Federal Court Allows Chapter 93A Claims Based On Unwanted Marketing Emails To Proceed

The United States District Court for the District of Massachusetts recently denied a motion to dismiss in Carr v. BG Retail, LLC & Caleres, Inc., a putative class action challenging Famous Footwear's online checkout process. The plaintiff alleged that Famous Footwear violated the Massachusetts Privacy in Commercial Transactions Act (CPICTA), G. L. c. 93, § 105, and Massachusetts General Laws c. 93A when it required customers paying by credit card to provide an email address during the online checkout process, which the company then allegedly used to send unsolicited marketing emails to customers.

Relevant here, CPICTA prohibits businesses that accept credit cards from writing, causing to be written, or requiring a cardholder to write personal identification information not required by the card issuer on a credit card transaction form, except where necessary for shipping, delivery, installation, or a warranty. The central dispute, according to the district court, was whether the allegations in the complaint demonstrated a distinct injury separate and apart from the statutory violation itself as required by Tyler v. Michaels Stores, Inc., 464 Mass. 492 (2013). Plaintiff's specific allegations of concrete harms, including nuisance, wasted time, displacement of important messages, and consumption of email storage space were sufficiently objective to be plausible at the pleading stage. Those alleged concrete harms were causally linked to defendants' use of plaintiff's email address. These objective consequences were not merely a subjective sense of diminished value or a generalized belief of having "gotten a bad deal," and were therefore sufficient to withstand a motion to dismiss. Whether the shipping and delivery exemption applied or whether an email field is part of a credit card transaction form covered by the CPICTA were factual issues not resolvable on a motion to dismiss.

The court similarly allowed plaintiff claims that defendant engaged in unfair and deceptive acts by not meaningfully disclosing the marketing purpose of the emails and not providing consumers with a genuine ability to opt out of receiving them. Although defendants had disclosure language on the checkout page stating that providing an email address constituted consent to receive marketing communications, which weighed against "deception," whether the combined presentation had a "tendency to deceive" was also too fact intensive to resolve on a motion to dismiss. Therefore, this claim also survived.

This case serves as a reminder that businesses may wish to conduct regular compliance reviews of their privacy policies, consent forms, and marketing programs. Clear opt-out mechanisms and consistent internal policies may help mitigate litigation risk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.