August 26, 2015

Supreme Court (sorta) rejects Ninth Circuit request for an answer to a state law question

For the first time in over three years, the Supreme Court today said “no” to a Ninth Circuit request to answer a state law question.  The court denied the request in Davis v. Devanlay Retail Group, Inc.  Before today, the court had granted the last nine requests made by the Ninth Circuit.

Two weeks ago, we noted the court was taking an unusually long time to decide whether to take the Davis case.  (It’s been 112 days since the Ninth Circuit’s request was docketed.)  The court’s order today indicates why there was a delay, and also shows that the court is actually answering the Ninth Circuit’s question even while denying the request.

The court said it’s denying the Davis request “[i]n light of the subsequent opinion in Harrold v. Levi Strauss & Co. (2015) 236 Cal.App.4th 1259.”  The court also today denied review and a depublication request in Harrold.  This is obviously not a coincidence; the court believes the Court of Appeal’s Harrold opinion adequately answers the Ninth Circuit’s question in Davis and didn’t want to tell that to the Ninth Circuit until the end of all appellate proceedings in Harrold.   (The court has summarily “answered” Ninth Circuit questions before, although not quite in this way.)

In Davis, the Ninth Circuit asked:  “Does section 1747.08 of the California Civil Code prohibit a retailer from requesting a customer’s personal identification information at the point of sale, after a customer has paid with a credit card and after the cashier has returned the credit card to the customer, if it would not be objectively reasonable for the customer to interpret the request to mean that providing such information is a condition to payment by credit card?”  The Harrold opinion — from the First District, Division Three — holds that the statute “is violated only if the request is made under circumstances in which the customer could reasonably understand that the email address was required to process the credit card transaction, and . . . such an understanding could not reasonably be conveyed by a request made after the transaction has been concluded.”

 

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