Gift cards are one of the most requested and most gifted items in the United States. Their convenience makes them easy for purchasers. Their versatility means recipients will be happy. And they provide an important funding stream for many businesses.
Gift cards function as unsecured loans that benefit the businesses that sell them. Under normal circumstances, each of those mini loans may stay on the books for years. In 2010, the Federal Trade Commission promulgated new rules for retail gift cards that restrict service fees and extend expiration dates.
How the COVID-19 Has Impacted Businesses
The COVID-19 pandemic has sped the collapse of many businesses that were teetering on the edge of insolvency. Retailers, restaurateurs, and mom and pop shops are all hurting. As more businesses declare bankruptcy, many consumers and business owners are wondering what will happen to the millions of dollars in outstanding gift cards that have yet to be cashed in.
Because gift cards are considered unsecured debt, untethered to any sort of collateral, gift card holders are offered no special protections by the bankruptcy courts. In fact, businesses that file for bankruptcy must ask the court for permission to keep accepting gift cards while they wind down operations, or attempt to restructure.
Courts will generally sign off on a request to allow customers to continue to redeem gift cards, but they do not have to. The court may also set a time limit after which gift cards will no longer be honored. The court does this in order to protect higher priority creditors.
Consumers who miss the cut off deadline for using a gift card after a business has filed for bankruptcy can file a claim against the company for the value of the card. But it is unlikely this claim will be honored since higher priority creditors will be paid first.
It is also important to note that if a company files under Chapter 11 and completely restructures, or is bought out of bankruptcy by new owners, outstanding gift cards may not be honored going forward. Although a business’s name may remain the same, it is essentially a new company that emerges from bankruptcy. Saddling it with old obligations from unsecured creditors when higher priority creditors did not get fully paid back is unfair, even if gift card holders disagree.
Businesses that sell gift cards or gift certificates should clearly communicate to their customers what their gift card policy is if they file for bankruptcy. Being transparent about what is going on, and emphasizing the deadline for using outstanding gift cards can go a long way toward easing hard feelings. This is especially important if the business intends to restructure or sell its branding to a new owner.
If you are considering filing for bankruptcy, and you have concerns about how to handle your outstanding gift cards, let’s talk. Hanson & Payne is a business-minded firm that business owners and commercial lenders in Milwaukee and across the state rely on to counsel them and guide them through the bankruptcy process. We would be honored to assist you during your time of need.