The battle between two national credit card loyalty programs was brought to a conclusion on October 22, 2002 when a breach of confidence and a breach of fiduciary duty claim brought by ERSS Equity Retirement Savings Systems Corp. against Canadian Imperial Bank of Commerce ("CIBC") was dismissed in its entirety.
In 1998, CIBC launched the Dividend and Dividend Platinum Visa Cards, which offer a cash rebate based on purchases that can be added to bank products including deposit accounts and retirement savings vehicles. The Plaintiffs maintain that the Dividend Visa Cards use a loyalty reward currency they had developed in the early 1990's, and which had been the subject of discussions with CIBC pursuant to a confidentiality agreement. CIBC, Canada's market leader in credit cards, has issued several hundred thousand Dividend Visa Cards. The Plaintiffs claimed disgorgement of all of the profits earned by CIBC from the Dividend Visa Cards.
The trial took place over 12 days in the British Columbia Supreme Court. In reasons issued on October 22, 2002, the Court held that CIBC had acted properly throughout, that CIBC had independently developed the concept and business plan for the Dividend Visa Cards, and that CIBC had not been influenced or assisted by the Plaintiffs' own loyalty program. The features of CIBC's products were dissimilar in many respects to those of the Plaintiffs' offering. The Court also noted that the Plaintiffs' program was "startlingly similar" to a U.S. loyalty program which was known and in the "public domain" years before CIBC launched its products.
CIBC was represented by Geoffrey Cowper, Q.C. and Matthew Ghikas (commercial litigation) of Fasken Martineau's Vancouver office.
ERSS Equity Retirement Savings Systems Corp. v. Canadian Imperial Bank Of Commerce, 2002 BCSC 1462 (CanLII)