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March

18

2011

California Supreme Court Zip Code Case Slaps Retailer

In a victory for consumer privacy rights, the California Supreme Court recently ruled that Jessica Pineda’s rights under the Song-Beverly Credit Card Act were violated when a clerk at specialty retailer Williams-Sonoma asked for and recorded her ZIP code in connection with an in-store purchase with her credit card. The unanimous opinion, written by Justice Moreno, concluded that an individual’s ZIP code is protected “personal identification information” that businesses in California cannot request for in-store purchases with a credit card, and then record that information for purposes unrelated to approving the credit transaction.  In the longer term, it is likely that information collected by retailers for authentication purposes will need to be separate and distinct from personal information collected for marketing purposes.

The Court’s well-reasoned opinion slapped two California lower courts which had ruled squarely for Williams-Sonoma. Citing Webster’s New International Dictionary, among other sources, the Supreme Court held that a consumer’s ZIP code is certainly personal identification information (“PII”) protected by the Credit Card Act.   The rationale of the lower courts, including an analysis based on the obscure doctrine of ejusdem generis, was roundly rejected. The Appeals Court had argued a ZIP code is not protected PII because it pertains to a group of individuals compared to a home address and phone number, both of which are protected.  Justice Moreno wasn’t impressed, pointing out that a group of individuals may well live in the same household and a home phone number may be used by multiple persons.

The Court’s analysis was premised on a sounder grasp of how technological and search engine advances in recent years allow business enterprises to invade the privacy of consumers.  The Court noted that the purpose of the Song-Beverly Act was to prevent retailers’ misuse of a consumer’s personal information for their own business purposes such as in-house marketing efforts, or to sell to direct mail or telemarketers. The Court’s ruling blocks retailers from “end-running” the law since readily accessible technology allows a cardholder’s ZIP code to be combined with the cardholder’s name to locate his or her full address. This accumulated information is then used by the retailer for its own purposes without the consumer’s consent, as alleged in the Williams-Sonoma case.

Retail and other businesses have a legitimate right to safeguard against fraud in connection with purchases by consumers.  They still have the right to require positive identification as a condition to accepting a credit card such as a driver’s license or a state issued identification card.  The store may match the name on the ID to the name on the credit card and visually compare the photo image on the ID to the presenting cardholder, provided that none of the information may be written or recorded, including the ZIP code.

The decision, entitled Pineda v. Williams-Sonoma Stores, Inc., is limited to card present transactions where the cardholder physically presents his or her card to the retailer.  Some businesses may still legitimately request a ZIP code if the information is needed to complete the transaction. For instance, gas stations that require the customer to enter a zip code at the pump should still be able to do so assuming the oil company does not record the information and credit card processor requires the information to authorize the charge.  ZIP code or other address information may still be collected if it is needed to complete the delivery of merchandise purchased at a store or via online transactions.

The decision was delivered on February 10, 2011. Since then, more than 100 class action suits have been filed against other major retailers including Big 5 Sporting Goods, Bed Bath & Beyond, JC Penney, Kohl’s, Office Depot and WalMart. The circumstances related to some of these businesses may be different than the Williams-Sonoma decision.  Consequently, we expect that the outcomes in some of the new cases will vary.  Many of the suits were filed in San Francisco County Superior Court in early March including cases against Pier 1 Imports, Sephora, T.J. Maxx, Marshalls, Urban Outfitters, Coach, Pottery Barn, Sur La Table and West Elm.

Questions regarding the business implications of Pineda v. Williams-Sonoma should be directed to Jonathan D. Joseph at Joseph & Cohen, Professional Corporation.

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