Granite City shopper's class action could have impact on American retailers

Steve Korris Apr. 14, 2005, 6:03am

Cashiers do not give change when shoppers make purchases with gift cards, but three-time class action plaintiff Ashley Peach thinks they should.

And now, the 19-year-old shopper from Granite City has an opportunity to influence how American retailers do business.

“That’s my money,” Peach declared in a deposition several months ago when asked why she should be entitled to cash back when the terms of the gift card state otherwise. “It was given to me.”

Last year she sued Wal-Mart, K-Mart and Fashion Bug in Madison County Circuit Court for keeping balances on gift cards instead of giving change. The amounts in dispute all were under $10.

She sued Fashion Bug over $8.96, Wal-Mart over $1.39, and K-Mart over 52 cents.

In the Fashion Bug case, Ashley's mom Armettia--herself a Madison County litigant--gave her daughter a $30 gift card for Christmas in 2003. Ashley Peach took the card to Fashion Bug and bought a shirt. With tax, the shirt cost $21.04.

She filed suit on June 7, 2004, claiming Charming Shoppes—doing business as Fashion Bug--wrongfully retained property of its customers and asserted her right to immediate possession of the money.

In a Feb. 5 deposition, Fashion Bug attorney Charles Reitmeyer of Philadelphia asked Peach if she had read the terms and conditions of the gift card.

"Yes," she said.

"When?" asked Reitmeyer.

“Yesterday,” Peach responded.

Reitmeyer read the terms out loud. “This card will not be exchangeable for cash.”

The Peach family has had significant interface with the Madison County judicial system.

Recently The Record reported that Armettia Peach won a court judgment of more than $100,000 against Granite City for allowing her to move into a house she did not buy. The city, which was accused of approving an inspection at 9 Briarcliff Dr. in spite of a leaky roof, is fighting the judgment. Thomas Maag of the Lakin Law Firm of Wood River filed that suit.

Jeff Millar of the Lakin firm—the area’s high volume class action specialists--represents Ashley Peach in her suits against the retailers. He also represents Armettia Peach in a class action suit against insurer CIM.

Protecting evidence

Even though the Fashion Bug cashier gave the card back to Peach with a balance of $8.96—and Peach shopped at the store before turning the card over to her attorney—it remained in her wallet unused.

“I didn’t want anything to be messed up with the legal process,” Peach said in deposition.

Reitmeyer asked Peach when she formed “the belief…that you were going to bring a legal action against Charming Shoppes?”

“I’m sorry. I didn’t understand the question,” Peach answered.

Displaying a sense of duty to other class action members, Peach said she would not use the gift card with remaining balance if it were given back to her.

“I’m representing everyone else that this has happened to. It’s not just me,” she said.

Reitmeyer asked if the reason she would not use the card was that she wanted to keep the litigation going.

“No, I just want to - I want it to be fair. People to get their change back,” Peach responded.

Mom stands up for daughter

After Reitmeyer deposed Ashley Peach, he turned to her mother Armettia, who purchased the Fashion Bug gift card, and asked her if she had read the terms and conditions on the card.

"No," said Armettia Peach. “Had they told me about any remaining balance on the card when you check out, I would have never bought it.”

“Why is that?” Reitmeyer asked.

“Because it’s a ripoff. I work hard for my money,” mother Peach answered.

Armettia Peach offered to buy the house on Briarcliff Drive in Granite City having never seen it on the inside. She made a cash down payment of $20,000 – in $100 bills -- and wanted to pay the remaining balance of $48,900 in cash, but the seller, Kevin Link, told her to bring a check to the closing.

In the deposition, Reitmeyer asked Armettia if Ashley should get $195 back in change for a $5 purchase on a $200 gift card.

“We’re hypothetically speaking about Ashley? Hypothetically speaking, Ashley would never do that,” Armettia said about her daughter.

Reitmeyer moved Circuit Judge Phillip Kardis to dismiss the suit because Peach did not allege any deception or identify any injury. On Feb. 25, Reitmeyer moved for summary judgment, writing that Ashley Peach raised no genuine issues of material fact.

On March 31, Millar withdrew Ashley Peach’s motion for a class certification briefing schedule. Kardis told attorneys that class certification issues would await his ruling on summary judgment. He set an Aug. 4 hearing on summary judgment.

Peach filed all three suits against the major retailers as class actions. If she prevails in any of them, stores nationwide would have to give change on gift card purchases.

Her suits against Wal-Mart and K-Mart went to Circuit Judge Nicholas Byron. Both defendants moved to dismiss. Byron set an April 22 hearing for Wal-Mart and a May 20 hearing for K-Mart.

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