Song-Beverly Class Action Defense Cases–Absher v. AutoZone: California Court Affirms Defense Judgment In Class Action Under Song-Beverly Act Because Act Applies Only To Personal Information Sought By Merchant At Time Of Sale

Jul 2, 2008 | By: Michael J. Hassen

Summary Judgment Properly Granted in Class Action under California’s Song-Beverly Act, Concerning Merchant Requests for Personal Information in Connection with Credit Card Transactions, because Class Action Arose from Merchant Request as part of a Return Transaction rather than a Sale California Court Holds

Plaintiff filed a putative class action against AutoZone alleging that it violated California’s Song-Beverly Act, Cal. Civil Code, § 1747.08, by requesting that he provide his name, telephone number and signature in connection with his return of a product. Absher v. AutoZone, Inc., ___ Cal.App.4th ___, 78 Cal.Rptr.3d 817 (Cal.App. 2008) [Slip Opn., at 2-3]. The class action alleged that plaintiff purchased a locking gas cap from AutoZone, took it to the parking lot and, finding that it did not fit, immediately returned it. Id., at 2. The class action complaint further alleged that, in order to return the item, plaintiff was required to provide personal identification information in violation of a California law that prohibits merchants from obtaining personal information in connection with credit card transactions. Id., at 2-3. Plaintiff alleges that he asked the clerk the reason for requiring his telephone number, because he previously had been the victim of identity theft, but the clerk could not provide an answer, id., at 3. Plaintiff filed his class action complaint alleging but a single cause of action under Song-Beverly. Id. Defense attorneys moved for summary judgment on the ground that Song-Beverly did not apply to transactions concerning returns, only at the time of sale; the trial court agreed and dismissed the class action. Id. The appellate court affirmed.

The Court of Appeal noted that three recent decisions have addressed the precise issue presented here, and that each of held that Song-Beverly does not apply to requests for refunds in connection with the return of merchandise but, rather, only at the point of sale. Absher, at 7 (citations omitted). The appellate court’s analysis tracked these prior cases, see id., at 7-10, and the court held that the personal information requested served the merchant’s “stated rationale” of “detect[ing] and prevent[ing] employee fraud,” id., at10. The Court additionally explained at page 15 that transactions involve merchandise returns “arguably are different” from sales transactions because the merchant may need “[c]ertain personal information…to verify that the return transaction was bona fide and to prevent employees from manipulating such transactions for their own benefit.” For example, “if the product returned has been used or damaged prior to the return, the merchant may have a legitimate need to contact the customer who made the return.” Id. Thus, legitimate uses, separate and apart from marketing, exist for the information sought by the merchant in this case. Accordingly, the defense was entitled to summary judgment against the class action claims, id., at 16.

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