Willenken Firm Knocks Out Another Song-Beverly Class Action

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

The plaintiff alleged he entered Defendant’s store where he proceeded to purchase alcohol. During check-out, the store clerk requested and recorded his birthdate, which the 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 the 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, the plaintiff filed suit on behalf of himself and all others similarly situated.

Jinon Corporation retained Willenken to defend it in the putative class action. Willenken immediately demurred to the complaint, seizing upon the statutory language in the Act to argue that an exception applied to the defendant’s conduct. Specifically, subdivision (c) of the Act states that subdivision (a) (which contains the prohibition against requesting and recording personally identifiable information (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, the 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 Willenken and sustained the demurrer without leave to amend. As a result, Willenken knocked out yet another Song-Beverly class action at the pleading stage, keeping its undefeated streak intact.