Monday, May 23, 2011

Second District Publishes Two New Beverly-Song “Zip Code” Opinions: Archer v. United Rentals and Folgelstrom v. Lamps Plus

On May 19, 2011, the Second District (Division 1) in Archer v. United Rentals, __ Cal.App.4th __ (2011) considered several questions left unanswered in Pineda v. Williams-Sonoma Stores, Inc., 51 Cal.4th 524 (2011), previously discussed here, including (1) whether the practice of obtaining ZIP code information in credit card transactions could give rise to UCL standing, (2) the extent to which Civil Code section 1747.08 extends to business transactions, and (3) whether the trial court erred by concluding that a class was not ascertainable based on the purported need to sort through individual transactions to determine whether they were personal (and not business) in nature.

With regard to the first issue, the Court concluded that the lack of casual relationship between the practice of obtaining a consumer’s ZIP code information and a loss of money/property deprived the plaintiff of any ability to establish UCL standing:
In this case, plaintiffs essentially claim the unfair business practice is the unlawful collection and recordation of their personal identification information, an invasion of their right of privacy, which, they maintain, constitutes an “injury in fact.” (See Kwikset, supra, 51 Cal.4th at pp. 322–323.) Yet plaintiffs have failed to demonstrate how such privacy violation translates into a loss of money or property. Thus, the absence of “lost money or property” is fatal to plaintiffs’ UCL class claim for injunctive relief.
Slip Opinion, at 8.

The remaining two issues turned on the trial court’s finding that section 1747.08 applied only to personal credit card transactions, which not only excluded business credit cards on their face, but required a factual inquiry into whether personal credit card transactions were business related. Based on this construction of the statute, the trial court denied certification of a class action based on the purported need to sort through individual transactions to determine class membership. The Court of Appeal disagreed, concluding that the statute applies across the board to personal credit cards without regard to how the card is used:
We hold that section 1747.08 does not apply to credit cards issued for business purposes. But we further hold that the privacy protection of section 1747.08 applies to “a natural person to whom a credit card is issued for consumer credit purposes” (§ 1747.02, subd. (d), italics added) without regard to the actual purpose for which the card is used, namely, business or otherwise.
Slip Opinion, at 8-22.

Based on the Court’s construction of the Statute, the Court remanded the matter for reconsideration of the trial court’s findings with regard to ascertainability:
We note that the trial court did not address whether a class could be ascertained under the SBCCA and CLRA claims if no inquiry and determination had to be undertaken regarding the purpose, either consumer or business, to which the personal credit card had been used on a transaction-by-transaction basis. We further note the court did not address in its order whether it would be unreasonably time-consuming or expensive to distinguish between transactions in which a business card as contrasted with a personal card were used.
In view of this procedural posture, we reverse the order denying certification of a class under the SBCCA and CLRA claims and remand for the trial court to conduct further proceedings to determine whether a class of personal credit card holders could be ascertained without regard to the purpose for which the personal credit card was used in a particular transaction.
Slip Opinion, at 8.

In Folgelstrom v. Lamps Plus, __ Cal.App.4th (2011), the Second District (Division 5) reviewed dismissal of privacy claims ancillary to a plaintiff’s Beverly Song claim, including (1) Violation of the state constitutional right to privacy, (2) Common law tort of invasion of privacy, and (3) Violation of the UCL.

Like Archer, the Court concluded that plaintiff lacked standing to assert a claim under the UCL, as the plaintiff did not allege an economic injury that occurred as a result of the challenged business practice of obtaining customer ZIP code information. See Slip Opinion, at 7-8.

With regard to the right to constitutional claim, the Court held that an individual’s privacy interest in their residential address in relation to product marketing was an insufficient interest on which to support a claim for relief:
"Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right." (Hill, supra, 7 Cal.4th at p. 37.) 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.
Slip Opinion, at 5-6.

With regard to plaintiffs invasion of privacy claim – which was predicated upon conduct of obtaining customer ZIP code information under false pretenses – the Court similarly held that the subsequent use of such information for marketing purposes did not rise to the level of being “highly offensive”:
As with the alleged constitutional violation, whether or not plaintiff has sufficiently alleged an intrusion into his private matters, the conduct of which he complains does not meet the standard of "highly offensive." Indeed, we have found no case which imposes liability based on the defendant obtaining unwanted access to the plaintiff's private information which did not also allege that the use of defendant's information was highly offensive. However questionable the means employed to obtain plaintiff's address, there is no allegation that Lamps Plus used the address once obtained for an offensive or improper purpose.
Slip Opinion, at 6.

Thursday, May 19, 2011

California Supreme Court Grants Review in Tien v. Tenet Healthcare

On May 18, 2011, the California Supreme Court granted review of the Second District (Division 8) opinion upholding denial of certification of meal break claims in Tien v. Tenet Healthcare, 192 Cal. App. 4th 1055 (2011). This comes on the heels of the Court taking the same action with regard Division 8’s opinion in Hernandez v. Chipotle Mexican Grill, Inc., Case No. S188755 (discussed here), teeing up the same action to be taken for Division 8’s recent publication of an identical opinion last week in Lamps Plus Overtime Cases, __ Cal.App.4th __ (2011)).

Per the Court's website, briefing in Tien is stayed pending the Court’s decision in Brinker:
The petition for review is granted. Further action is this matter is deferred pending consideration and disposition of a related issue in Brinker Restaurant v. Superior Court, S166350 (see Cal. rules of Court, rule 8.524 (c)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.528, is deferred pending further order of the court. Votes: Cantil-Sakauye, C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ.

Excused Absence: My Most Recent Court Appearance

Pictured: Myself and “opposing counsel” in the Mural Room at the Santa Barbara Courthouse. 

Monday, May 2, 2011

UPDATE: AT&T Mobility LLC v. Concepcion

I received an email this weekend from a reader questioning whether the Marks test could be considered here based on the fact that Justice Thomas did not technically “concur in judgment.” I appreciate criticism like this, as I write my blog in large part to provoke thought and discussion on issues. As we are in the business of crafting the perfect argument, which I view as an ideal rather than an attainable end, criticism is my best friend. That said, I am not sold at this point that the distinction raised disposes of the issue I previously discussed.

First, placing labels aside, and focusing solely on the substance of the Majority’s and Thomas’ analysis, it is apparent that the Majority and Justice Thomas do not agree on the grounds for finding preemption. The majority believes that preemption of the Discover Bank rule occurs “[b]ecause it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress….” See Slip Opinion, at 18 (citing Hines v. Davidowitz, 312 U. S. 52, 67 (1941)). Conversely, although Justice Thomas states that he joins the Court’s opinion, he expressly conditions his participation on a continued rejection of “purposes-and-objectives pre-emption.” See Slip Opinion (Concurrence), at 1-2 (“although I adhere to my views on purposes-and-objectives pre-emption, see Wyeth v. Levine, 555 U. S. 555, ___ (2009) (opinion concurring in judgment), I reluctantly join the Court’s opinion.”). Justice Thomas’ view on this type of preemption – as explained in Wyeth – is that it is “inconsistent with the Constitution.” I do not see how he can simultaneously maintain that he still rejects “purposes-and-objectives pre-emption” and join the Majority’s analysis finding preemption on that very basis. Thus, placing substance over form, Thomas’ statement in this regard necessarily demonstrates a logical disconnect from the Majority’s underlying analysis.

Second, assuming the Marks rule is inapplicable as suggested, this does not really dispose of the issue – namely, whose analysis governs moving forward? This would seem to be a legitimate issue, as Justice Thomas not only acknowledges that he and the Majority have different tests, but even suggests that these tests may not always result in the same outcome. See Slip Opinion (Concurrence), at 1-2 (“I think that the Court’s test will often lead to the same outcome as my textual interpretation …”).

Again, it is important to note that my prior analysis sought to get to the underlying meaning of the Court’s opinion to evaluate the potential legal options, if any, that now exist. To do this one must know which test is applicable; Is it the test proposed by the majority or the test proposed by Justice Thomas? More to follow.