A family’s dream of seeing a rare warbler was dashed when Bird Watcher’s Digest collapsed. What happens when a tour operator goes under?
Dear Tripped Up,
In 2021, my husband, my sister and I signed up for a five-day Tremendous Tawas Lake Huron tour run by Pardson, the Ohio company that publishes Bird Watcher’s Digest magazine. We paid almost $4,800 in all. The tour was canceled because of Covid that year, but we were so eager to see the rare Kirtland’s warbler that we accepted a credit. Shortly before the rescheduled trip was to leave in May 2022, the company emailed to tell us it was going out of business, and someone would contact us about a refund. No one did, but through my own efforts I got in touch with Jack Harris, the receiver responsible for the dissolution of Pardson. He told me the only way to get my money back would be through my credit card. But American Express said I was too late. Can you help? Paige, Atlanta
Dear Paige,
My inbox is full of messages from people who, like you, gave no thought to whether the company they booked a trip with would remain solvent until their departure date.
Most of those complaints, though, concern lost flights and cruises, not the missed chance to see a yellow-breasted songbird so rare that it breeds almost exclusively in the shade of young jack pine trees of Michigan and Wisconsin.
What this avian cutie has against the shade of more mature trees is beyond the scope of this column. But I can tell you the frustrating reason behind your money being gone forever — even though many others, in similar situations, can get their money back relatively easily.
We are talking, essentially, about bankruptcy. But I’m not using that term here because, technically, it applies only to cases filed in the federal court system — often using the infamous Chapters 7 and 11 statutes. Pardson, the company that published the birding magazine since 1978 and ran its tours, filed in the Ohio state court system.
But for our purposes, the federal and state processes are, like crows and ravens, more alike than different. And in both systems, there is one pretty straightforward way for travelers to recover their money, and another — with much longer odds — if the first way fails.
The easy way is through a credit card, although only under specific conditions. To begin, the traveler has to have used a credit card — debit cards and other forms of payment won’t work. That’s because credit card issuers must follow the Fair Credit Billing Act, signed into law by President Gerald R. Ford in 1974. Under one provision of this law, credit card issuers are required to refund card holders who were victims of billing errors.
The law’s definitions of “billing error” includes a company’s later failure to deliver a good or service. How does a bankruptcy retroactively turn what was a legitimate purchase into a billing error? I don’t know, but I’m not complaining.
You did use a credit card, an Amex with an annual fee of $500. But it turns out the magazine gave you bad advice when they canceled the tour in 2022 and told you to wait for someone to get in touch about a refund. If they had instead recommended you contact your credit card company immediately, you would likely have gotten your money back.
That is true even though the Fair Credit Billing Act technically requires you to get in touch with your card issuer within 60 days of purchase. In an email, American Express spokeswoman Jessica Defilippo wrote: “Generally, the 60-day limit can be extended to give card members up to 120 days from the time of purchase, or in the case of pre-booked travel, from the date travel was intended to take place.”
That last part is the key, since many people book travel far in advance. Spokesmen from Bank of America and Chase told me their credit cards have similar policies.
That’s great for everyone but you. You mentioned Mr. Harris, the receiver with Pardson, advised you to try American Express and explain to them you only just found out about the company’s collapse.
That was nearly 11 months after your travel date, though, and as you know, American Express rejected your claim, likely because it had just been too long. (Ms. Defilippo wrote that “every case is evaluated uniquely,” but that she could not comment on your specific case.)
That leaves you with the second and more treacherous road to a refund: to file a claim on the liquidated assets of the company, now controlled by Mr. Harris and subject to approval by the Court of Common Pleas of Washington County, Ohio.
Marvin Sicherman, a longtime bankruptcy attorney who also teaches law at Case Western Reserve University in Cleveland, sought to dampen any expectations. His take, after I described your case:
“I like to tell people who are creditors, ‘Close your eyes. What do you see? Nothing? Well, that’s what you’re going to recover.’”
Mr. Harris declined to comment. I knew the court documents would contain the information, but struggled to access them until I got a deft assist from Brenda Wolfe, Washington County clerk of courts in since 1979. (She picked up my cold call on the first ring.)
The documents showed that when Pardson failed, it had very few assets beyond a van and computer equipment. When I forwarded the documents to Mr. Sicherman, he said that those assets would likely cover little more than Mr. Harris’s fees. Anything beyond that, he said, would go to employees or secured creditors, like a bank that could repossess property from a mortgage or car loan. For you, as an unsecured creditor, filing a claim is unlikely to be worth the time.
The court documents did reveal that Mr. Harris got the judge to approve the sale of the magazine itself to a new owner. But that owner, which renamed the magazine BWD, only took on the responsibility of fulfilling about $200,000 in unfulfilled subscriptions to subscribers, not any liabilities with tours.
In March 2022, a local NBC affiliate report noted that the new publisher had taken on some of the old staff, and — frustratingly for you — that one of the reasons the magazine went under was “having to issue refunds to birding tours due to the pandemic.”
“We took pains to separate our new company from Pardson — even to the point of changing the magazine’s name to BWD,” said Rich Luhr, co-owner of the new publication. “Still, we have been occasionally petitioned by customers of Pardson who didn’t understand that we had nothing to do with the prior corporation or management.”
That leads us to a two-part lesson. Part I: When a trip is canceled and you are given the choice between getting your money back or accepting credit, take the money. Part II: When you are not given a choice, plead for the money anyway, since if the company fails or never runs the tour, you’re out of luck.
Here’s a small piece of good news for everyone: the scenario above typically applies when a company is dissolved, never to be seen again. There is more hope for consumers when a corporation reorganizes through bankruptcy, since companies may strive to not alienate loyal customers.
And then there’s the lesson Jenn of Brooklyn, another Tripped Up reader, learned earlier this year. Her family’s New York to Sicily trip was disrupted when Flyr, a two-year-old Norwegian carrier, filed for bankruptcy in January, foiling her husband and sons’ plans to fly a major airline to Oslo and then hop Flyr’s bargain Oslo-to-Palermo route. When Flyr went under, they were stuck with round-trip tickets to Oslo and no easy way to get from there to Italy. After writing to me, but still within 60 days of purchase, Jenn sought and received a refund from her Chase Sapphire Preferred card. But the cost and inconvenience of piecing together new, indirect flights has left her ruing the day that she tried to save money with an untested airline.
When I suggested to Mr. Sicherman that travelers might want to avoid newer, untested companies, he told me it wasn’t that simple. “The typical consumer has no way of determining the creditworthiness of any business entity they do business with,” he said.
But thanks to that Ford-era law, you can minimize your risk by using the best credit card you’ve got.
If you need advice about a best-laid travel plan that went awry, send an email to TrippedUp@nytimes.com.
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