Payless Moves to Dismiss ZIP Code Class Action Lawsuit

A woman who provided her ZIP code to a Payless Shoesource store clerk cannot seek damages based on violations of the Massachusetts Unfair Trade Practices Act, the company argued in a recent motion to dismiss a putative class action lawsuit alleging that the collection of customers’ personal identifying information is illegal.

Without focusing on the statute in question, the defense wrote that the proposed class action lawsuit cannot continue because plaintiff Erin Alberts wrote a demand letter alleging violations on behalf of another plaintiff. Payless reportedly responded to that letter and Alberts’ attorney switched plaintiffs without notifying the retailer.

If the class action lawsuit were to continue, however, Payless lawyers argue that company practices and the actions it took do not constitute violations of the Unfair Trade Practices Act. They noted a state Supreme Judicial Court decision regarding a separate class action lawsuit that held that ZIP codes are an example of personal identification information and that paper and electronic records can constitute “credit card transaction form” under the terms of the statute.

However, Payless argues that its request for information including ZIP codes occur prior to the actual sale transaction, and that it uses separate software programs to store any personal information used for marketing and other services separately from information required to process any credit card transactions. According to company policy, customers can refuse to provide information including ZIP codes, and a sales associate will close the marketing software and open up the payment processing application.

Even if it did not have these policies in place, Payless also alleged that Alberts had not pled a sufficient injury. The company alleges that it does not sell personal identifying information to any third parties except those to which it outsources its direct mail programs. Further, the sole communication using that information was a single email, according to the retailer’s records. Those two situations are reportedly the only way for consumers to obtain damages based on the decision of the state Supreme Judicial Court.

According to the company’s attorneys, the legal representatives for the plaintiff have filed at least 10 similar class action lawsuits, including at least one other where Alberts is a named defendant. This is important, they note, because the Payless ZIP code class action lawsuit is similar to one citing California statutes regarding credit card transactions which are worded differently than those of Massachusetts.

The plaintiffs are represented by Alexander Ilya Shapoval and Joseph J. Siprut of Siprut PC.

The Payless ZIP Code Class Action Lawsuit is Erin Alberts, et al. v. Payless Shoesource Inc., Case No. 13-cv-12262, U.S. District Court, District of Massachusetts.

Have you been asked to provide your ZIP code during a debit or credit card transaction at a California or Massachusetts store? You may be eligible to participate in a class action lawsuit and pursue compensation. See if you qualify for free at the Merchant ZIP Code Class Action Lawsuit Investigation.

All class action and lawsuit news updates are listed in the Lawsuit News section of Top Class Actions