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Case 1:11-cv-10920-WGY Document 21 Filed 01/06/12 Page 1 of 31 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS MELISSA TYLER on behalf of herself and all others similarly situated, Plaintiffs, v CIVIL ACTION NO. 11-10920-wey MICHAELS STORES, INC. Defendants. MEMORANDUM AND ORDER YOUNG, D.J. January 6, 2012 I. INTRODUCTION [Flor all its faults, the civil justice system remains a remarkable achievement. It is there that an individual who is injured, neither wealthy nor well connected, can hail a powerful adversary into court on equal footing and ask the court to hold it accountable for its wrongful conduct. Only in an American courtroom — not in legislative chambers or executive suites — can an individual seek full redress, standing at the bar on an equal basis with a powerful and influential adversary. The political and economic advantages that one might enjoy in other arenas dissolve in the courtroom. That [is] something that we should not ever look to give up. Robert S. Peck, Emerging Civil Justice Issues (Dec. 5, 2010), in 7. J.L. Econ. & Polty 195, 195-96 (2010). Here, a dispute between a determined shopper and a multistate retail chain gives rise to a case of first impression. Case 1:11-cv-10920-WGY Document 21 Filed 01/06/12 Page 2 of 31 The issue is one of construction of a Massachusetts statute, a matter of law. Melissa Tyler (“Tyler”) brings this suit against Michaels Stores, Inc. ("Michaels") for violation of Massachusetts General Laws, chapter 93, section 105(a) (the “Act” or “Section 105 (a) Tyler has sued on behalf of herself and a putative class, claiming that Michaels illegally requested customers’ ZIP codes when processing their credit card transactions in violation of the Act. She brings a three count complaint alleging that the violation of the Act amounted to a per se violation of Massachusetts General Laws, chapter 93A, section 9, caused unjust enrichment, and entitles Tyler to declaratory relief pursuant to 28 U.S.C. S$ 2201-2202. Michaels has filed a motion to dismiss the complaint in its entirety, which motion is presently before this Court. Michaels argues that Tyler has failed to plead a violation of the Act, allege a legally cognizable injury, and assert facts sufficient to establish unjust enrichment or to warrant declaratory relief. Michaels denies that customers’ ZIP codes constitute “personal identification information” or that the retailers’s electric credit card terminal creates a “credit card transaction form” as those phrases are used in the Act. A. Procedural Posture Tyler filed a putative class action on May 23, 2011 against Michaels. Class Action Compl. (“Compl.”), ECF No. 1 Case 1:11-cv-10920-WGY Document 21 Filed 01/06/12 Page 3 of 31 Subsequently, on duly 22, 2011, Michaels filed the present motion to dismiss. Def.’s Mot. Dismiss (“Michaels’ Mot.”), ECF No. 9 On September 2, 2011, Tyler filed her memorandum in opposition to Michaels’ motion to dismiss. Mem. L. Opp’n Def.’s Mot. Dismiss (Tyler's Mem."), ECF No. 15. On September 16, 2011, Michaels filed its reply memorandum. Reply Supp. Def.’s Mot. Dismiss, ECF No. 17. On September 30, 2011, Tyler filed her sur-reply. sur- Reply Opp’n Def.’s Mot. Dismiss Compl. ("Sur-Reply”), ECF No. 18 This Court heard oral arguments on the motion on October 20, 2011. Michaels’ motion to dismiss is presently before this court. B. Factual Allegations On several occasions during the past year, Tyler made credit card purchases at Michaels in Everett, Massachusetts, at which she was asked to provide her ZIP code number. Compl. 7 6. tyler provided the information, under the mistaken impression that she was required to do so to complete the transaction. Id. 11 6, 20. Tyler alleges that Michaels’ employees entered her and other customers’ ZIP codes on the computerized check-out register used to process the point-of-sale transaction. Id. | 20. The cash register created an electronic “form” containing the credit card number, the card holder's name, and ZIP code. Id. 41 7, 20 The credit card issuer did not require Michaels to request its customers’ ZIP codes to process their transactions, id. 9 1,