United States District Court, D. Massachusetts
OPINION AND ORDER
GEORGE A. O'TOOLE, Jr., District Judge.
This case arises from The Gap, Inc.'s ("The Gap") alleged policy to request and record customer zip codes concurrent with credit and/or debit card purchases for the purpose of mailing customers unsolicited marketing materials. The plaintiff, Molly Karp, brings this action on behalf of herself and all other persons similarly situated. The plaintiff asserts that The Gap's practices have violated Massachusetts General Laws Chapter 93, Section 105(a), which prohibits businesses from requesting personal identification information that is not required by the credit card issuer and recording it on a credit card transaction form (Count III). The plaintiff also asserts claims for declaratory relief (Count I) and unjust enrichment (Count II).
The Gap moves to dismiss, claiming that: (1) the plaintiff failed to allege that her zip code was actually recorded on the transaction form; (2) the plaintiff failed to allege specific facts regarding her claimed injury by reason of receipt of unwanted marketing materials; and (3) the plaintiff failed to assert a causal connection between the provision of her zip code and her receipt of unwanted marketing material.
II. Legal Standard
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must state facts sufficient to raise a right to relief above the speculative level such that the claim is plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). Conclusory allegations and a mere recitation of the elements constituting the cause of action, unsupported by facts, are insufficient. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly , 550 U.S. at 555). In evaluating a Rule 12(b)(6) motion to dismiss, the court must take the factual allegations in the complaint as true. Ashcroft , 556 U.S. at 678.
The Complaint alleges in relevant part:
13. When Ms. Karp was making a purchase at The Gap using a Visa credit or debit card, a Gap employee asked Ms. Karp to provide her zip code. She was not informed that her zip code was being requested for marketing purposes. She provided it believing that it was required to complete her transaction.
14. Ms. Karp subsequently received unsolicited and unwanted marketing material.
15. The Gap has a policy of automatically requesting a customer's zip code in all credit or debit card transactions, and recording the zip code electronically in connection with the transaction. This information is not required for verification by the card issuer.
16. The Gap has a policy of using its customers' zip codes, and information obtained from third party databases, inter alia, to send marketing materials to customers.
(Compl. ¶¶ 13-16 (dkt. no. 1-3).)
A. Violation of Massachusetts General Laws Chapter ...