VIA EMAIL AT: LEGAL@TOMS.COM
TOMS Shoes, LLC
Attn: Legal
5800 Uplander Way, Suite 100
Culver, City, CA 90230
Re: Notice of Individual Dispute Concerning False or Misleading Email Subject Lines
To Whom It May Concern:
I am providing this Notice of Dispute to notify TOMS Shoes, LLC and any affiliated entities responsible for the challenged conduct (collectively, “TOMS”) of my individual dispute concerning my receipt of commercial emails from TOMS with false, misleading, or deceptive subject lines.
Nature and Basis of Dispute
I personally received promotional emails from TOMS during the applicable limitations period at {answer_4}.
The subject lines of those emails stated or suggested that a sale or discount was ending, expiring, available only for a limited time, or in its final hours. Based on my current understanding and counsel’s investigation, TOMS routinely sent follow-up emails with subject lines purporting to extend or continue the same or a materially similar promotion. The deadline or limited-time language was intended to create a sense of urgency and falsely conveyed that the promotion would no longer be available after the stated or implied deadline. This conduct made the subject-line representations false or misleading.
TOMS emails also contained subject lines that stated or suggested that it was offering a discount, promotion, or free gift or free shipping. Based on counsel’s investigation and current understanding, TOMS routinely required additional action to receive the promotion—often by requiring me to spend a minimum amount of money on TOMS products. This conduct made the subject-line representations false or misleading.
TOMS also sent emails with subject lines that stated or suggested that it was offering a promotion or sale that applied sitewide, to everything, entire orders, or to all items of certain broad categories. Based on counsel’s investigation and current understanding, these promotions were, in fact, routinely subject to exceptions or exclusions. This conduct made the subject-line representations false or misleading.
I contend that TOMS’s conduct violated applicable state law governing false or misleading commercial electronic mail—for example, the District of Columbia Spam Deterrence Act, D.C. Code § 28-5001 et seq.; the Indiana Deceptive Commercial Electronic Mail Act, Ind. Code § 24-5-22-1 et seq.; the Kansas Commercial Electronic Mail Act, Kan. Stat. Ann. § 50-6,107; the Maryland Commercial Electronic Mail Act, Md. Code Ann., Com. Law § 14-3001 et seq.; the North Dakota Commercial Electronic Mail Consumer Protection Act, N.D. Cent. Code § 51-27-01 et seq.; the Washington Commercial Electronic Mail Act, Wash. Rev. Code § 19.190.010 et seq.—as well as other applicable state and federal laws prohibiting false, misleading, unfair, or deceptive advertising and business practices.
This notice concerns all qualifying promotional emails I received from TOMS, including emails that may not yet have been individually identified. I reserve the right to supplement this notice as additional emails, campaign information, transmission records, or other relevant facts become available.
Relief Sought
I seek all relief available under applicable law, including statutory and treble damages where available; restitution and disgorgement; injunctive and equitable relief requiring TOMS to cease the use of false or misleading subject lines; attorney fees; arbitration fees; costs; and any additional relief available under law, contract, arbitration rules, or equity.
My current good-faith demand is $500 per qualifying email, subject to supplementation after TOMS provides records sufficient to evaluate the total amount and full scope of relief available. I reserve the right to supplement my damages calculation and requested relief after those records become available.
Please be aware that TOMS, and any of its implicated employees, vendors, or agents, must preserve all records related to me, including any accounts, addresses, geolocation data, and terms-assent information associated with me. TOMS must also preserve all records relating to the challenged emails, subject lines, and promotions—including the emails and headers; campaign and transmission data; promotion schedules and extension decisions; records identifying the responsible sender(s) and their location(s); all related internal and external emails and other communications; and the metadata relating to same. TOMS must suspend any routine deletion or overwriting that could affect or eliminate records relevant to my dispute.
Informal Resolution
I am providing this Notice in good faith to give TOMS an opportunity to discuss an informal resolution of my dispute before formal proceedings become necessary. Without conceding that any pre-dispute notice, informal-resolution process, waiting period, or other condition precedent is contractually required, applicable, enforceable, or unsatisfied, I am willing to engage in good-faith, informal-resolution discussions during the 30 days following TOMS’s receipt of this Notice. I reserve the right to initiate arbitration or another proceeding sooner if reasonably necessary to preserve my claims.
If the dispute is not resolved, I am prepared to initiate individual arbitration and pursue any other available remedy available to me. If arbitration becomes necessary, I will seek all recoverable attorney fees and, to the fullest extent permitted by applicable law, contract, and arbitral rules; the maximum permissible allocation of filing fees; administrative fees; arbitrator compensation; and other arbitration-related costs to TOMS. My election to pursue arbitration does not concede that arbitration is mandatory or exclusive.
I expressly reserve all arguments and objections concerning the existence, validity, formation, assent, notice, identity and applicable version, applicability, scope, interpretation, and enforceability of any arbitration or related dispute-resolution terms that TOMS may invoke. These reservations include any terms concerning pre-dispute notice, informal resolution, cure, waiting periods or other conditions precedent; contractual deadlines or limitations periods; governing law; forum; venue; administrator or arbitrator selection; arbitral rules; delegation; confidentiality; individual-only, consolidated, coordinated, batched, bellwether, or mass-filing procedures; fees; deposits; costs; fee shifting; waivers or restrictions on claims, procedures, remedies, or relief; and amendments or modifications. I also reserve all arguments that any such requirement was satisfied, substantially complied with, excused, inapplicable, unenforceable, or waived or forfeited by TOMS. Nothing in this Notice waives any claim, remedy, objection, defense, or right to proceed in any other available forum.
I authorize TOMS to communicate with my counsel identified below regarding this dispute and to produce to them all records and information associated with me and my dispute that are reasonably necessary to evaluate and resolve it.
This Notice is not a complete statement of all facts, claims, legal theories, damages, remedies, defenses, objections, responses, or grounds. I reserve the right to amend, supplement, refine, narrow, expand, or otherwise modify this Notice and my requested relief based upon additional investigation, records, technical analysis, discovery, expert review, arbitration proceedings, litigation proceedings, or other information. If TOMS believes that additional information is required to evaluate or resolve this dispute, please identify the specific information requested and the legal basis for the request.
Please direct all communications concerning this dispute to my counsel identified below.
Sincerely,