In Feder v. Williams-Sonoma Stores, Inc., the United States District Court for the District of New Jersey joined the New Jersey Superior Court in weighing in on the issue of whether a retailer violates consumer privacy state law by requesting a customer's zip code at the point of purchase. Feder was brought by the same plaintiff's lawyers and with claims similar to those in the state court case Imbert v. Harmon Stores, Inc.(Bed, Bath & Beyond). Imbert was decided last month, but without any written decision, and permitted that case to proceed past the pleading stage. The District Court in Feder, however, issued the first written opinion under the New Jersey statutes, finding that allegations that a zip code was verbally requested could not support a claim under New Jersey law.
Both Feder and Imbert involved plaintiffs
suing under New Jersey's Truth-in-Consumer Contract, Warranty
and Notice Act ("TCCWNA"), alleging that a store's
requirement that customers provide their zip codes during a credit
card transaction violates their rights under the TCCWNA. The TCCNWA
prohibits a seller from "offering, entering into, giving or
displaying a written consumer contract or notice that violates a
clearly established right of the consumer." N.J. Stat. Ann. 56: 12-15. As a predicate for
the TCCNWA claim, both Feder and Imbert relied on the Restrictions
on Information Required to Complete Credit Card Transactions
("Restriction Statute"). The Restriction
Statute prohibits a retailer from requiring a customer to provide
"personal identification information" to complete a
credit card transaction, thus providing the basis for violation of
a "clearly established consumer right."
Senior District Judge Walls in Feder granted
Williams-Sonoma's Motion to Dismiss, finding that the plaintiff
failed to sufficiently allege conduct that violated the TCCWNA
because she failed to identify a particular provision of a written
consumer contract that violated her rights. Feder pled that the
credit card transaction form constituted the written consumer
contract. Judge Walls, skeptical of this assertion, reasoned that
even if the form qualified as a contract, plaintiff's recorded
zip code and verbal request for the same did not constitute a
contract provision. Consequently, Judge Wales found that plaintiff
failed to satisfy the elements of TCCNWA because "[t]he
alleged requirement that plaintiff provide her zip code would only
violate the TCCWNA if it was a provision of a written
contract." Plaintiff also alleged that her rights were
violated under the Restriction Statute -- not by the recording of
her zip code -- but by the requirement that she provide her zip
code. However, the Restriction Statute does not provide for a
private right of action, and, as discussed above, a claim under
Plaintiff's proposed private vehicle for enforcement, the
TCCNWA, failed.
Williams-Sonoma also argued that if the credit card transaction
was considered a written consumer contract, the court must consider
all terms of that "contract" including the point of sale
signage at Williams-Sonoma stores expressly stating that when a zip
code is requested it is used for marketing purposes, and that
providing it is voluntary and is not a condition of processing the
transaction. The Restriction Statute differs critically from
California's Song-Beverly in that New Jersey's Restriction
Statute only applies to information being "required,"
whereas Song-Beverly also applies to a "request." This
issue was not presented in Imbert. However, since the
District Court ruled on the TWNCCA, it did not need to reach this
issue.
One additional anomaly between the Feder and
Imbert cases is that in Imbert the state court
permitted the plaintiff to proceed with an invasion of privacy
claim. However, when presented with Williams-Sonoma's Motion to
Dismiss, Feder abandoned her invasion of privacy claim in her
Opposition because the Motion revealed she had previously provided
her contact information to Williams-Sonoma. Feder also filed a
cross-motion for leave to file an Amended Complaint, which the
District Court denied as futile.
Craig Cardon, Elizabeth Berman; and Sean Kirby of Sheppard Mullin
Richter & Hampton LLP represented Williams-Sonoma.
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