Willenken Firm Knocks Out Another Song-Beverly Class Action

Summer 2014

There is always a risk when putting an undefeated streak on the line, but that is precisely what the Willenken Firm did in its recent defense of Defendant in Lewis v. Jinon Corporation.

Plaintiff alleged he entered Defendant’s store where he proceeded to purchase alcohol. Duringcheck-out, the store clerk requested and recorded his birthdate, which Plaintiff alleged to be a violation of the Song-Beverly Credit Card Act, California Civil Code section 1747.08 et seq. (the “Act”). According to Plaintiff, while the clerk could request his birthdate (to ascertain he was older than 21), the clerk was not permitted to record the information. So, Plaintiff filed suit on behalf of himself and all others similarly situated.

Jinon retained the Willenken Firm to defend it in the putative class action. The Willenken Firm immediately demurred to the complaint, seizing upon the statutory language in the Act to argue that an exception applied to Defendant’s conduct. Specifically, subdivision (c) of the Act states that subdivision (a) (which contains the prohibition against requesting and recording PII) does not apply where PII is required “for a special purpose incidental but related” to the credit card transaction. That was precisely the case here because a consumer’s birthdate is required to establish that the consumer is old enough to purchase alcohol. Moreover, Plaintiff ’s proposed theory of liability—that a retailer could ask but not record a birthdate—found no support in the statute. According to the statutory language, the firm argued, if the exemption applied, a retailer was free to “request and record” PII.

The trial court agreed with the Willenken Firm and sustained the demurrer without leave to amend. As a result, the Willenken Firm knocked out yet another Song-Beverly class action at the pleading stage, keeping its undefeated streak intact.