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MARINA SIMONOFF v. KAPLAN

November 29, 2010

MARINA SIMONOFF, : PLAINTIFF,
v.
KAPLAN, INC., DEFENDANT.



The opinion of the court was delivered by: McKENNA, D.J.

MEMORANDUM AND ORDER

This action was brought by Marina Simonoff against Kaplan, Inc., alleging that Kaplan willfully 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 include on customers' receipts. Simonoff, who made an online, credit card purchase of a book from Kaplan, argues that Kaplan violated Section 1681c(g) by including the expiration date of her credit card in the purchase confirmation e-mail Kaplan e-mailed her following her purchase. 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. This Court finds that Kaplan's proposed interpretation of Section 1681c(g)--interpreting the Section as applying only to receipts that merchants print out on paper--is objectively reasonable and therefore grants Kaplan's motion to dismiss.

I. BACKGROUND

On June 22, 2009, Plaintiff Simonoff received from Defendant Kaplan an e-mail confirmation for a book she had purchased from the company online via credit card. The e-mail confirmation displayed the expiration date of her credit card.1 (Compl. ¶ 18.)

II. DISCUSSION

A. Standard of Review

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 plaintiff's favor." In re Parmalat Sec. Litig., 501 F. Supp. 2d 560, 572 (S.D.N.Y. 2007) (citing Levy v.

1Kaplan contends that the e-mail sent to Simonoff was an "e-mail confirmation," not a "receipt." (Def.'s Mem. at 2.) For purposes of this Memorandum and Order, this Court will not distinguish between these two terms and will use them interchangeably.

Southbrook Int'l 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 (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. It provides:

(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 the sale or transaction.

15 U.S.C. § 1681c(g)(1) (2009).

The remaining subsections of 1681c(g), which are relevant in interpreting which types of receipts Section 1681c(g) covers, provide:

(2) Limitation This subsection shall apply only to receipts that are electronically printed, and shall not apply to transactions in which the sole means of recording a credit card or debit card account number is by handwriting or by an imprint or copy of the card.

(3) Effective date This subsection shall become effective-(A) 3 years after December 4, 2003, with respect to any cash register or other machine or device that electronically prints receipts for credit card or debit card transactions that is in use before January 1, 2005; and

(B) 1 year after December 4, 2003, with respect to any cash register or other machine or device that electronically prints receipts for credit card or debit card transactions that is first put into use on or after January 1, 2005. § 1681c(g)(2-3).

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 section, the costs of the action together with reasonable attorney's fees as determined by the court. . . . .

15 U.S.C. ยง 1681n (2009). Simonoff does not claim actual damages and seeks only the statutory damages of $100 to $1,000 ...


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