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Portland's 'underdog lawyer' says hundreds of Oregonians were duped into downloading an app with promise of a free treat, a violation of state law.

COURTESY PHOTO - An illustration from a federal lawsuit shows the advertising that an attorney says 'lured' a Portland-area woman into downloading the app in return for a 'free' Blizzard.Mariel Spencer wanted a free Blizzard. So, the Portland-area resident downloaded Dairy Queen's smartphone app, signed up and headed to her local DQ for the sweet treat.

She didn't get the "free" Blizzard. Instead, Spencer is now the lead plaintiff is a potential federal class-action lawsuit slamming the international ice cream restaurant chain for duping Oregon customers.

If successful, the lawsuit filed July 13 in U.S. District Court by Portland attorney Michael Fuller — known as the Underdog Lawyer — could require International Dairy Queen Inc. to pay "the monetary value of at least five Blizzards" to hundreds of Oregonians who downloaded the DQ app and failed to get their free treat. Spencer's lawsuit also asks the court to require DQ to pay "other relief" deemed "fair and proper."

Blizzards, those ice cream treats blended with all sorts of ingredients (Oreos, M&Ms, Heath bars) cost between nearly $3 and $5, depending on the size. According to Spencer's lawsuit, hundreds of Oregon residents were enticed to download DQ's smartphone app with the promise of a free Blizzard. When many were denied their free treat, that might have violated Oregon's Unlawful Trade Practices statute, according to the lawsuit.

"Ms. Spencer and hundreds of other Oregon customers suffered ascertainable losses of the money they paid to purchase a delicious Blizzard ice cream treat that should have been free, and of the transportation costs and other resources each of them expended to travel to a Dairy Queen location that they otherwise would not have expended had Dairy Queen not lured them in with the false promise of a free Blizzard," according to the lawsuit.

Dean Peters, director of communications for American Dairy Queen Corp., wrote in an email that the company does not comment on pending litigation. International Dairy Queen is owned by Berkshire Hathaway Inc., which also declined to comment on the lawsuit.

COURTESY PHOTO - Dairy Queen's website may have enticed people to download its app with a 'free' treat, that wasn't free at every DQ in Oregon, according to a federal lawsuit.

False promises

No court date has been set for the lawsuit. A federal judge would have to approve class-action status for Spencer's lawsuit.

Fuller wrote in the lawsuit that any Oregonian who downloaded the DQ app after Jan. 1, 2018, could be part of the legal action. Even though that number has not been determined, Fuller wrote that records of DQ mobile transactions could provide a clue to the number of disgruntled customers, many of which commented through social media on the app's misleading claims. DQ's standard online response to the complaints was to assure customers the company was working with independent franchises to "ensure participation" in the mobile app's coupon and "provide fans with an enjoyable experience."

Fuller wrote that Spencer was typical of DQ customers who downloaded the app and traveled to their local restaurants hoping to get free Blizzards. Spencer went to the Dairy Queen in Banks, presented her smartphone app coupon and was told it wasn't valid at that restaurant.

"Dairy Queen's false advertisement on its mobile app caused Ms. Spencer the loss of the money charged to her for a full-price Blizzard," according to the lawsuit.

Fuller claimed that others who could be part of the legal action "suffered ascertainable losses of the money paid to purchase a Blizzard that should have been free, or of the transportation costs and other resources expended to travel to a Dairy Queen location they otherwise would not have expended had Dairy Queen not lured them in with the false promise of a free Blizzard."


Kevin Harden
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