Hollister Gift Card Class Action Lawsuit Continues

Last week, the class action lawsuit accusing Hollister Co., a retail clothing store, of failing to appropriately honor gift cards survived a motion to dismiss made by Hollister who challenged Class certification.

Lead plaintiffs claimed in their 2011 class action lawsuit that Hollister promoted $25 gift cards with no expiration date for every $100 spent by consumers during a Christmas 2009 promotion, but cancelled the cards without warning in January 2010.

The class action lawsuit alleges that Hollister failed to honor the terms of the contract on the gift cards it issued during the Christmas promotion, namely that the gift cards stated “No expiration date,” yet Hollister voided the cards on Jan. 30, 2010 eliminating all remaining credit on the cards. According to court documents, Hollister cancelled over $3 million in gift cards.

Hollister claimed in response that they included the expiration date in a sleeve containing the gift cards and that their employees were trained to point out that the gift cards would expire.

The superior court judge in the matter certified the plaintiff’s proposed Class in February of last year. In turn, Hollister appealed and argued in a motion against Class certification that there was no reliable way to ascertain the Class proposed by the plaintiffs in their class action lawsuit.

Last week, a three-judge panel of New Jersey Appellate Court judges disagreed and rejected Hollister’s motion saying that the law should be read to protect the “smaller guy,” in this case, Hollister’s customers.

“Although we doubt the ascertainability doctrine adopted by some federal courts should ever be incorporated into our jurisprudence, we conclude in this matter of first impression that ascertainability must play no role in considering the certification of a low-value consumer class action and, therefore, affirm,” said the judges in their order.

Hollister has argued that determining the size of the Class would be problematic because the gift cards were not always associated with customer information and also because some customers may have discarded or lost the card. The Appeals Court disagreed, pointing out that the difficulties in ascertaining the Class were a result of Hollister’s actions. “Had defendant obtained the identities of consumers when giving out $25 gift cards, the problems it now offers as grounds for upending certification would not exist,” said the judges in their order.

The judges also noted that Hollister had somehow identified the $3 million in gift cards when they cancelled them, asking, “Are not the many individuals still in possession of canceled gift cards easily ascertainable?” The Appellate Court judges also pointed out that federal ascertability doctrine is interpreted liberally in favor of the Class.

The Class is represented by Cary L. Flitter, Theodore E. Lorenz and Andrew M. Milz of Flitter Lorenz PC, James Shedden of Shedden Law, and Vincent L. DiTommaso and Peter S. Lubin of DiTommaso Lubin PC.

The Hollister Gift Card Class Action Lawsuit is Vincent Daniels v. Hollister Co., Case No. A-3629-13, in the Superior Court of New Jersey, Appellate Division. The previous case was Vincent Daniels v. Hollister Co., Case No. L001485, Circuit Court of the Eighteenth Judicial Circuit, Wheaton, Du Page County, Illinois.