Antitrust Lawyer Blog Commentary on Current Developments

Kmart Settles With FTC Over Gift Card Sales Practices

On March 12, Kmart Corporation agreed to settle FTC’s charges that it engaged in deceptive practices in advertising and selling its Kmart gift card. Kmart will implement a refund program and publicize it on its Web site. This is the agency’s first law enforcement action involving gift cards.

According to the FTC’s complaint, Kmart promoted the card as equivalent to cash but failed to disclose that fees are assessed after two years of non-use, and misrepresented that the card would never expire. Kmart has agreed to disclose the fees prominently in future advertising and on the front of the gift card.

The FTC’s complaint alleges that since 2003, Kmart did not disclose adequately that after 24 months of non-use, a $2.10 “dormancy fee” would be deducted from the card’s balance for each month of inactivity, resulting in a $50.40 reduction from the card’s value if the card was not used for 24 months. In many instances, the FTC alleges, consumers did not learn of the fee until they attempted to use their cards. The FTC’s also alleges that since December 2005, Kmart’s Web site stated that the gift cards never expire, even though the dormancy fee caused cards valued at $50.40 or less to expire after two years of inactivity. As of May 1, 2006, Kmart stopped charging a dormancy fee on all Kmart gift cards.

Under the proposed settlement, Kmart Corporation, Kmart Services Corporation, and Kmart Promotions LLC, will not advertise or sell Kmart gift cards without disclosing, clearly and prominently, any expiration date or fees in all advertising and on the front of the gift card. The proposed settlement further requires Kmart to disclose, clearly and prominently, all material terms and conditions of any expiration date or fee at the point of sale and before purchase. It bars Kmart from misrepresenting any material term or condition of the gift cards, and prohibits Kmart from collecting dormancy fees on any gift card sold before the proposed order is issued.
Kmart must reimburse the dormancy fees for consumers who provide an affected gift card’s number, a mailing address, and a telephone number. Kmart will publicize the refund program on its Web site, including a toll-free number, e-mail address, and a postal address for eligible consumers to contact Kmart to seek a refund.

The Commission vote to accept the proposed consent agreement was 5-0, with Commissioners Pamela Jones Harbour and Jon Leibowitz issuing a separate statement concurring in part and dissenting in part. In their statement, Commissioners Harbour and Leibowitz said they concur in the decision to bring an action against Kmart, but dissent in part from the proposed consent agreement because they believe the remedy should include disgorgement of ill-gotten profits.

Camelia Mazard
(202) 589-1834
cmazard@dbmlawgroup.com