Developments in California’s Song-Beverly Credit Card Act
In the latest development concerning California’s Song-Beverly Credit Card Act (the Song-Beverly Act), the California Court of Appeal on May 20 certified for publication Folgelstrom v. Lamps Plus, Inc., --- Cal.Rptr.3d ----, 2011 WL 1902202 (Cal.App. 2 Dist.), 11 Cal. Daily Op. Serv. 6055, 11 Cal. Daily Op. Serv. Folgelstrom arose in the context of allegations that specialty lighting retailer Lamps Plus had violated the Song-Beverly Act by asking for customers’ ZIP codes in conjunction with credit card purchases.
As part of its decision, the court specifically addressed the availability of privacy-related tort claims and claims for violations of California’s unfair competition law, California Business and Professions Code section 17200 (UCL), in conjunction with alleged Song-Beverly Act violations. While it held that the plaintiff could still pursue a potential Song-Beverly Act claim, the court rejected plaintiff’s efforts to pursue an invasion of privacy or UCL claim, ruling that an individual does not have enough of a privacy interest in his or her zip code to make collection of that information harmful. It is important to note, however, that collection of zip codes is still potentially problematic under the Song-Beverly Act and retailers should not change their practices because of this decision.
In Folgelstrom, the plaintiff alleged that defendant Lamps Plus had “routinely asked its customers for their ZIP codes during credit card transactions so that it could obtain their home addresses for the purpose of mailing marketing materials to them.” 2011 WL 1601990, at *2. In particular, Folgelstrom alleged:
Lamps Plus misrepresents the purpose of requesting the ZIP code, either actively (by falsely stating that it is needed for surveys) or passively (by relying on the customer’s mistaken belief that the ZIP code aids in authorizing the credit transaction). Lamps Plus then provides the customer’s name, credit card number and ZIP code to Experian Marketing Services, a third party credit reporting agency. Experian th[e]n matches the information provided by Lamps Plus with the customer’s address stored in its own records to produce a mailing list, which it licenses to Lamps Plus to use. Id.
Based on the above facts, the plaintiff attempted to assert claims for (1) Song-Beverly Act violations,(2) invasion of privacy, (3) intrusion, and (4) UCL violations.
Lamps Plus, in turn, demurred to all claims. The trial court upheld the demurrer and entered judgment in Lamps Plus’s favor. The plaintiff then appealed.
The court of appeal, based on Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524 (2011), reversed the lower court’s ruling sustaining the demurrer to and dismissing the plaintiff’s Song-Beverly Act claim. Folgelstrom, 2011 WL 1601990, at *2. The court of appeal also held, however, that the trial court had properly sustained the demurrer to the plaintiff’s claims for (1) constitutional invasion of privacy, (2) common law invasion of privacy (intrusion), and (3) UCL violations. Id.
Plaintiff’s California Constitution and Common Law Privacy-Based Tort Claims
With respect to a plaintiff’s claimed privacy interest in his home address, the court of appeal noted that courts have found constitutional right-to-privacy violations only in the most extreme situations, none of which it found present in Folgelstrom. Id. at *4–6 (citing Planned Parenthood Golden Gate v. Superior Court, 83 Cal. App. 4th 347, 360–62 (2000) (holding disclosing abortion clinic’s staff’s and volunteers’ personal information could threaten safety and well-being given the “emotionally charged and often violent debate regarding the abortion issue”) and Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th 1, 37, 39–40 (1994)).
Applying Planned Parenthood and Hill, among others, the Folgelstrom court held: “In any event, even if we assume that plaintiff has a protected privacy interest in his home address, we conclude that the conduct of which plaintiff complains does not constitute a ‘serious’ invasion of privacy.” 2011 WL 1601990, at *5.
Actionable invasions of privacy must be sufficiently serious in nature, scope, and actual or potential impact to constitute an egregious breach of social norms underlying the privacyright.” [citing Hill] Here, the supposed invasion of privacy essentially consisted of Lamps Plus obtaining plaintiff’s address without his knowledge or permission, and using it to mail him coupons and other advertisements. This conduct is not an egregious breach of social norms, but routine commercial behavior.
Plaintiff’s UCL Claim
Plaintiff cites no authority in support of his novel argument that his address is his intellectual property. Plaintiff did not create his address; rather, the address was assigned by a governmental authority to identify a particular parcel of property and its location for purposes of, among others, public safety, recordkeeping, tax collection and mail delivery. None of the usual incidents of property ownership, such as the right to sell, mortgage, or transfer one's interest in property, adheres in an address. In short, plaintiff’s intellectual property rights are not implicated in this case.
[E]ven if plaintiff had an intellectual property interest in his address, he does not explain how that interest has been economically diminished by Lamps Plus. . . . The fact that the address had value to Lamps Plus, such that the retailer paid Experian a license fee for its use, does not mean that its value to plaintiff was diminished in any way.
[A]ny claim that plaintiff is entitled to restitution on account of the “sale” of his address would presumably be directed to Experian, the entity which sold the information, not to Lamps Plus, which paid for it. In sum, plaintiff does not allege that he suffered an economic injury as a result of Lamps Plus's challenged business practice. Id.