In connection with a class action lawsuit filed against Michaels Stores Inc., the United States District Court for the District of Massachusetts certified to the Supreme Judicial Court of Massachusetts three questions: (1) whether a ZIP code constitutes personal identification information; (2) whether, under the Massachusetts statute prohibiting collection of personal identification information during a credit card transaction, a plaintiff may pursue a claim without any evidence of identity theft; and (3) whether, under the statute a “credit card transaction form” includes an electronic transaction form. Earlier this week, the Supreme Court answered “yes” to all three of these questions. A copy of the Court’s opinion is attached here. The Supreme Court’s decision will likely open the door to more lawsuits against retailers in Massachusetts. Plaintiffs may now file actions against retailers who collect ZIP code information during a credit card transaction and, consistent with the Supreme Court’s broad interpretation of personal identification information, plaintiffs may try to expand the definition of personal identification information even further to include other types of information. In addition, the Supreme Court’s decision has lowered the bar for plaintiffs who struggle to prove that they have been injured in these cases. Under the Supreme Court’s ruling, a plaintiff no longer needs to demonstrate that he or she has suffered identity theft in order to maintain a cause of action. Significantly, the Court stated that receipt of unwanted marketing materials or the sale of a consumer’s personal identification information to a third-party can constitute an injury sufficient to maintain an action. As a result of the Supreme Court’s decision, retailers in Massachusetts should review and evaluate their data collection practices.
