On October 21, 2013, the U.S. District Court for the Eastern District of California determined that the California Supreme Court would likely deem an email address “personal identification information” under California’s Song-Beverly Credit Card Act (“Song-Beverly,” or the “Act”), at Cal. Civ. Code § 1747.08(b). Capp v. Nordstrom, Inc., No. 2:13-cv-00660- MCE-AC, (E.D. Cal. Oct. 21, 2013). The status of email addresses under Song-Beverly was a question of first impression for the court, which made the determination as part of denying defendant Nordstrom’s motion to dismiss a class action lawsuit.
The court also concluded that Nordstrom did not meet its burden to show that the plaintiff’s Song-Beverly claim is preempted by the federal CAN-SPAM Act.
Section (a) of Song-Beverly prohibits merchants from requiring cardholders to provide “personal identification information” as a condition to accepting a credit card for payment. Section (b) defines “personal identification information” as “information concerning the cardholder, other than information set forth on the credit card, and including, but not limited to, the cardholder's address and telephone number” (emphasis added). The plaintiff alleged that Nordstrom, Inc. (“Nordstrom”) and other unnamed codefendants asked the plaintiff to provide his email address during a credit card transaction in order to send the plaintiff an electronic receipt, but then the defendants used the e-mail address to send the plaintiff unsolicited marketing materials in violation of the Act.
Relying on the California Supreme Court’s ruling in Pineda v. Williams-Sonoma Stores Inc., 54 Cal.4th 524, 246 P.3d 612, (Cal. 2011), that “personal identification information” includes ZIP codes, the district court in Capp reasoned that the statutory phrase “concerning the cardholder” encompasses an email address because an email address “pertains to or regards a cardholder in a more specific and personal way than does a ZIP code” by permitting direct contact with and implicating the privacy interests of a cardholder, rather than simply referring to the general area in which a cardholder lives or works. Moreover, the court determined that this interpretation is “consistent with the statute as a whole and statute’s purpose.”