The Streak Continues: Willenken Defeats Class Certification Again

August 2, 2016

The Song-Beverly Credit Card Act, Cal. Civ. Code § 1747.08 et seq., has spawned thousands of lawsuits in recent years premised upon the collection of credit card holders’ personal identification information (“PII”), such as addresses, telephone numbers, or email addresses, during retail transactions, subjecting retailers to the threat of as much as $250 for the first violation and $1,000 for each subsequent violation.  Many of these cases have ended in class settlements, spurring on the plaintiffs’ bar.

In 2015, Geoff Chait filed a putative class action against firm client, Harbor Freight Tools USA, Inc., alleging that Harbor Freight violates the Act by requesting PII during credit card purchases in its stores.  Chait’s challenge to Harbor Freight’s practices threatened the viability of its popular (and valuable) membership programs, for which Harbor Freight does sometimes collect PII at the point of sale.

Plaintiff moved to certify a class, advocating for a strict interpretation of the Song Beverly Credit Card Act that had prevailed in some courts—i.e., that Plaintiff would be required to show only that PII was collected in connection with a credit card transaction in order to prove liability, and, therefore, liability could be determined on a class basis.  On behalf of Harbor Freight, partner Eileen Ahern opposed the motion for class certification, arguing the Act required the court to determine whether a reasonable consumer would perceive the request for PII as a requirement to completing the credit card transaction; thus, certification was inappropriate as individualized issues predominated, where liability determinations would require analysis of, inter alia, what was said during each particular transaction, when PII might have been requested, and whether the consumer volunteered the PII for some purpose (e.g., joining one of Harbor Freight’s membership programs). 

The court sided with Harbor Freight and denied certification, agreeing with Harbor Freight’s interpretation of the Act, and holding Plaintiff had failed to establish the existence of predominant common questions of fact, a class representative with claims typical of the class, or an ascertainable class.  To date, Plaintiff has not appealed the ruling.

This victory is yet another in a string of putative consumer class actions, in which the firm has prevailed on behalf of its clients, including Microsoft, Ticketmaster, and Jinon Corporation, among others, for alleged violations of the Song-Beverly Credit Card Act, and unfair competition and false advertising laws.