Legal action against Blackhawk re: Simon Cards
Dec 25, 2020, 11:49 pm
#1
Original Poster
Join Date: Jul 2014
Location: JRF
Programs: AA Gold, Marriott Platinum, Hilton Diamond, National Executive Elite
Posts: 1,784
Legal action against Blackhawk re: Simon Cards
If I had to make a random guess, I think they will offer to refund the gift cards if I agree that this is one-time thing, an offer I will refuse. I certainly don't plan to keep buying cards that I know I can't use, but I won't leave myself hanging out there for future situations like this.
Last edited by ChrisFlyer66; Dec 26, 2020 at 9:46 am Reason: profanity not allowed
Dec 26, 2020, 2:15 am
#2
Join Date: Dec 2020
Programs: Delta Diamond (MM) | Hertz President's Circle
Posts: 158
At this point I have no viable options for GC liquidation. In the GC Terms and Conditions, "IMPORTANT NOTICE" 4 states "If you do not agree to these terms, do not use the card, save your receipt, and cancel the card by calling customer service and requesting a refund check." I did precisely that. The CSR was extremely polite (as they usually are). I had to register the cards (no big deal) and he took the card numbers. I received a letter the next day asking for proof of purchase, which I provided. The next day I got an email saying:
Let us inform you the cards are non refundable and specially {sic} they are active and good to be used.
In case you want to request a refund please send a very detailed reason, include any police report or any useful information so we can escalate the to our upper management.
I replied by saying that simply I do not agree to the terms and conditions, and that it would be foolish to prolong the matter because I would file an arbitration at their expense and they'd only end up paying more.
They replied by saying they have escalated to upper management and would contact me again in 3-5 days.
I see no reason to say anything more to them than that I do not agree to the T&C, and it's their contract. Period.
Blackhawk is not at all a fly-by-night operation. It was founded by Safeway in 2000. It is NASDAQ listed, and went public in 2013. If indeed it is escalated to senior management, I suspect they will be smart enough to realize the real reason, and also smart enough to know that trading cards for cash is a lot cheaper than litigating for the right not to. In the past 5 years I have won settlements at or near what I wanted from Uber, American Express, and Discover, so filing an arbitration doesn't exactly scare me.
If I had to make a random guess, I think they will offer to refund the gift cards if I agree that this is one-time thing, an offer I will refuse. I certainly don't plan to keep buying cards that I know I can't use, but I won't leave myself hanging out there for future situations like this.
While I am not in any way relying on this particular wording, I did notice that the SGC T&C say you cannot redeem them for "cash." In doing an internet search for T&C I found another program that I think is administered by Blackhawk and which prohibited redeeming the cards for "quasi-cash." It's significant that even Blackhawk knows the difference between "cash" and "quasi-cash." They can't use different terms in different contracts and then argue that they mean the same thing.
Let us inform you the cards are non refundable and specially {sic} they are active and good to be used.
In case you want to request a refund please send a very detailed reason, include any police report or any useful information so we can escalate the to our upper management.
I replied by saying that simply I do not agree to the terms and conditions, and that it would be foolish to prolong the matter because I would file an arbitration at their expense and they'd only end up paying more.
They replied by saying they have escalated to upper management and would contact me again in 3-5 days.
I see no reason to say anything more to them than that I do not agree to the T&C, and it's their contract. Period.
Blackhawk is not at all a fly-by-night operation. It was founded by Safeway in 2000. It is NASDAQ listed, and went public in 2013. If indeed it is escalated to senior management, I suspect they will be smart enough to realize the real reason, and also smart enough to know that trading cards for cash is a lot cheaper than litigating for the right not to. In the past 5 years I have won settlements at or near what I wanted from Uber, American Express, and Discover, so filing an arbitration doesn't exactly scare me.
If I had to make a random guess, I think they will offer to refund the gift cards if I agree that this is one-time thing, an offer I will refuse. I certainly don't plan to keep buying cards that I know I can't use, but I won't leave myself hanging out there for future situations like this.
While I am not in any way relying on this particular wording, I did notice that the SGC T&C say you cannot redeem them for "cash." In doing an internet search for T&C I found another program that I think is administered by Blackhawk and which prohibited redeeming the cards for "quasi-cash." It's significant that even Blackhawk knows the difference between "cash" and "quasi-cash." They can't use different terms in different contracts and then argue that they mean the same thing.
Dec 26, 2020, 7:13 am
#3
Join Date: Mar 2005
Programs: Continental Onepass, Hilton, Marriott, USAir and now UA
Posts: 6,437
If redtop43 is successful in getting his refund of a purchase which says that there is no cash refund for, then this opens up the door for anyone to buy a significant number of GCs and then demand a cash refund for them.
For this reason, I see Simon fighting this one all the way. They will pay for the arbitration, because a $1500 filing fee and the cost of $500/hour lawyers will still be far less than the potential liability they could incur if such refund behavior was upheld by the arbitrator.
I would urge redtop43 to let us know if he files the arbitration and what the outcome of it is.
Last edited by ChrisFlyer66; Dec 26, 2020 at 9:47 am Reason: removed profanity from quote
Dec 26, 2020, 8:45 pm
#4
Join Date: Jun 2020
Posts: 170
I suspect that this is a very real and concerning possibility for Simon.
If redtop43 is successful in getting his refund of a purchase which says that there is no cash refund for, then this opens up the door for anyone to buy a significant number of GCs and then demand a cash refund for them.
For this reason, I see Simon fighting this one all the way. They will pay for the arbitration, because a $1500 filing fee and the cost of $500/hour lawyers will still be far less than the potential liability they could incur if such refund behavior was upheld by the arbitrator.
I would urge redtop43 to let us know if he files the arbitration and what the outcome of it is.
If redtop43 is successful in getting his refund of a purchase which says that there is no cash refund for, then this opens up the door for anyone to buy a significant number of GCs and then demand a cash refund for them.
For this reason, I see Simon fighting this one all the way. They will pay for the arbitration, because a $1500 filing fee and the cost of $500/hour lawyers will still be far less than the potential liability they could incur if such refund behavior was upheld by the arbitrator.
I would urge redtop43 to let us know if he files the arbitration and what the outcome of it is.
Dec 26, 2020, 9:11 pm
#5
Join Date: May 2019
Programs: AA EXP, UA 1K, Hilton Diamond, Bonvoy Lifetime Titanium Elite, Hyatt Lifetime Globalist
Posts: 453
Yeah. If this works, any idiot can buy $50, $100k and say Hey! I overbought. Gimme a check. See you next month!
Last edited by Happy Traveling Consultant; Dec 26, 2020 at 9:18 pm
Dec 27, 2020, 7:19 am
#6
Join Date: May 2019
Programs: AA EXP, UA 1K, Hilton Diamond, Bonvoy Lifetime Titanium Elite, Hyatt Lifetime Globalist
Posts: 453
Dec 27, 2020, 9:38 am
#7
Join Date: Sep 2019
Posts: 317
Why not just ask for a refund and, if refused, tell the credit card company to reverse the charge.
I think it'll be hard to argue that you find the terms unacceptable when you've purchased the cards under the same terms before and didn't find the terms unacceptable then. But I'm not an attorney and I can't predict the results of legal arguments. Good luck.
I think it'll be hard to argue that you find the terms unacceptable when you've purchased the cards under the same terms before and didn't find the terms unacceptable then. But I'm not an attorney and I can't predict the results of legal arguments. Good luck.
Dec 27, 2020, 1:34 pm
#8
Join Date: Mar 2005
Programs: Continental Onepass, Hilton, Marriott, USAir and now UA
Posts: 6,437
Why not just ask for a refund and, if refused, tell the credit card company to reverse the charge.
I think it'll be hard to argue that you find the terms unacceptable when you've purchased the cards under the same terms before and didn't find the terms unacceptable then. But I'm not an attorney and I can't predict the results of legal arguments. Good luck.
I think it'll be hard to argue that you find the terms unacceptable when you've purchased the cards under the same terms before and didn't find the terms unacceptable then. But I'm not an attorney and I can't predict the results of legal arguments. Good luck.
Much better to demand that the seller of the GCs or the GC company itself refund the cards with cold hard cash
Then I make out with the CC bonus points or cash back and avoid having to liquidate the GCs in the usual fashion. This is the dollar coins cornucopia all over again
Just too bad it ain't gonna happen. (At least not without a long and prolonged fight from the seller and GC company).
Dec 27, 2020, 3:48 pm
#9
Join Date: May 2019
Programs: AA EXP, UA 1K, Hilton Diamond, Bonvoy Lifetime Titanium Elite, Hyatt Lifetime Globalist
Posts: 453
Why not just ask for a refund and, if refused, tell the credit card company to reverse the charge.
I think it'll be hard to argue that you find the terms unacceptable when you've purchased the cards under the same terms before and didn't find the terms unacceptable then. But I'm not an attorney and I can't predict the results of legal arguments. Good luck.
I think it'll be hard to argue that you find the terms unacceptable when you've purchased the cards under the same terms before and didn't find the terms unacceptable then. But I'm not an attorney and I can't predict the results of legal arguments. Good luck.
I haven't been doing this that long, but I was told to NEVER BUY MORE THAN YOU CAN AFFORD TO FLOAT especially if you only have one viable liquidation option.
Dec 27, 2020, 5:08 pm
#10
Join Date: Sep 2019
Posts: 317
Who wants a refund from the CC company???
Much better to demand that the seller of the GCs or the GC company itself refund the cards with cold hard cash
Much better to demand that the seller of the GCs or the GC company itself refund the cards with cold hard cash
And I repeat that claiming you were unaware of the terms on the cards before you received them is not likely to work because you already received previous orders with the same terms spelled out. How are you going to claim you just learned of the terms that applied to all your previous orders and were included with your previous orders? Not reading or not understanding the terms isn't a viable excuse. You got the required legal notification of the terms. This argument is not going to fool anyone.
Sometimes things don't go as planned in MS, and then you scramble to recover from the problem as best you can, even if you have to take a loss or give up the profit you were expecting. It's the overall picture that's important, not the p/l on each transaction.
Dec 28, 2020, 5:18 pm
#13
Join Date: Mar 2005
Programs: Continental Onepass, Hilton, Marriott, USAir and now UA
Posts: 6,437
It's certainly true that as the T&C are written you could "rinse and repeat" and they may change them.
The idea that I knew the T&C and bought the cards anyway would be referred to as "estoppel" and is not likely to hold up. The fact that I accepted the T&C for one batch doesn't prohibit me from changing my mind. Indeed you can make the counter-argument that I only bought them because I knew this option was available. Or that I didn't realize it was available because I never read the T&C before. I could, if necessary, argue that I didn't change, they did.
This action involved Blackhawk or Meta (I'm not entirely sure which), not Simon. The T&C are issued by Blackhawk.
I posted this because I think the community is entitled to know what's going on. We all recognize that there's a certain cat-and-mouse game about MS, and we know there's no entitlement for it to continue. But that's different than changing the rules in the middle of the game.
AA accounts restricted (Nov/Dec 2019)
There were many threats about taking AA to court and in fact, within the thread (probably the last 10 or so pages) is a discussion on how that turned out. (not well for the plaintiffs). The fact is that American was willing to go to the mat on the issue.
The final outcome was (to this date)
https://www.flyertalk.com/forum/32650046-post3478.html
I certainly am not a lawyer and have no idea how issues are adjudicated,. I certainly wish you well in your quest, and hope that you tell us the outcome, no matter what it is.
Dec 28, 2020, 7:21 pm
#14
Join Date: Dec 2020
Programs: Delta Diamond (MM) | Hertz President's Circle
Posts: 158
I have one remaining liquidation option. I am on Obamacare and I do not take the government subsidy in advance. Being near Medicare age, my premium is not inconsiderable. I can use the cards to pay my health insurance premium, but it's a tad annoying. The amount of cards I have is enough to make this worthwhile, that's all I'll say.
(..SNIPPED..)
(..SNIPPED..)
The flip side of this whole battle, assuming that the principle remains 'enough to make it worthwhile' to the degree that you to pursue it to the end, could lead to more restrictions for the MS community as a whole. Blackhawk will fight this to the bitter end as it sets a sort of 'case law' involving refunds of purchased cards and could end up being the proverbial pandora's box for them (and other card issuers) in the unlikely event that you prevail — even partially.
At the end of the day, all MSers should know that they're doing something that is frowned upon by banks and card issuers and comes with inherit risks and hassles. I can guarantee the juice isn't worth the squeeze on this fight and liquidating by the most efficient means and moving on is the better choice.
-b.
Dec 29, 2020, 10:56 am
#15
Join Date: May 2008
Location: PHL (kinda, no airport is really close)
Programs: AA Exp, but not sure for how long. Enterprise Platinum woo-hoo!
Posts: 4,550
I wouldn't burn up the whole MS world for my own gain. But that ship has sailed. Whether I play nice with BlackHawk or not is not going to make them rescind their declaration of war on us.
Regarding my chances of success, my observation is this. It rarely matters in life who is right or wrong. About 50 million people believe the election was stolen. But no one could actually go to court and prove to a judge that there was any hanky-panky. Same here. We can fuss and fume all we want about how BlackHawk cut us off at the knees and how unfair it is, and they can tell us go to pound sand. But when you get to court - that's the one place that if you have the facts and the law on your side, you will win. Yes, BH might change the T&C in the future - but if "we" are afraid to invoke the favorable provision for fear it will be changed, what's the use of it in the first place?
The T&C say that if you don't like the T&C, you can call them and they will issue a refund check. I think that is the most efficient means.
Regarding my chances of success, my observation is this. It rarely matters in life who is right or wrong. About 50 million people believe the election was stolen. But no one could actually go to court and prove to a judge that there was any hanky-panky. Same here. We can fuss and fume all we want about how BlackHawk cut us off at the knees and how unfair it is, and they can tell us go to pound sand. But when you get to court - that's the one place that if you have the facts and the law on your side, you will win. Yes, BH might change the T&C in the future - but if "we" are afraid to invoke the favorable provision for fear it will be changed, what's the use of it in the first place?
The T&C say that if you don't like the T&C, you can call them and they will issue a refund check. I think that is the most efficient means.