvale, N.Y. law firm starting the civil process again. "Funny," she says, "I haven't even entered a plea yet, and can't enter a plea until my fingerprints come back from the State Police. Nor have I been convicted of a crime."
Wanda was given an undated notice from Walmart Asset Protection Recovery that the "incident" she was involved in at the store "may have implications beyond criminal charges." It explained that state law "allows retailers to recover civil damages/penalties," and warned her that she would be receiving a "written notification" from lawyers explaining Walmart's civil remedy. "If you receive such a notification, please respond promptly, as they act on behalf of Walmart." The Walmart letter closed with this statement: "This notification is for informational purposes only, and is not a release from criminal prosecution, nor does it negate trespass warnings issued by Wal-Mart Stores, Inc."
Wanda was handed a copy of Pennsylvania's Civil Recovery Statute on Walmart letterhead, which states that the court can award a civil penalty to the retailer "in the amount of the value of the merchandise plus $150." But Pennsylvania law does not allow retailers to add in "loss of time or wages incurred by the plaintiff in connection with the apprehension and prosecution of the defendant." State law stipulates that if a defendant pays the retailer "a penalty equal to the retail value of the merchandise," plus the sum of $150, "that person shall be given a written release from further civil liability."
The law firm that first contacted Wanda was the Law Offices of Michael Ira Asen, P.C., which describes itself on its website, recoverypay.com, as "a leader in civil recovery." Asen says it has "expertise in all aspects of retail security operations, from loss prevention services, to employee restitution and civil demand" that "gives retailers important advantages in achieving timely, cost-effective recovery." Asen says it represents "several national retailers, including department stores, restaurant chains and grocery chains."
Every state has laws that allow retailers to pursue civil damages. In New York, retailers can seek to recover five times the cost of the stolen merchandise, up to $500 per item, plus as much as $1,500 if the merchandise isn't in a condition to be sold.
An Associated Press report from 2013 found that "some customers say stores have harassed them into signing admissions of guilt in order to turn a profit -- not just recoup a loss." The AP noted that retailers won't disclose how much money they make from these civil damages letters. One Florida-based law firm, Palmer, Reifler & Associates, P.A., that represents Walmart, Home Depot and a number of other major retailers told the AP it "sends out about 115,000 letters per month."
In 2008, the Wall Street Journal reported that there was:
Little oversight of a system retailers call 'civil recovery'...with no proof of theft, the retailers demand money -- often $200 but sometimes far more -- and promise to avoid suing if it is paid quickly. Laws vary by state, but in general, retailers can demand these sums even if the item at issue was worth far less and was quickly recovered and put back on the shelf.
The WSJ describes this dunning process as "humiliating and intimidating ...with no way to resist short of hiring a lawyer." Law firms keep 13 percent to 30 percent of what they collect. Ironically, some of the retailers who authorize these collection letters have little or no intention of suing -- leading some attorneys to suggest that civil recovery is nothing more than a legalized form of shakedown.
A plethora of online legal advice columns counsel people like Wanda to just ignore the retailer's collection letters.
"I generally advise clients to ignore these civil demand letters," one attorney writes.
You don't owe them anything. In order for you to owe them something they would have to sue you...and win. Even if they could win, the cost of pursuing this is substantially greater than any amount they can possibly recover so they usually don't.
They send out these letters because it doesn't cost much and they are hoping that you don't know better and simply send them the money. Nothing will happen to you if you don't pay it.
"Do not pay," another lawyer counsels.
If you do, you will be in the national retailer's database which could affect your ability to get a job and could impact your life in other ways. If you are uncomfortable, hire a lawyer and have the lawyer write a letter. That should be the end of it.
But Wanda has not yet seen the end of it. She is facing criminal and potential civil action stemming from her second incident. "I don't have a court date yet," she says. "Honestly, I'm not even sure what I'm being charged with, a summary or a misdemeanor. The sheriff didn't do much other than fingerprint me."
"I tried to work something out with Walmart -- pay for the merchandise -- but they wouldn't bend on that," Wanda says. The civil recovery process ensnares people who are suspected of stealing small amounts of merchandise -- even by small claims court standards. These people face criminal charges regardless of the civil claim. Walmart pursues poor people for petty sums that seem grotesque when compared to the great wealth of the family that profits most from Walmart. Wanda lives on $9,000 a year. Rob Walton, the Chairman of the Board at Walmart, is worth an estimated $38.3 billion.
There are law firms who earn their living pursuing civil claims from people like Wanda. The state laws that allow rich corporations to hire attorneys to intimidate people with threats of civil damages that rarely go to court, should be struck from statute.
It's Walmart who should be banned -- from chasing these civil cases.
Al Norman founded Sprawl-Busters in 1993 to help community groups fight big box sprawl. His latest book is Occupy Walmart.