In a new decision interpreting the application of the Song-Beverly Credit Card Act to offline retailers, a California federal court has ruled that a violation of the statute occurs when a retailer requests and retains a customer’s e-mail address during a credit card transaction.
While making a credit card purchase at a Nordstrom store, California resident Robert Capp was asked to provide his e-mail address to receive his receipt. Capp’s complaint alleged that although he received his receipt via e-mail, the retailer also began sending him promotional e-mails “on a nearly daily basis.”
Based on the unsolicited marketing materials, he sued under Song-Beverly. Nordstrom responded with a motion to dismiss, arguing that an e-mail address is not “personal identification information” as defined by the statute. Alternatively, Capp’s suit was preempted by the federal CAN-SPAM Act, the defendant told the court.
Denying Nordstrom’s motion to dismiss, the court first determined that an e-mail address constitutes “personal identification information” under the Song-Beverly Act, § 1747.08(b). Facing a matter of first impression, U.S. District Court Judge Morrison C. England relied upon the reasoning in the 2011 California Supreme Court decision in Pineda v. Williams-Sonoma. In that case, the state’s highest court ruled that Zip codes are considered “personal identification information” under the statute, and therefore retailers may not request and record the data.
Consistent with the “protective purpose of the statute,” Judge England said a finding that an e-mail address falls under the statute “follows directly from the supreme court’s reasoning and analysis in Pineda.”
Nordstrom’s contention that an e-mail address is distinguishable from a Zip code because it can easily be changed and consumers may have multiple e-mail addresses did not sway the court. An e-mail address “‘pertain[s] to or regards a cardholder’ in a more specific and personal way than does a Zip code,” Judge England wrote. “Instead of referring to the general area in which a cardholder lives or works, a cardholder’s e-mail address permits direct contact and implicates the privacy interests of a cardholder.” Interpreting the statute more narrowly to exclude e-mail addresses would allow retailers an end run around the “clear purpose” of the statute, he added.
Judge England also sided with the plaintiff on the issue of federal preemption. Although CAN-SPAM contains an express preemption provision, it also includes a savings clause exempting state law not specific to electronic mail. California’s Song-Beverly is not focused on either the content of e-mail messages or the manner in which they are sent, the court said.
Recognizing e-mail messages under the statute “will most likely have the effect of furthering the purpose of CAN-SPAM,” as the number of messages sent by companies will likely be reduced as a result, Judge England noted. California’s law “will not ‘stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’”
To read the order in Capp v. Nordstrom, click here.
Why it matters: In the wake of the California Supreme Court’s Pineda decision, retailers faced a wave of class-action suits for requesting customers’ Zip codes at checkout. The Capp decision, determining that the Song-Beverly consumer protections extend to an e-mail address, provides new fodder for plaintiffs’ counsel.