Wasted money.
Plaintiff files a putative class action against Brookstone claiming that it illegally recorded ZIP codes on credit card receipts. Defendant files a demurrer and prevails, with the trial court following a recent Court of Appeal decision (Party City) holding that ZIP codes (unlike telephone numbers) don't entail "personal identification" under the relevant statute. Plaintiff appeals.
Then, in February 2011, the California Supreme Court decides a case that expressly repudiates Party City and holds that ZIP codes are indeed personal information subject to the statute. It's a case on all fours with the present appeal. The California Supreme Court also holds that this is the "only reasonable interpretation" of the statute.
Does Brookstone abandon its appeal in light of this clear authority? No. It instead argues that the California Supreme Court's decision should only be given prospective, rather than retrospective, effect.
This argument is silly. It had a zero percent probability of success. Decisions are usually given retrospective effect. And the fact that the Court held that the only reasonable interpretation of the statute was the one that it adopted is the nail in the coffin. Defendant's argument that they "relied" on Party City is both a nonstarter at a doctrinal level (you can't generally rely on intermediate authority to avoid the retrospective decision of a higher court) as well as on the facts here, since plaintiff filed her complaint before the decision in Party City was issued and accordingly sought relief for conduct that couldn't have been founded upon a decision that had not yet even been rendered.
It's a fee-shifting case. It's a case (like the vast majority of them) where you also have to pay your own lawyers. Smart counsel should know not to spend good money after bad. Here's a perfect example.
Sometimes defeat is inevitable. When it is, retreat. Don't waste time and money on arguments that have no chance of success.
