Wednesday, May 6, 2015
Ninth Circuit Asks S.C. to Decide Scope of Credit Card Statute
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday asked the state Supreme Court for help in interpreting the state statute that generally prohibits merchants from asking credit card customers for their addresses and other personal identifying information.
A panel consisting of Judges Consuelo M. Callahan, Milan D. Smith Jr., and Paul J. Watford certified the following question to the state high court:
“Does section 1747.08 of the California Civil Code prohibit a retailer from requesting a customer’s personal identification information at the point of sale, after a customer has paid with a credit card and after the cashier has returned the credit card to the customer, if it would not be objectively reasonable for the customer to interpret the request to mean that providing such information is a condition to payment by credit card”?
The section is part of the Song-Beverly Credit Card Act. The issue arose from a putative class action filed against Devanlay Retail Group, Inc., the U.S. retailer of Lacoste clothing.
The plaintiff, Tammie Davis, alleges that after she purchased merchandise at the defendant’s Roseville location, she was putting her credit card back in her purse when the cashier asked her
“What’s your [zip] code?” and that this violated §1747.08.
The suit was originally filed in Placer Superior Court, but was removed to federal court by the defendant.
U.S. District Judge Kimberly J. Mueller of the Eastern District of California granted Devanlay’s motion for summary judgment, reasoning that “[v]iewed objectively, Devanlay’s policy of waiting until the customer has her receipt in hand conveys that the transaction has concluded and that providing a zip code is not necessary to complete the transaction.” A number of other district judges around the state have also applied the “objective consumer perception test.”
But the case on which those judges have primarily relied, Florez v. Linens ‘n Things (2003) 108 Cal. App. 4th 447, dealt with a request for personal identification information made before the customer presented a credit card, and the application of the perception test to hold that such a request violates Song-Beverly. There are no published California opinions on whether such a test can be applied in the situation presented in the certified question, the Ninth Circuit panel said, emphasizing the potential consequences of the high court’s response.
“The answer to this question could have a significant impact on the practices of thousands of California retailers, as a broad construction of Song-Beverly could prohibit many retailers’ practice of requesting [personal identification information] from customers immediately after they have completed a credit card transaction,” the judges wrote.
The case is Davis v. Devanlay Retail Group, Inc., 13-15063.
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