Kivo v. Blumberg Exelsior, Inc.

982 F. Supp. 2d 217, 2013 WL 6064229, 2013 U.S. Dist. LEXIS 163787
CourtDistrict Court, E.D. New York
DecidedNovember 16, 2013
DocketNo. 13-CV-4170 (ADS)(AKT)
StatusPublished
Cited by5 cases

This text of 982 F. Supp. 2d 217 (Kivo v. Blumberg Exelsior, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kivo v. Blumberg Exelsior, Inc., 982 F. Supp. 2d 217, 2013 WL 6064229, 2013 U.S. Dist. LEXIS 163787 (E.D.N.Y. 2013).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On July 23, 2013, the Plaintiff Melissa Kivo (the “Plaintiff’) commenced this action on behalf of herself and a putative class, alleging that the Defendant Blumberg Excelsior, Inc. (the “Defendant”) violated Section 1681c(g) of the Fair and Accurate Credit Transactions Act of 2003 (FACTA), which requires that merchants truncate the credit card information they [219]*219include on customers’ receipts. The Plaintiff, who made an online, credit card purchase from the Defendant, contends that the Defendant violated Section 1681c(g) by including the expiration date of her credit card in the computer-generated receipt that was mailed to her. She argues that she is therefore entitled to statutory damages under FACTA Section 1681n.

“Section 1681n, however, only provides for liability where the merchant’s noncompliance is willful, and the Supreme Court has held that a merchant is not in willful noncompliance when the merchant’s interpretation of the statute is objectively reasonable.” Simonoff v. Kaplan, Inc., 10 CIV. 2923CLMM), 2010 WL 4823597, at *1 (S.D.N.Y. Nov. 29, 2010). This Court finds that the Defendant’s proposed interpretation of Section 1681c(g) — interpreting the Section as applying only to receipts that result from in-person transactions — is objectively reasonable and thus grants the Defendant’s motion to dismiss.

I. DISCUSSION

A. Legal Standard

A complaint should be dismissed if it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “In deciding a motion to dismiss, the Court ordinarily accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiffs favor.” In re Parmalat Sec. Litig., 501 F.Supp.2d 560, 572 (S.D.N.Y.2007) (citing Levy v. Southbrook Inti Invs., Ltd., 263 F.3d 10, 14 (2d Cir.2001)). However, “the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

B. The Relevant FACTA Sections: 1681c(g) and 1681n

FACTA was passed in 2003 as an amendment to the Fair Credit Reporting Act (FCRA). Fair and Accurate Credit Transactions Act of 2003, Pub.L. No. 108-159, § 1, 117 Stat.1952, 1952 (2003). “FACTA Section 1681c(g) imposes restrictions on the disclosure of credit and debit card information by those who accept the cards for business transactions.” Simonoff, 2010 WL 4823597, at *1. In pertinent part, Congress provided:

Truncation of credit card and debit card numbers.
(1)In general
Except as otherwise provided in this subsection, no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of sale or transaction.

15 U.S.C. § 1681e(g) (emphasis added). FACTA Section 1681n outlines civil liability for willful noncompliance with FACTA sections, including Section 1681c. It provides in relevant part:

Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of—
(1) (A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000, whichever is greater;
(2) such amount of punitive damages as the court may allow; and
(3) in the case of any successful action to enforce any liability under this sec[220]*220tion, the costs of the action together with reasonable attorney’s fees as determined by the court.

15 U.S.C. § 1681n (2009). Here, the Plaintiff does not claim actual damages and seeks only the statutory damages of $100 to $1,000 per violation.

C. The Defendant’s Proposed Interpretation of Section 1681c(g) and The Defendant’s Argument of Objective Reasonableness

The Defendant argues that Section 1681c(g) does not apply to confirmations or receipts it sends by mail to its customers because such documents are not provided to the customer “at the point of sale or transaction.” Further, the Defendant argues that any purported violations of Section 1681c(g) were not willful and thus the company is not liable under Section 1681n.

D. Is the Defendant’s Interpretation of Section 1681c(g) is Objectively Reasonable?

This Court finds that the Defendant’s reading of Section 1681c(g) is objectively reasonable, and thus the Defendant cannot be held liable under Section 1681n for a willful violation of FACTA. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 68-71,127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). This finding makes it unnecessary to resolve the merits of the Defendant’s interpretation of Section 1681c(g).

1. Safeco’s Holdings

The scope of the term “willfulness” in the FCRA statute was discussed by the Supreme Court in Safeco. In that case, consumers sued insurers for violation of FCRA § 1681m(a), which requires that notice be provided to any consumer subjected to “adverse action ... based in whole or in part on any information contained in a consumer [credit] report.” Safeco, 551 U.S. at 52, 127 S.Ct. 2201. The Safeco Court held that “willful” noncompliance with FCRA includes both knowing and reckless noncompliance. Id. Also, the Court held that a regulated entity cannot be in willful noncompliance when its interpretation of the statute is “not objectively unreasonable ...” and explained that “a company subject to FCRA does not act in reckless disregard of it unless the action is not only a violation under a reasonable reading of the statute’s terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.” Id. at 68-70,127 S.Ct. 2201.

“Courts have specifically held that defendants’ Safeco based arguments regarding the reasonableness of their statutory interpretation are grounds upon which to grant a motion to dismiss.” Simonojf, 2010 WL 4823597, at *3; see King v. MovieTickets.com, Inc.,

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982 F. Supp. 2d 217, 2013 WL 6064229, 2013 U.S. Dist. LEXIS 163787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kivo-v-blumberg-exelsior-inc-nyed-2013.