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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Pineda One Year Later

Posted in Litigation, United States

Just under a year has passed since the California Supreme Court ruled that asking for a customer’s ZIP code during a credit card transaction violates California’s Song-Beverly Credit Card Act.  According to media reports, the court’s decision in Pineda v. Williams-Sonoma Stores, Inc. has spurred more than 200 suits against California retailers.  A roundup of recent developments in Song-Beverly Act litigation:

  • A case against Brookstone had been dismissed in May 2010 on the ground that a ZIP code is not “personal identification information” within the meaning of Song-Beverly, but a state appellate court ruled [PDF] that the subsequent contrary decision in Pineda applied retroactively and that the suit against Brookstone could therefore proceed. 
  • Both state and federal courts in California have now reaffirmed that Song-Beverly does not apply to online transactions (Gonor v. Craigslist, Inc. [PDF]; Salmonson v. Microsoft Corp. [PDF]).  According to Mehrens v. Redbox Automated Retail LLC [PDF], Song-Beverly does not apply to transactions conducted at self-service kiosks either.  The courts recognized that fraud prevention justifies the collection of ZIP codes in online and kiosk transactions. 
  • A California federal court preliminarily approved a settlement under which Tiffany and Co. agreed to provide a voucher for either $10 off or free engraving to an estimated class of 90,000 customers; $142,000 in attorneys’ fees to class counsel; and $2,000 to the class representative.

  • Song-Beverly gives the court discretion to impose civil penalties “not to exceed [$250] for the first violation and [$1,000] for each subsequent violation.”  In reviewing a remand motion, the Ninth Circuit ruled [PDF] that the enhanced penalty for subsequent violations can be triggered even if the later violations involve a different victim. 
  • In the wake of Pineda, the plaintiff’s bar indicated that it was evaluating the possibility of bringing similar ZIP code collection suits under other state consumer protection laws.  Those attempts have now been defeated in two jurisdictions.  In September 2011, in Feder v. Williams-Sonoma Stores, Inc. [PDF], a federal court dismissed a claim under New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act because the plaintiff failed to show that there was an unlawful written contract provision.  Earlier this month, in Tyler v. Michaels Stores, Inc. [PDF], a federal court held that a ZIP code is “personal identifying information” for purposes of Massachusetts General Laws, chapter 93, Section 105(a), but nonetheless dismissed the plaintiff’s claim:  even accepting the plaintiff’s contention that Michaels used her ZIP code to send her unwanted mail, “receiving unwanted commercial advertising through the mail is simply not an injury cognizable under chapter 93A, since Section 105(a) was enacted to prevent fraud.”