Abercrombie Gift Card Class Action Lawsuit Barely Survives

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A class action lawsuit involving promotional gift cards from Abercrombie & Fitch Stores Inc. barely made it through the latest court action last Friday. As it stands, the lead plaintiff in the case has a lot to prove before the judge will be convinced that Abercrombie was at fault in the matter, as her summary judgment motion was denied.

In July of 2010, plaintiff Tiffany Boundas and her friend Dorothy Stojka filed a class action lawsuit against Abercrombie for their alleged illegal behavior with regard to promotional gift cards. From November 2009 through December 2009, Abercrombie ran a promotion where a $25 promotional gift card was issued for every $100 customers spent in the store on a single transaction.

Stojka spent $328.49 at Abercrombie and earned $75 in gift cards. She immediately handed them over to her friend Boundas to keep. In April of 2010, Boundas made a purchase at Abercrombie for over $100 and attempted to use the gift cards to apply them toward her purchase. She was told that the balance of the cards was voided after January 30, 2010, when the holiday gift card spending window ended.

Boundas called Abercrombie to resolve the problem with the company but she was told that the cards were in a promotional sleeve that said they would expire on Jan. 30, 2014. Boundas argued that the cards themselves specifically stated in print, “no expiration date” and she did not keep the sleeves because she kept the cards in their own special place she had for them.

By filing the Abercrombie class action lawsuit, Boundas sought to represent herself and others who also received a gift card with the words “no expiration date” as part of the 2009 holiday promotion and who had their balance canceled after Jan. 30, 2010 when it still had a balance left on it. Judge Gary Feinerman certified the Class in 2012.

Boundas’ original allegations included four counts against Abercrombie: two counts of breach of contract and two counts of violation of Ohio Consumer Sales Practices Act. When the Class was certified, the judge discarded the Ohio Consumer Sales Practices Act claims and refined the Class to those who still possessed the card or those who threw the card out once they were told it was expired. Those who transferred the card to someone else, like Stojka did, were not included in the Class, so that voided Stojka’s claim.

Under law in Illinois, a contract, such as the spend $100 get $25 promotion, is made up of an offer, acceptance, consideration and mutual assent. Boundas accepted the offer and per current Judge John T. Tharp Jr., the evidence showed that the offer she accepted had an expiration date.

Boundas then argued that she entered into a second contract when the gift cards were issued. The judge explains, “If the issuance of the gift cards created a new contract, as Boundas claims, she must present evidence that Abercrombie’s customers incurred some reciprocal obligation.” Boundas believes Abercrombie should be bound by what the printed date was on the cards.

The lead plaintiff continued to argue on behalf of the Class that “advertisements are not part of contracts” with reference to the signs/card promotional sleeve expiration dates. The court stated that advertising did serve to notify of terms, and customers who enter into the transaction then agree to abide by the terms. In summary, “Accepting Boundas’ argument would render meaningless one of the three advertised terms of Abercrombie’s promotion- terms that she (and other class members) agreed to when completing the sale transaction.” To the judge, it did not appear there was a second contract when Abercrombie issued the gift card with a different expiration date than the promotional advertising listed.

Judge Tharp summarized, “Denial of Boundas’ summary judgment motion is therefore warranted, not because there are disputed issues of material fact, but because the legal theory on which Boundas’ breach of contract claim is based is fatally flawed.” Boundas will have the opportunity to show why judgment should be entered in her favor in a status hearing on Sept. 10, 2015.

Boundas is represented by Vincent L. DiTommaso, Peter S. Lubin, Andrew C. Murphy andPatrick Austermuehle of Ditommaso Lubin PC and James Shedden of Shedden Law.

The Abercrombie Gift Card Class Action Lawsuit is Boundas v. Abercrombie & Fitch Stores Inc., Case No. 1:10-cv-04866, in the U.S. District Court for the Northern District of Illinois.