TJX Companies, Inc. v. Superior Court sets "limits" on class actions under Song-Beverly Credit Card Act of 1971

The Song-Beverly Credit Card Act of 1971 (Civ. Code, § 1747 et seq.), in simplistic terms, protects credit card holders in a variety of ways, including limiting liability for billing errors or unauthorized usage.  In addition, the Act regulates conduct of merchants accepting credit card payments for transactions.  The California Legislature has declared that the Act is intended to mirror provisions in the federal Truth in Lending Act.  (Civ. Code, § 1747.01.)

Some of the protections available under the Song-Beverly Credit Card Act have just been limited or clarified, depending upon your point of view.  In TJX Companies, Inc. v. Superior Court (May 22, 2008) ___ Cal.Rptr.3d ___, the Court of Appeal (Fourth Appellate District, Division Three) construed portions of Civil Code section 1747.08, which provides, in part:

Except as provided in subdivision (c), no person, firm, partnership, association, or corporation that accepts credit cards for the transaction of business shall do any of the following:

(1) Request, or require as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to write any personal identification information upon the credit card transaction form or otherwise.

(2) Request, or require as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to provide personal identification information, which the person, firm, partnership, association, or corporation accepting the credit card writes, causes to be written, or otherwise records upon the credit card transaction form or otherwise.

(3) Utilize, in any credit card transaction, a credit card form which contains preprinted spaces specifically designated for filling in any personal identification information of the cardholder.

The Court of Appeal, hearing Petitions for Writs of Mandate, was asked to (1) determine whether a one-year statute of limitation applied to the penalty provisions in section 1747.08, and (2) determine whether section 1747.08 applied to return transactions.

First, the Court of Appeal held that the mandatory language in section 1747.08 rendered the penalties under that section mandatory.  As a consequence the one-year statute of limitation set forth in Code of Civil Procedure section 340 governed the matter, rather than the three-year statute of limitation set forth in Code of Civil Procedure section 338.

Second, the Court of Appeal, construing the language of section 1747.08, determined that the statute was clearly intended to govern initial credit card transactions, not returns that might follow after such transactions.  The Court specifically noted the merchant's need to protect against fraudulent returns as a policy basis supportive of its construction of the Legislative intent.

I routinely see decision like TJX described as "limiting" or "expanding" a particular statutory or regulatory system.  For example Privacy Law Blog said:

“On May 22, 2008, the California Court of Appeal narrowed the scope of claims available under California’s Song-Beverly Credit Card Act of 1971, California Civil Code § 1747.08, ruling that the statute is subject to the one-year statute of limitations of Code of Civil Procedure section 340 and does not apply to merchandise returns.

(Tanya Forsheit, No Shopping Spree for Plaintiffs Under California's Song-Beverly Credit Card Act (May 26, 2008) privacylaw.proskauer.com.)  But is this really accurate?  The TJX decision was a question of first impression.  Did the Court of Appeal "narrow" anything?  I don't think anybody had a definitive answer as to which was the applicable statute of limitation.  You wouldn't need a Writ to find out if it was so clear, would you?  Textual descriptions of this sort seem more useful as a barometer of the author's bias, rather than as an analysis of the outcome.  Editorial characterizations of this ilk are more likely to have some significance if, for example, a number of Courts of Appeal construe a law in one way over many years, after which the Supreme Court weighs in and reverses those decisions.  Then it seems fair to say the the Supreme Court "limited" or "expanded" a particular understanding of the law.

As for questions of first impression about the reach of a particular statute, use commentaries about the decision to guage whether the commenter is "reporting" or just writing an op-ed piece for their constituency.  It's not my intention to single out Proskauer on this issue.  Commentary like this is pandemic to the blawgosphere (there I go, using that horrific term).  I'm sure I'm guilty.  But it's no secret that the consuming audience for Proskauer's perspective isn't your average plaintiff's attorney.

So long as you know where an author is coming from, bias can be useful.  It is a good thing to have a variety of perspectives expanding the public dialog.  Just be careful that bias in analysis doesn't unintentionally create an impression of change where none actually occurred.

UPDATE:  Class Action Defense Blog has a very thorough post analyzing TJX.