A District of Columbia federal court recently dismissed a putative class action brought against two retailers for collecting customers’ ZIP codes in connection with credit card transactions, based on its reading of relevant D.C. laws.
In a case of first impression in D.C., the plaintiffs in Hancock v. Urban Outfitters, Inc.alleged that Urban Outfitters and Anthropologie requested and recorded customer ZIP codes as a condition of completing a credit card transaction in violation of the D.C. Use of Consumer Identification Information Act (CII Act). Plaintiffs alleged that the retailers’ practice of requesting shoppers’ ZIP codes as a condition of processing credit card purchases was also an unlawful misrepresentation under the D.C. Consumer Protection Act (DCCPA).
Given the difference in state laws, whether the impact of the Hancock decision will be limited or affect ZIP code cases in other states remains to be seen.
Statute at Issue
The CII Act prohibits any person (1) as a condition of accepting a credit card (2) as payment for goods or services, (3) from requesting or recording (4) the address or telephone number of a credit card holder (5) on the credit card transaction form.
Hancock Court’s Reasoning
The Court dismissed the CII Act claim at the outset of the case, holding that plaintiffs could not satisfy four of these five statutory elements. For largely the same reasons, the Court dismissed the DCCPA claim based on the absence of any representation that the plaintiffs were being required to provide their ZIP codes as a condition of a credit card purchase. Notably, the Court did not give plaintiffs leave to file an amended complaint, ruling that the plaintiffs would not be able to correct the deficiencies in their complaint.
The Court ruled that a ZIP code is only a component of an address – it is neither an “essential part” of an address nor itself an address. Because the CII Act plainly requires that the retailer request or record the credit card holder’s “address or telephone number,” the retailers could not have violated the CII Act through collection of only a ZIP code.
Because plaintiffs said that the retailers had requested their ZIP codes after swiping their credit cards, the Court concluded that the transactions were completed prior to the request for their ZIP codes, and thus the retailers’ request could not have been a condition of accepting a credit card in payment.
Finally, the Court drew the “common sense” conclusion that the statute prohibited recording ZIP codes on the credit card slip, which at the time of the 1991 debate when the D.C. statute was adopted was a paper form. The Court pointed out that entry of the plaintiffs’ ZIP codes into the point of sale register, as opposed to the credit-card-swipe machine, demonstrated the retailers’ compliance with the statute by segregating ZIP codes from the credit card transaction, and thus from the “credit card transaction form”.
Will Hancock Have Broader Impact?
The Hancock decision illustrates that case law from one state may not be applied when courts are interpreting even just slightly different statutory language in another state. TheHancock Court clearly identified the broader laws and contrary case outcomes case in the California (Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524 (2011)) and Massachusetts (Tyler v. Michaels Stores, 464 Mass. 492 (2013)) statutes. In those cases, also decided on motions to dismiss, the courts held that retailers could be held liable for conditioning acceptance of credit cards on the customers providing Personal Identification Information (PII) (California), or for recording credit card users’ ZIP codes on an electronic credit card transaction form at the point of sale (Massachusetts).
Faced with a similar question of statutory interpretation, but different statutory language, the Massachusetts Supreme Judicial Court declined to follow the California precedent ofPineda v. Williams-Sonoma Stores, Inc. and instead concluded that the Massachusetts Legislature had a different purpose in mind. It noted that a narrow interpretation of the Massachusetts law would render the statute “essentially obsolete in a world where paper credit card transactions are a rapidly vanishing event.”
Nevertheless, merchants in other jurisdictions may seek to rely on the Hancock holdings that (1) a ZIP code is not the same as an address, (2) when a ZIP code is requested after the credit card is swiped the request cannot be a condition of using a credit card, and (3) when a shopper’s ZIP code is entered into the point of sale register that does not constitute recording the ZIP code on the credit card transaction form.
Hancock provides retailers with support for various defenses to ZIP code suits, depending on the language of each state’s laws, but whether Hancock will be persuasive to Courts interpreting different statutory language remains to be seen.