F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

T A M M I E D A

V I S , individually and on behalf of all others similarly situated,

Plaintiff-Appellant
,

v.

D E V A N L A Y R E T A I L G R

O U P , I N C ., a Delaware corporation, Defendant-Appellee

. No. 13-15063

D.C. No. 2:11-cv-01719-KJ MCKD

ORDER CERTI F YI

N G A QUESTI ON TO THE CAL I F ORNI A SUPREME COURT

F iled May

5, 2015

B efore: Consuelo M. Callahan, Milan D. Smith, J r., and Paul J . W atford, Circuit J udg es.

Per Curiam OrderD A V I S V

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SUMMARY *

Certif ication to the Calif

ornia Suprem e Court

The panel certified the f ollowing q uestion to the California Supreme Court:

Does section 1747.08 of the Cali f ornia Civil C o de prohibit a retailer from r equestin g a custom e r ’ s p e r s o n a l i d e n t i f i c a t i o n information
at the point of s a l e , after a customer has paid

w i t h a credit card and after the cashier h as returned the c redit card to the customer, if it would not be objectively reasonable fo r the
customer to interpret the request to mean that providing such infor m a t ion is a condition to pay ment by credit card?

ORDER

PER CURI AM:

This a ppeal requires us to resolve wheth e r the Song

B everly Credit Card A ct (Song -B everl y ) p r ohibits a retailer from reque s t ing a customer’s personal identification inform a t ion (PI I ) at the point of sale after the customer has paid with a c redit card, even if it would not be objectively reasonable for the custo m e r t o construe the request to mean that providing PI I is required to pay by credit card. The

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D A V I S V

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answer to this question could have a sig nificant impact on the
p r a c t ices of thousands of California retailers, a s a bro a d construction of Song -B everly co u l d prohibit many retailers’ practice of requesting PI I fr o m customers immediately a fter they have completed a credit card transaction. W e f i n d no controlling precedent in the decisions of the California Supreme Court or Courts of A ppeal, see Cal. R. Ct. 8.548(a)(2), and find the statute’s lang uag e and leg islative history ambig uous. F or these reasons, we think it appropriate that the state c ourt o f l a s t resort be g iven an opportunity to resolve the question in the first instance.

W e therefore r espectfully ask the Supreme Court o f California to ex ercise its d i s cr etion to decide the c ertified question set forth in Part I of this order.

I. Certif

ied Question

Pursuant to Rule 8.548 of the California Rules of Court,

we request that the California Supreme Court an s w e r the following question of state law:

Does se c tion 1747.08 of the California Civil Code p r o hibit a retailer f rom requesting a

c u s t o m e r ’ s p e r s o n a l i d e n t i f ication informatio n at the point of sale, a ft er a customer has paid with a credit card a n d a fter the cashier has returned the c redit card to the customer, if it would n ot b e o bjectively reasonable for the
customer to interpret the request to mean that providing such information is a conditi o n to pay ment by credit card?D A V I S V

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O U P 4

T h e Court may r eformulate o ur question, and its ex positio n of the issues involved should not be limited by the q uestion’s phrasing

. Cal. R. Ct. 8.548(f)(5). W e will accept and f ollow the Court’s decision. Cal. R. Ct. 8.548(b)(2).

II. Background

The A ppellant
, T a mmie Davis, v isited a Roseville, California retail clothing store owned by the Appellee, Devanlay Retail Group, I nc. ( D e v a n l a y ), on April 2, 2010. She broug ht an item to the cas h r e gi s t er for purchase a nd provided her c redit card to the c ashier. As Davis was placing her credit card back i n h er purse, the cashier asked her “W h a t’s y our [z ip] code? ” Davis did not recall whether she had received her receipt when the request was made.

Davis filed a putative class action ag a inst Devanlay in the Superior Court of California, County of Placer. Davis alleg ed that D evanlay violated Song -B everly
, Ca lifornia Civil Code § 1747.08, by requesting and recording the PI I of its retail
customers who pay with credit cards. D evanlay removed the

case to the F ederal District Court fo r the Eastern D istrict o f California on J une 27, 2011.

Devanlay moved for summary judg ment on J une 5, 2012. The district court g ra n t ed summary judg ment in f avor o f Devanlay on O ctober 1 7, 201 2

. Davis v. Devanlay Retail Gr o u p, Inc.
, No. 11-CV-01719-KJ M-CKD, 2012 W L 6589205 (E.D. Cal. D ec. 17, 2012) (unpublished). The district court r e a s oned that, under Song -B everly
, “[ t] he permissibility of a retailer’s request f or a customer’s personal information turns on ‘whether a consumer would perceive the store’s ‘request’ for information as a ‘condition’ of the use o f

a credit card.’” Id

. at *3 ( quoting Florez v. Linens ‘n Things,D A V I S V

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Inc.
, 108 Cal. A pp. 4th 447, 451 (2003)). The court therefore evaluated Devanlay ’s policy “under an objective standard

. ” Id

. at * 4. The district court found that “[ v] iewed objectively
, Devanlay ’ s policy of w a i t ing u ntil the customer h as her receipt in hand convey s that the transaction has concluded and that providing a z ip code is not necessary to complete the transaction.” I

d

.

A timely appeal to this court followed, raising the question of California law described in Part I

.

III. Explanation of

Request f

or Certif ication

The Song -B everly Credit Card Act “prohibits businesses from requesting that cardholders provide ‘personal id e ntification information’ during credit card transactions, and then recording that information.” Pi neda v. WilliamsSonoma Stores, Inc
., 51 Cal. 4th 524, 527 (2011). The A ct provides, in pertinent part:

no pers on, firm, partnership, association, o r corporation that accepts credit c ards for the
trans ac t ion of business shall do any of the following :

[ . . .]

Request, or require a s a condition to accepting the credit card as pay

ment in full or in part for
g oods or ser v i ces, the cardholder to provide personal identification information, w hich the
p erson, firm, partnership, association, or corporation accepting the c r edit card w rites,

causes to be written
, or otherwise recordsD A V I S V

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u p on the credit card transaction form o r otherwise.

Cal. Civ. Code § 1747.08(a)(2)).

The district court in this case interpreted Song -B everly to prohibit a retailer f

rom requesting PI I only if a n o b jectively reasonable consumer would perceive the request to mean that providing PI I was n e c e ssary to complete a credit card transaction. 2012 W L 6 589204, at *4. Several other district
courts in California have also interpreted Song- Be v erly to

r equire an objective consumer perception test. 1 T h e Appellant, by contrast, interprets the statute to forbid retailers

1 S ee Go sso o v. Mi c r o s o

ft Co rp

. , No

. 1 3

- CV- 2 0 43

- SVW
, 2 0 1 3 W L 5 6 5 1 2 7 1
, at * 4 (C.D. Cal. Oct. 9
, 2 0 13 ) (u n p u b lish ed ) (“ [L ]iab ility u n der th e A ct d ep en d s o n w

h eth e r a reaso n ab le cu sto m er w o u ld p erceiv e th e sales asso ciate’ s req u est f o r P II as a ‘ co n ditio n ’ o n u s i n g a c r e d it card

. . . .”); Dea n v

. D i c k ’s S p o rtin g Go od

s, In c. , No

. 1 2

- CV- 7 3 1 3

- FMOMA Nx
, 2 0 1 3 W L 3 8 7 8 9 4 6
, at * 5 (C.D. Cal. J u ly 2 6
, 2 0 1 3 ) (u n p u b lish ed ) (“ [W ]h ere a reaso n ab le co n su m er w o u ld n ot p erceiv e th e req u est f o r P II

as a co n d itio n to co m

p letin g th e tran sactio n , th ere is n o liab i l i ty u n d er th e A ct.”); Yeo m a n v. Ikea U.S

. W est, In c. , No

. 1 1

- CV- 7 0 1

- W QH- B GS, 2 0 1 2 W L 1 5 9 8 0 5 1, at * 8 (S.D. Cal. May 4
, 2 0 1 2 ) (“ A co u rt ap plies an o b j ectiv e test to d eterm i n e w h eth er a retailer’ s req u est f o r p erso n al id en tif

icatio n in f o rm atio n w o u ld b e p erceiv ed as a co n d itio n o f cred it card p ay m en t.”); Go rmley v. Nike In c. , No

. 1 1

- CV- 89 3

- SI, 2 0 1 3 W L 3 2 25 3 8, at * 7 (N.D. Cal. J an

. 2 8
, 20 1 3 ) (u n

p u b l ish ed ) ( “[ T ] h e Co u rt w ill ap p ly an o b j ectiv e stan d ard to determ in e w

h eth er Nik e’s p olicy f

o r req u estin g Z IP co des

w o u ld b e p erceiv ed as a co n d itio n o f cred it card p ay m en t

. . . .”); Ga ss v. Best Bu y Co

. , 2 7 9 F .R. D

. 5 61
, 5 70 (C.D. Cal. 2 0 1 2 ) (“ If th e cu sto m er

reaso n ab ly perceiv es th e req u est f o r P II as a co n d itio n o f co m p letin g th e cred it card tran sactio n , th e A ct h as b een v io lated .”); Ju h lin e v. Ben Brid g e Jeweler, In c. , N o

. 1 1

- CV- 29 06

- W QH- N L S, 2 0 1 2 W L 3 9 8 6 3 1 6
, at * 5 (S.D. Cal. Sep t. 1 1
, 2 0 1 2 ) (u n p u b lish ed ) (“ A co u rt ap p lies an o b j e ctiv e test to d eterm in e w

h eth er a r e t a i l er’ s req u est f o r p erso n al id en tif

icatio n in f o rm atio n w o u ld be p erceiv ed as a co n d itio n o f cred it card p ay m en t.”).D A V I S V

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from requesting PI I a t the point of sale when the custome r pay s by credit card, reg ardless of whether a customer would reasonably perceive the request as announcing a c ondition o f
pay ment by credit card. The California Supreme Court has
not addressed this issue. We find support for both the district court’s a nd the Appellant’s interpretations in the decisions o f California’s Court s o f A p p eal, a s well as in the statute’s lang uag e and leg islative history

.

District c ourts that h a v e applied an objective consu m er percept ion test in Song -B everly cases have relied p rimarily

on the California Court o f Appe al’s decision in F lorez v

. Linen s ‘ n T

hings
, 1 08 Cal. App. 4th 447 (2003). I t is ambig uous whether Florez endorses such a test; the case could also plausibly be read to h old that Song

- B everly prohibits all requests f

or PI I “in conjunction with” credit card transactions.

Florez held that Song -B everly p rohibits a r e tailer from requesting PI I at the point of sale bef o r e the customer has announced his or her preferred pay ment method. Id

. a t 453. I n i n terpreting the lang uag e of Song -B everly
, the court observed:

[ former] section 1 7 4 7 .8 is a consumer protection statute, an d the retailer’s request for personal identi f

ication information must be viewed from the customer’s standpoint. I n other words, the re tailer’s unannounced objective intent is ir r elevant. W hat does
matter is whether a consumer would perceive
t h e store’s “request” for information as a “condition” of the use of a credit card.D A V I S V

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Viewed from this perspective, we think there is nothing ambig uous or unclear about the
statute. B y its plain lang uag e, it prohibits a

“ r e q u e s t ” f

o r p e r s o n a l i d e n t i f

i c a t i o n information in conjunction with the use o f a credit card.

Id

. at 451 (citation omitted). District courts have interpreted this portion of Florez to mean that Song -B everly prohibits requests for PI I only if they could reasonably be perceived a s

a condition to completing a c r e d it card transaction. B ut we also f ind it plausible that the p assag e means S o n g

- B everly prohibits requests for PI I that are “in conjunction with the use of a credit card,” and that the case does not d e f i ne precisely when a request is in conjunction with the use of a c redit c ard. I s a r equest fo r P I I “ i n conjunction with the use of a credit card” if it comes immediately a fter a n employ ee returns a customer’s credit card?

W e note th a t t h e F

lorez court does not appear to have actually applied an objective test in deciding the c ase. The cashier in F

lorez asked the customer for h er phone number before the customer announced she w as pay ing by credit c ard. Id

. at 449. I t i s n ot obvious that a consumer would reasonably believe that such a request had any thing to d o with her credit card when she had not y et sig naled an intention
to pay b y credit c a r d

. B u t the court n o netheless held that Song -B e verly pr ohibits p re-tender requests for PI I
, without addressing wh ether it w ould be objectively reasonable for a

consumer t o i n terpret such a request to mean that providing PI I is a condition to pay

ment by credit card.

W e also note that the Florez court ex plicitly

rejected the defendant’s a

rg ument that “[ former] section 1747.8 allows aD A V I S V

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retailer to request c o n sumer telephone numbers before the

manner of pay

ment is known becau s e the timing of the request eliminates any c oncern that the provision of such information is a c ondition of credit card p ay ment.” Id

. at 453. The court reasoned:

As evidenced by the 1991 amendment, section 1747.8 is desig ned to p reve n t a “request” for personal information, because a customer might p erceive that r equest a s a c o n d ition o f

cr e d i t card pay

ment. I n e ffect, the 1991 amendment prevents a retailer from m aking

an end-run around the law b y c l aiming the
customer f

urnished personal identification data “voluntarily

. ” I n f

a c t , the E nrolled B ill Report of th e C alifornia Department o f Consumer Affairs, Assembly B ill No. 1 4 7 7 ( 1 9 9 1

– 1 9 9 2 R e g

. S e s s

. )
, s p e c i f i c a l l y addressed this p r o b l em, noting “[ t] his b ill would prohibit requesting o r requiring that information.” As we r ead it, the legi s lative intent sug g ests the 1991 a mendment si m ply clarified that a “ request” for p e rsonal identification information was prohibited if it i m m e d i a t e l y p r e ce ded the cred i t c a r d transaction, even if the consumer’s r esponse

was v oluntary and made only for market i n g purposes

.

Id

. (emphases added). This passag e cuts ag ainst interpreting Florez to endorse an objective consumer perception test. The
passag e sug g ests instead t hat Song -B everly prohibits requests for PI I that a consumer might interpret as a conditi o n t oD A V I S V

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pay ment b y credit card, even if it w o uld not be objectively reasonable to do so.

The a mbig uous lang uag e o f the statute itself o ffers li ttle
g uidance about whether c ourts should apply an objective

consumer perception test. T h e relevant portion of section 1747.08(a) states that businesses that accept credit cards shall
not “[ r ] equest, or require as a condition to accepting the credit

ca r d a s pay

ment in full o r in part for g oods or services, the cardholder to provide persona l identification information

. . . .” T he statute’s punctuation makes it ambig uous whether the clause “as a condition to accepting the c r e d i t c a rd a s pay ment” modifies “ request” in addition to modify i ng “require.” I f it does modify “ request,” this would support the Appellee’s p osition that Song -B everly only forbids a request for PI I if the request could lead a consum e r t o r easonably believe that p roviding PI I is a condition to pay ment b y credit card. I f the clause does not modify “ r e q u e s t ,” the plain meaning of the statute w ould appear to broadly prohibit a retailer from requesting PI I when a customer pay s by credit card.

This latter interpretation finds so m e support in the plain lang uag e of the statute. I n W hite v. County of Sacramento
, 3 1 C al. 3d 676 ( 1982), the California Supreme Cour t interpreted a statute with a very similar g rammatical structure to the disputed portion of Song -B everly

. The statute in W hite defined “punitive action” as “ a n y action which may lead to dismissal, demotion, suspension, reduction in salary
, written reprimand
, o r transfer for purposes of punishment .” Id

. at 679 (emphasis added). The defendants a rg ued that the clause “for p urposes of punishmen t” modified all of the preceding categ ories, including “demotion.” Id

. The court rejected thisD A V I S V

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interpretation because it violated “the most fundamental rules of statutory

construction . . . .” Id

. at 680.

The court in W

hite applied a rule of construction c alled the last antecedent rule. Und er the rule, “qualify ing words, phrases and c lauses are to be applied to the words or phrases immediately preceding and are n o t t o be construed a s

ex tending to or including others more remote.” Id . (quoting Bd

. of Port Comm’rs v. W illiams
, 9 Cal. 2d 3 81, 389 (1937)) (internal quotation marks omitted). A s applied in W hite
, “the rule require[ d] that the ph r ase ‘for purposes of punishment’ be read to qualify

only the word ‘transfer’ and not the words ‘dismissal,’ ‘ demotion,’ ‘suspensio n,’ ‘ r eduction in salary ,’ and ‘ written r e p r i mand.’” I d

. As applied here, the r u le o f antecedents sug g est s t h at the clause beg inning “as a condition” only

modifies “require,” not “request.”

The court in W

hite also ex a mined the punctuation of the
statute. I t reasoned that where an entire phrase is set off from preceding terms with a comma followed by the word “or,” it “indicates an intention to use it disjunctive l y s o as to desig nate alternative or separate c at e g ories.” I d

. at 680. Here, “request” is set apart from “or require as a condition to accepting th e credit card as p ay ment” by a comma. This would normally indicate that the c l a u se “as a condition to accepting t h e credit c ard a s pay ment” does not modify “request.” 2 See id.

2 I f t he clau se w ere m ean t to m o d if y b o th “ req u est” an d “ req u ire,” th e

m o re n atu ral p u n ctu at i o n w o u ld b e: “ [r]eq u est o r req u i re, as a co n d itio n to accep tin g th e cred it card as p ay m en t

. . . .” S

ee W h ite
, 3 1 C al. 3 d at 6 8 0 (“ Ev id en ce th at a q u alif

y in g p h rase is su

p p o s ed t o ap p ly to all an teced en ts in stead o f on ly to th e im

m ed iately p reced in g on e m ay b e f o u n d in th e f

act th at it is sep arated f

ro m th e an teced en t s b y

a co m m a.”).D A V I S V

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W h ile the reasoning in W hite appears to supp o r t t h e Appellant’s construction of Song -B everly ’s plain lang uage , California Court s o f Appeal have not applied the last antecedent rule in interpret ing the disputed portion of the
statute. I n Absher v. A utoZone, Inc.
, a California Court o f Appeal held that section 1 747.08(a) did n ot apply to a refund for the return of merchandise purchas e d b y credit c ard. 164 Ca l

. A p p

. 4 th 332, 335 (2008). The court ex plicitly interpreted subdivision (a)(1) to “pr ohibit[ ] merchants from requesting o r requiring credit card cu s t o m ers to write personal identification information on a credit card f orm as a condition precedent to accepting payment by credit card

. ” I d

. a t 3 4 3 (emphases added). The p laintiff in Absher urg ed the court to apply

the last antecedent rule, arg u ing that:

th e placement of the commas indicates that the qualify ing p hrase “as a condition to accepting the credit card as p ay

ment” applies only to “require,” not to “request.” Therefore, under this punctuation-based interpretation, subd i visions (a)(1) a

nd (a)(2) prohibit a merchant from r equesting that a customer provi d e personal information on a card f orm in connection with any credit card transaction

. . . because a request for such information is
not subject to the phrase “as a cond i t i o n to accepting pay

ment in full o r in part for g oods and services.”

Id

. at 344. The court rejected this interpretation, finding that it would produce a number o f anomalous results. Id

. at 344–45. Absher thus c o u nsels ag ainst interpreting Song

B e v e r l y i n the way its tex t alone sug g ests it should be interpreted.D A V I S V

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Song -B e verly ’s leg islative history is also inconclusive. As orig inally enacted, Song -B everl y did not contain section 1 7 4 7

. 0 8 or a

n analog ous provision. P ineda
, 51 Cal. 4th at 534–35. F o rmer section 1747.8 was enacted in 1990 a s “ a response to two principal privacy concerns”:

[ F ] irst, that w i t h increased u se of computer tech nolog y , very specific and personal information about a consumer’s spending habits was being made available to any o ne willing to pay f

or it; and second, t h at acts o f h a r a s s m e n t a n d v i o l e n c e we r e b e i n g committed by store clerks who o btained customers’ phone numbers and addresses.

Florez
, 108 Cal. App. 4th at 452. The 199 0 version of the Act only forbade businesses f rom “requir[ ing ] the cardholder,

as a condition to accepting the credit card, to provide personal identification information . . . .” Pineda , 51 Cal. 4th at 535. I t did not ex plicitly prohibit “requests” for such information. Thus, at least in 1990, the L eg islature’s intent was “to protect

consumers

. . . [ b y ] prohibit[ ing ] businesses from ‘requiring information that merchants, banks o r c r e dit card companies do not require or need.’” I d

. T h e 1 990 version o f the A ct appears to have b e e n aimed at preventing retailers from collecting personal information under the false pretense that the information was required to complete a credit card transaction. This provides some support for interpreting the Act to prohibit only those re q u ests for PI I that consumers could reasonably construe as a condition to pay ment by credit card.

However, “[ i] n 1991, the provision was broaden ed, forbidding businesses from ‘ request[ing]
, or requir[ ing ] as aD A V I S V

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c o n d i tion to accepting the credit card

. . . , the cardholder to provide p e r s onal identification information

. . . .’” Id

. The 1991 amendment was int e nded to “prevent[ ] a retailer from making an end-run around the law by c laiming the customer furnished personal identification data ‘voluntarily ,’” and “to prevent r etailers from ‘ r equesting ’ personal identification information and then matching it with the consumer’s credit card number.” Florez
, 108 Cal. App. 4th a t 453. I f t h ese

were indeed the p u rposes of t he 1991 amendment, it would be somewhat unusual if the Ac t o nly prohibited pre-tender requests, since post-tender requests w ould also e nable the retailer to match PI I with credit card information.

W e n ote that the leg islative hist ory is also inconclusive
reg arding whether the c lause “as a condition to accepting the credit card as pay

ment” was intende d t o modify “request.” On o n e hand, the Senate Committee o n the J udiciary Analy sis of Assembly B ill No. 1477 ex plained that t h e 1991 b ill “would c larify that persons may neither require nor request,

as a condition to accepting the c redit c a r d
, the taking o r recording of personal identification inf ormation from the cardholder.” Id

. at 451. I f the Act had been drafted this way , the clause beg inning “ as a condition

. . . ” w o uld clearly modify both “require” and “request.” On the other hand, the L eg islative Counsel’s Dig est of the 1991 amendment states: “[ t] his bill would p rovide that the mercha n t in such a transaction may neither req u e st personal identification information, no r require that information as a condition to acceptance of the c ard

. . . . ” I d

. at 453 n.5. This sug g ests that the 1991 Amendment was meant instead to proh i b i t all requests for PI I at the p o int of sale if a customer uses a credit card, because the clause “ request personal identifi c a tion information” is set off by a comma from “nor require that information as a condition to acceptance of the card.”D A V I S V

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B e cause we find no c o ntrolling precedent, a nd becau s e the meaning of the st at u t e is ambig uous, we are uncertain whether the district courts are correctly ap p ly ing California law in construing Song -B everly to require an objective test o f

consumer perceptions. W e therefore respectfully request that the California Supreme Court answer the question described in Part I

.

IV. Adm inistrative Inf orm ation

The Appellant, Ta m m ie Davis, should be deemed the petitio n er if the California Supreme Court a ccepts this request. Cal. R. Ct. 8.548(b)(1).

The names and addresses of counsel are as follows:

Counsel for Plaintiff-Appellant Tammie Davis:

Gene J . Stonebarg er Stonebarg er L a

w, A Professional Corporation 75 I ron Point Circle, Suite 145 F olsom, CA 95630

J ames R. Patterson Patterson L aw Group, A Professional Corporation 402 W

. B roadway , 29th F loor San Dieg o, CA 92101

Counsel for D e f

e n d a n t

- A p p e l l e e Devanlay Retail Group, I nc.:

Matthew R. Orr, Scott R. Hatch, Melinda Evans Call & J e nsen, A Professional Corporation 610 Newport Center Drive, Suite 700 Newport B each, CA 92660D A V I S V

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The clerk of this c o urt shall submit to the California Supreme Cour t , u nder seal of the United States Court o f Appeals for the Ninth Circuit, c opies of a ll relevant briefs a nd

ex c e r p t s o f record, as well as an o rig inal and ten c opies o f this order, with a certificate of service o n the parties. See Cal. R. Ct. 8.548(c), (d).

This c a s e is w ithdrawn from submission. F urther proceeding s before us are stay ed pending the Ca l i f o rnia Supreme Court’s decision. The parties shall notify the clerk of this court within seven d a y s after the California Supreme Court accepts or declines this request, a nd ag ain within seven day s if the California Supreme Court issues a decision. The panel retains jurisdiction over further proceeding s.

IT IS SO ORDERED.