Wal-Mart Pre-Threatens Websites About Embargoed Black Friday Ads

Posted Oct 6, 2008

Wal-Mart Stores, Inc. (NYSE:WMT) has carried on their tradition of sending legal threats to websites about posting Black Friday ads before the embargo date of November 24.  They did this last year and sent out the notices for this year already.  Target Corporation (NYSE:TGT) and Best Buy Co., Inc. (NYSE:BBY) have a tendency to sue actually after the Black Friday ad circulars go up. 

Many commenters on TechDirt are wondering why this is such a big deal.  As a former retail employee, I can honestly tell you that Black Friday is one of the biggest revenue generation days of the entire year.  If any of the circulars get leaked, it means that competitors have access to your information and can attempt to beat the prices.  This in turn will lead consumers to stand in line of your store instead of other stores.

In this case, I actually empathize with Wal-Mart and believe that they have a good reason to send out these notifications.  The law in this case is being used as a tool for preventing anything that hinders corporate capital gains.  I’d probably do the same if I was the CEO of a major retail company.  Below is a letter that Wal-Mart’s legal counsel firm DrinkerBiddle & Reath L.L.P. sent to GottaDeal.com. 

Re: Notification of Authorized Release Date

Dear Mr.

We represent Wal-Mart Stores, Inc. (hereinafter “Wal-Mart”) with respect to its intellectual property matters.  We have been instructed by Wal-Mart to notify you of the authorized release date for Wal-Mart’s Day after Thanksgiving Blitz Circular and Sunday after Thanksgiving Circular, per the terms of the Walmart.com Operating Agreement.

The authorized release date is November 24, 2008.  You and/or your company, through its web site, may potentially come into possession of Wal-Mart’s sales circulars, advertisements or other information prior to their authoized release dates.  Prior to the authorized release date, information regarding Wal-Mart’s products and sales prices is confidential, proprietary, and commercially valuable.  Any release of information prior to its release date is prohibited.

The circulars and advertisement, as well as related documents, are also protected by copyright and other laws.  Therefore, any unauthorized reproduction, publicaiton, or distribution of the materials (e.g., via web site) prior to Wal-Mart’s authorized release date or in any other unauthorized manner, violates Wal-Mart’s rights and jeopardizes your business relationship with Wal-Mart.  Additionally, the law provides liability for those who encourage violations, participate in them or receive economic benefits from them.  Therefore, we wish to emphasize and place you on specific notice of the foregoing.

Please feel free to contact us directly or via counsel if you have any questions, are aware of any violations or are approached by any third-party seeking to disclose or provide information about Wal-Mart’s commercial activities and plans, including dates of sales, discount amounts, etc., prior to their authorized release dates.


Gary J. Rinkerman
Linda T. Makings