Diviacchi v. Speedway LLC
109 F. Supp. 3d 379
D. Mass.2015Background
- Plaintiff Carolyn Diviacchi regularly bought gas at a Hess station and was required to enter her ZIP code at the pay-at-the-pump terminal when using a credit card.
- Diviacchi sued Hess under Mass. Gen. Laws ch. 93, §105 (privacy provision) and ch. 93A §9 (consumer protection) seeking injunctive relief to stop ZIP-code collection; she dismissed her damages claim before trial.
- Evidence (stipulated affidavits) showed ZIP codes are entered at the pump, held only in volatile memory, transmitted to the processor (First Data) and issuer for AVS (address verification), and are not recorded or retained by Hess.
- Hess introduced evidence that AVS and ZIP entry are used for fraud prevention, reduce fraud substantially, and are industry "best practices"; Hess does not use or sell ZIP data for marketing.
- The parties disputed (1) whether a plaintiff must show a separate, concrete injury to obtain injunctive relief under Chapter 93A and (2) whether Hess’s transient handling of ZIPs falls within §105’s ban on writing personal identification information on the credit-card transaction form.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether injunctive relief under §105/Ch.93A is available absent separate concrete injury | Leardi allows injunctions for invasion of a legal right even without separate injury; Tyler limited only damages | Tyler and subsequent SJC cases require a distinct injury for Chapter 93A relief; §9 refers to injured persons | Court: Injunctive relief may be pursued under §105 absent a separate injury; Tyler overruled Leardi only as to damages |
| Whether §105 applies where ZIP code is only in volatile memory and not recorded on the transaction form | ZIP transmission could be intercepted or later recorded; statute protects privacy from collection/transmission | §105 forbids writing personal ID info on the transaction form; ZIPs are never written/retained, only transiently held for AVS/fraud prevention | Court: §105 proscribes recording/writing of personal ID info; Hess’s practice falls outside §105 because ZIPs are not recorded |
| Standing to seek an injunction when plaintiff could avoid future collection (shop elsewhere or pay cash) | Plaintiff has longstanding patronage and preference for card use; avoiding defendant or using cash imposes burdens and shouldn't defeat standing | Plaintiff can avoid alleged harm by not patronizing or by paying cash, so lacks future-injury standing | Court: Plaintiff has standing; longstanding use and realistic burden of alternatives support likelihood of future exposure |
| Whether Hess used ZIPs for marketing or sold data (relevant to §105/Tyler injury theories) | Plaintiff did not allege receipt of marketing or sale; suggested possibility of downstream misuse | Hess presented affidavits denying marketing use or sale; no evidence of misuse | Court: No evidence Hess used or sold ZIPs; plaintiff did not suffer Tyler-identified injuries (marketing or sale) |
Key Cases Cited
- Leardi v. Brown, 394 Mass. 151 (S.J.C. 1985) (recognized that statutory invasion of a legal right can support nominal damages absent other harm)
- Tyler v. Michaels Stores, Inc., 464 Mass. 492 (S.J.C. 2013) (ZIP code qualifies as personal identification information under §105; damages under Ch.93A require a distinct injury arising from the unfair practice)
- Bellermann v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43 (S.J.C. 2014) (cites Tyler for requirement that injury be a separate, identifiable harm)
- Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813 (S.J.C. 2014) (discusses Tyler and notes statutory nominal damages in absence of actual damages)
- Rule v. Fort Dodge Animal Health, Inc., 607 F.3d 250 (1st Cir. 2010) (analyzes SJC jurisprudence on Leardi and suggests SJC should define any Leardi exceptions)