United States District Court, S.D. New York
KATHLEEN O'SHEA and SANDEEP TRISAL, on behalf of themselves and all others similarly situated, Plaintiffs,
P.C. RICHARD & SON, LLC d/b/a P.C. RICHARD & SON and P.C. RICHARD & SON, INC. d/b/a P.C. RICHARD & SON, Defendants.
OPINION AND ORDER
KATHERINE POLK FAILLA United States District Judge.
Kathleen O'Shea and Sandeep Trisal bring this class
action against Defendants P.C. Richard & Son, LLC and
P.C. Richard & Son, Inc., for violations of the Fair and
Accurate Credit Transactions Act of 2003, 15 U.S.C.
§§ 1681-1681x (“FACTA”). Plaintiffs
O'Shea and Trisal each allege that upon making a purchase
at one of Defendants' locations, Defendants printed on
their receipts the expiration dates of their debit and credit
cards, respectively, in violation of 15 U.S.C. §
have moved to dismiss Plaintiffs' First Amended
Complaint, the operative complaint in this case, pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). They
argue that (i) Plaintiffs lack Article III standing because
they allege only a bare procedural violation and no actual
harm or material risk of harm, and (ii) Plaintiffs failed to
allege adequately a willful violation of FACTA. Plaintiffs
oppose the motion, and Plaintiff Trisal seeks leave to file
an amended complaint if the motion is granted.
parties' arguments are impacted significantly by a recent
Second Circuit decision: Crupar-Weinmann v. Paris
Baguette America, Inc., 861 F.3d 76 (2d Cir. 2017). In
light of the holding in that case and for the reasons set
forth below, Defendants' motion to dismiss is granted and
Plaintiff Trisal's request to file a Second Amended
Complaint is denied.
allege that Defendants have willfully and repeatedly violated
FACTA by printing expiration dates on credit and debit card
receipts. (See generally FAC). FACTA provides in
relevant part that “no person that accepts credit cards
or debit cards for the transaction of business shall
print” an improperly truncated receipt - one that
contains more than five digits of the card number or the
expiration date. 15 U.S.C. § 1681c(g). Defendant P.C.
Richard & Son, LLC owns and manages several retail store
locations. (FAC ¶ 11). Defendant P.C. Richard & Son,
Inc. also owns and manages several retail stores and does
business with P.C. Richard & Son, LLC. (Id. at
¶ 12). The two entities collectively use the business
name “P.C. Richard & Son.” (Id.).
after November 17, 2013, Plaintiff O'Shea made a purchase
at one of Defendants' locations and Defendants provided
her with one or more receipts that included the expiration
date of her debit card and the last four digits of her card
number. (FAC ¶ 35). On or about November 2, 2015,
Plaintiff O'Shea's counsel served Defendants with a
cease and desist letter demanding that Defendants end their
FACTA violations. (Id. at ¶ 45). Attached to
the letter was a draft complaint. (Id.).
2, 2016, Plaintiff Trisal received from Defendants a receipt
that “contained, among other things, ” his credit
card's expiration date and the last four digits of his
card number. (FAC ¶ 45). The First Amended Complaint
does not clarify what these “other things” are.
allege that Defendants continued to print expiration dates on
credit and debit card receipts in violation of FACTA until at
least August 17, 2016. (FAC ¶ 45). Plaintiffs also
allege that these FACTA violations were willful because
Defendants (i) “knew of and were well informed about
the law” (id. at ¶ 39); (ii) were
informed by other entities of FACTA's truncation
requirements and the prohibition on expiration dates
(id. at ¶ 40); (iii) knew their electronic
receipt printing equipment was outdated, but forewent the
proper updates to avoid spending the money, time, and other
resources required (id. at ¶ 44); and
(iv) were put on notice of their FACTA violations by
Plaintiff O'Shea's letter and Complaint (id.
at ¶ 45). Plaintiffs further allege that because
Defendants printed their cards' expiration dates on their
receipts, Plaintiffs were exposed to “an increased risk
of identity theft and credit and or debit card fraud, ”
though, significantly and fortunately, neither alleges that
such identity theft or fraud actually occurred. (Id.
at ¶ 51).
case has been significantly impacted by the litigation of
another case initially filed in this District:
Crupar-Weinmann v. Paris Baguette America, Inc., No.
13 Civ. 7013 (JSR) (S.D.N.Y.). During the pendency of this
litigation, the Second Circuit has reviewed
Crupar-Weinmann twice; first in Crupar-Weinmann
v. Paris Baguette America, Inc., 653 F. App'x 81 (2d
Cir. 2016) (summary order) (“Crupar-Weinmann
I”), and again in Crupar-Weinmann v. Paris
Baguette America, Inc., 861 F.3d 76 (2d Cir. 2017)
(“Crupar-Weinmann II”). In brief,
Plaintiff Crupar-Weinmann alleged that Paris Baguette
violated FACTA by issuing a receipt with the full expiration
date of her credit card on it. Crupar-Weinmann I,
653 F. App'x at 81. And, as in the instant case,
Crupar-Weinmann did not allege any actual harm, such as
identify theft or credit card fraud. Id. Crupar-Weinmann
I and II bear directly on the arguments raised
by the parties in this case. Consequently, the Court
considers the instant case's procedural history in light
of both Crupar-Weinmann decisions.
Plaintiffs' Pleading and Crupar-Weinmann
O'Shea filed the original Complaint in this matter on
November 18, 2015, alleging debit card violations of FACTA.
(Dkt. #1). On January 29, 2016, Defendants filed a letter
motion requesting an extension of time to answer the
Complaint in light of the Second Circuit's then-pending
decision in Crupar-Weinmann I. (Dkt. #12).
Defendants' basis for their request was that the decision
in Crupar-Weinmann I would address pleading
standards for willfulness under FACTA and would
“directly impact whether Defendants move to dismiss the
Complaint[.]” (Id. at 1). The Court granted
Defendants' letter motion on February 1, 2016, and stayed
this case pending the Second Circuit's decision in
Crupar-Weinmann I. (Dkt. #13).
Second Circuit issued Crupar-Weinmann I on June 30,
2016. See Crupar-Weinmann v. Paris Baguette America,
Inc., 653 F. App'x 81 (2d Cir. 2016) (summary
order). There, the Second Circuit remanded the case, allowing
Crupar-Weinmann to replead her FACTA claim to meet the
standard recently established by the Supreme Court in
Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), that
plaintiffs alleging statutory violations show concrete injury
to establish Article III standing. Crupar-Weinmann
I, 653 F. App'x at 82.
7, 2016, the parties submitted a joint letter requesting that
the Court lift the stay in this case and stating that
Plaintiff O'Shea would not amend the existing Complaint
despite the concerns Crupar-Weinmann I raised about
concrete injuries and Article III standing. (Dkt. #18). The
Court granted that application in a July 8, 2016 endorsement.
August 11, 2016, Defendants filed a letter announcing their
intention to move to dismiss Plaintiff O'Shea's
Complaint pursuant to (i) Federal Rule of Civil Procedure
12(b)(1) for failure to establish Article III standing and
(ii) Rule 12(b)(6) for failure to state a claim for a willful
violation of FACTA. (Dkt. #24). Plaintiff O'Shea filed a
letter response on August 15, 2016. (Dkt. #27).
conference on August 18, 2016, Plaintiff O'Shea's
counsel informed the Court that he had been retained by
another plaintiff who had received a credit card receipt from
Defendants in May 2016 that violated FACTA, though he did not
identify the plaintiff at that time. (Transcript 3:14-4:3).
O'Shea's counsel then stated his intention to amend
the original Complaint to include credit card violations (at
the time, it included only debit card violations
(see Dkt. #1 at ¶ 33)), to bolster willfulness
allegations, and potentially to add a second plaintiff.
(Transcript 6:3-19). On September 24, 2016, Plaintiffs
O'Shea and Trisal filed the First Amended Complaint,
which included all of these proposed modifications. (Dkt.
Defendants' Motion to Dismiss and Cru ...