Saks.com sued over promotional texts sent before 8am, plaintiff says

Saks.com is facing a proposed class action lawsuit over unsolicited telemarketing text messages, including some sent before working hours. Plaintiff Benjamin Rushin filed the suit last month in the Western District of California, alleging the retailer violated the 1991 Telephone Consumer Protection Act and regulations set by the Federal Communications Commission.

Saks.com is the online arm of Saks Fifth Avenue, known for a curated selection of designer brands, a personalised shopping experience both in-store and online, and the holiday window displays that have become one of its signatures.

The filing calls the messages "not informational or transactional," saying they were meant to "advertise, promote, and encourage the purchase" on Saks.com rather than inform customers about their own orders. Rushin says his number has been listed on the National Do-Not-Call Registry since July 2014 and that he never gave permission for the messages.

His complaint says the conduct "invaded" his privacy, "disturbed" his "peace and quiet" and caused "nuisance and annoyance" in what it calls a private, personal realm. The registry itself is run by the Federal Trade Commission, and it does not block calls: it simply tells registered telemarketers which numbers they may not contact.

The rules the lawsuit cites

The lawsuit argues a text message counts as a call under the TCPA. It also cites FCC rules that bar telephone solicitation before 8am or after 9pm, and that prohibit contacting any number registered for at least 30 days.

The filing further argues Saks.com cannot claim safe harbor, the legal standard for acting in good faith. It says the company failed to establish and implement, with due care, reasonable practices to prevent solicitations to registered numbers.

The retailer emerged from Chapter 11 bankruptcy last June. Its parent, Saks Global, houses Neiman Marcus and Bergdorf Goodman alongside Saks Fifth Avenue and now operates under the name Exemplar Luxury Group.

Saks Global was formed through the merger of Saks Fifth Avenue and Neiman Marcus, and the financial strain that followed has driven store closures across the group.

What Saks Global's retreat means for its landlords

We have reported that Simon Property Group posted a strong second quarter, citing robust leasing activity and rising retail sales across its malls and outlet centres. The landlord recovered roughly a million square feet of space through Saks Off 5th's store closures, space it plans to re-let to more productive tenants.

We have also reported that Simon is on pace to more than double the rent it collects on that space once it is re-let, after Saks Global stopped paying the rent tied to the stores it closed.

Landlords have been backfilling vacated anchor space with luxury boutiques, experiential retail and food and beverage tenants, a shift spreading across top-tier malls in recent years. Prime space once let to a single large-format tenant can be split among multiple smaller retailers at a higher combined rent per square foot than the original lease commanded.

Simon's ability to backfill that space quickly points to top-tier mall real estate bifurcating sharply from weaker secondary locations, and what happens next depends on how quickly Simon fills the remaining vacated space and whether Saks Global's broader store rationalisation continues at pace.

A judge has not yet certified the case as a class action. Federal law requires the case to meet standards on the scale and commonality of the alleged harm before that step can happen.

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