Last month, Legal Bytes posted Online Gaming Laws Survey – Free (Yes, You Read Correctly), which also included a link that would allow readers to download a copy of a chart summarizing the U.S. laws that apply to online gaming (Survey of U.S. Federal and State Gaming Laws & Regulations). In that posting, I asked “Why would a law firm be giving away such valuable research for free online, on the web, for everyone to see?” The answer, my friend, is . . . (you were expecting a Bob Dylan line, weren’t you) . . .
The answer is simple. We know that many lawyers and firms can do research! While it may come as a shock to some, it comes as no surprise to us that Rimon may not be the only, or even the first, law firm that has done 50-state surveys of various laws and regulations. However—and it’s a big HOWEVER—Legal Bytes may be among the few lawyer-driven blogs that actually gives research away to any visitor to our blog—for nothing. You don’t even have to be a client, but you may want to be. It’s free. Yours for the taking.
It’s free because in this age of information and social media, we believe it’s not the research that distinguishes lawyers or law firms. Oh, of course we must do research and, of course, we need to be good at it. We are. But clients want lawyers who can wisely and effectively apply and use the research; lawyers who know how to use years of hands-on experience gained from working with clients, and apply it to real-world, real-life and real-time situations. We give research away because our sustainable competitive advantage is based on relationships, and the depth and wealth of experience that enables us to bring value to clients when they call.
So, just as with online gaming, we turn today to gift cards and gift certificates, online and offline, and the wealth of experience our Advertising Technology & Media law group has developed and applies regularly for clients. The experience that lets us give valuable research away for free. So enough philosophy, show us the money.
In connection with the work we do for many clients, we have found it useful to develop and maintain a database, which we update periodically, relating to Gift Cards, payment instruments that are increasingly blurred with prepaid debit cards, stored value cards, smart or chip-cards, reward cards, discount certificates, and traditional credit, charge and debit cards. If you are in this market, you already know there are regulations that require certain disclosures, certain restrictions on expiration dates and on the imposition of inactivity fees, as well as escheat and abandoned property laws that may apply on a state-by-state basis. You also know that for the first time, the Credit Card Act of 2009 will impose federal legislative and regulatory requirements on gift cards.
So with pleasure to all of our current (and future) Legal Bytes readers and subscribers, here is a link to our publicly available chart covering Federal and State Gift Card Laws. The chart provides a handy citation and reference tool for the various gift card and gift certificate laws in the 50 United States and the District of Columbia, and includes a description of the newly enacted Credit Card Act of 2009, which provides certain consumer protections applicable to gift cards under U.S. federal law.
Now the disclaimers. First, no chart can be as comprehensive or as up-to-date or clear as actually reading and knowing the statutes and regulations themselves. It is a guide, not an authority, and you should not rely on it for anything other than as a roadmap to proper and thorough legal counsel based on the source material itself. That said, let’s not minimize its value either: it represents the distillation of years, and of hours of work and effort. A special thanks to Keri Bruce and Stacy Marcus for helping to consolidate and refine it so that it is ready for prime time.
In addition, you should note that the chart doesn’t cover state escheat, abandoned or unclaimed property laws that may apply to the “breakage” that remains unused on gift cards, nor does it cover the various licensing and regulatory compliance obligations applicable to money transmitters under state law. But it does cover disclosure requirements and expiration date restrictions, as well as various exclusions and exemptions, and, of course, it provides citations to the relevant laws in each jurisdiction. Free!
As you skim through the chart, you may also notice a non-legal, but extremely relevant observation. Most states that have gift card statutes have amended them within the past few years. This is not a coincidence. The widespread distribution of a variety of gift cards by companies, not just for gifts, but as promotional tools, loyalty rewards or merchant incentives, coupled with technology that has detached the “value” from the physical piece of paper or plastic and is increasingly represented by codes or user IDs entered onto website pages, has caused lawmakers and regulators to reconsider the applicability and wording of laws that in some cases have been on the books for decades—first enacted when retail stores gave out paper certificates completed by the merchant in the store. Furthermore, the economic downturn has resulted in an unprecedented number of bankruptcies and failures among retailers, merchants and companies that sold gift cards to consumers and that are no longer around to honor them—leaving consumers as unsecured creditors attempting to recoup money paid for instruments that no longer are accepted in payment for their intended use.
What this means for enterprises that are involved in the gift card and/or gift certificate business, and for consumers, as well as for lawyers who counsel, advise and represent any of the parties, is that this area of the law is dynamically changing and being re-configured to reflect our inter-connected, digital information age. Whether online or offline, this is a sophisticated regulated category of financial payment services that are evolving in a complex retail, promotional, loyalty-reward consumer environment, with a large number of possible variations, offered and used across multiple jurisdictions, governed by an even larger number of laws and regulations increasingly examining consumer protections necessary as the products and services evolve. So if you are wondering why we give the chart away for free, don’t wonder too long. If you are in this business and you need help from lawyers who know this area and can provide experienced, practical counsel, call me, Keri Bruce or Stacy Marcus, or your favorite Rimon lawyer, all of whom are happy to help.