United States District Court, E.D. New York
MEMORANDUM OF DECISION AND ORDER
LaSHANN DeARCY HALL, UNITED STATES DISTRICT JUDGE.
Plaintiff
Omar Bhutta brings the instant action against Defendant
Vanchoc Transport, Inc. (“Vanchoc”) for willful
violation of the Fair and Accurate Credit Transactions Act
(“FACTA”). Defendant moves pursuant to Federal
Rule of Civil Procedure 56 for summary
judgment.[1]
UNDISPUTED
FACTS[2]
On
February 9, 2015, Plaintiff rented from Defendant a Mercedes
Sprinter van for one day at a cost of $272.19. (Pl.'s
56.1 Statement Resp. ¶ 1, ECF No. 29.) Plaintiff used an
American Express credit card to pay for the rental.
(Id. ¶ 3.) Vanchoc used Intuit QuickBooks
Payments, an independent secure online payment service, to
process Plaintiff's credit card. (Id. ¶ 4.)
Vanchoc contends, and Plaintiff disputes, that Vanchoc also
used Intuit QuickBooks Payments to simultaneously email to
Plaintiff a receipt of the transaction, which truncated
Plaintiff's credit card information and did not include
the expiration date of Plaintiff's credit card.
(Id. ¶¶ 5-6; Def.'s Ex. C, ECF No.
28-4.) At the time Plaintiff completed his rental
transaction, Vanchoc delivered to Plaintiff a rental
agreement for the van, which included Plaintiff's full
credit card number and expiration date. (Pl.'s 56.1
Statement Resp. ¶¶ 7-8.)
STANDARD
OF REVIEW
Summary
judgment must be granted when there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
accord Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). A genuine dispute of material fact exists
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. At summary judgment, the
movant bears the initial burden of demonstrating the
“absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
accord Feingold v. New York, 366 F.3d 138, 148 (2d
Cir. 2004). Where the non-movant bears the burden of proof at
trial, the movant's initial burden at summary judgment
can be met by pointing to a lack of evidence supporting the
non-movant's claim. Celotex Corp., 477 U.S. at
325.
Once
the movant meets that burden, the non-movant may defeat
summary judgment only by producing evidence of specific facts
that raise a genuine issue for trial. See Fed. R.
Civ. P. 56(c); Anderson, 477 U.S. at 248; Davis
v. New York, 316 F.3d 93, 100 (2d Cir. 2002). The court
is to view such facts in the light most favorable to the
non-movant, drawing all reasonable inferences in his or her
favor. Anderson, 477 U.S. at 255. To survive summary
judgment, the non-movant must present concrete evidence and
rely on more than conclusory or speculative claims. Quinn
v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445
(2d Cir. 1980) (“The litigant opposing summary judgment
. . . may not rest upon mere conclusory allegations or
denials as a vehicle for obtaining a trial.”).
DISCUSSION
Congress
passed FACTA in 2003 as an amendment to the Fair Credit
Reporting Act (“FCRA”). See Pub. L. No.
108-159, 117 Stat. 1952 (2003). Section 1681c(g)(1) of FACTA
restricts the display of credit and debit card numbers by
requiring that these numbers be truncated on any receipt
provided to customers. 15 U.S.C. § 1681c(g)(1).
Specifically, Section 1681c(g)(1) states that “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.” Id.
I.
Whether Defendant Violated FACTA
Defendant
argues that it did not violate FACTA because the only
“receipt” issued in Plaintiff's transaction
was emailed to Plaintiff and properly truncated his credit
card number in compliance with the Act's requirements.
(Def.'s Mot. for Pre-Mot. Conf. (“Def.'s PMC
Mot.”) at 3, ECF No. 26.) There is no dispute that the
emailed receipt truncated Plaintiff's credit card
information. (Def.'s Ex. C.) However, this fact is of no
legal consequence because FACTA does not apply to the emailed
receipt.
Under
FACTA, the truncation requirements apply “only to
receipts that are electronically printed . . . .” 15
U.S.C. § 1681c(g)(2). That is, paper receipts provided
at the point of sale. Simonoff v. Kaplan, Inc., No.
10-CV-2923 (LMM), 2010 WL 4823597, at *8 (S.D.N.Y. Nov. 29,
2010) (“the majority of federal district courts, as
well as the Seventh Circuit Court of Appeals, have concluded
that the term ‘electronically printed' covers only
paper receipts”); see also Kivo v. Blumberg
Exelsior, Inc., 982 F.Supp.2d 217, 223 (E.D.N.Y. 2013)
(stating that “a number of federal circuit and district
court decisions support the idea that subsection 1681c(g)(1)
presumes an in-person transaction after which a physical
receipt is provided from a merchant to a customer” and
finding the defendant's belief that FACTA did not apply
to mailed receipt confirmations was incorrect, but not
objectively unreasonable); Shlahtichman v. 1-800
Contacts, Inc., 615 F.3d 794, 800 (7th Cir. 2010)
(“[T]he overall statutory context of FACTA suggests,
consistent with the ordinary meaning of the word
‘print, ' that the statute is aimed at paper
receipts . . . that are printed and ‘provided to the
cardholder at the point of the sale or
transaction.'”) (quoting 15 U.S.C. §
1681c(g)(1)) (emphasis omitted); Simonoff v. Expedia,
Inc., 643 F.3d 1202, 1207 (9th Cir. 2011)
(“Congress was regulating only those receipts
physically printed by the vendor at the point of sale or
transaction; to apply the statute to receipts that are
emailed to the consumer would broaden the statute's reach
beyond the words that Congress actually used.”
(citations omitted)). Further, FACTA's use of the term
“point of sale” contemplates “in-person
transaction[s] after which a physical receipt is provided
from a merchant to a customer.” Kivo, 982
F.Supp.2d at 223 (citing Simonoff, 643 F.3d at 1210;
Shlahtichman, 615 F.3d at 800). Accordingly, the
emailed receipt does not fall within the scope of FACTA.
Defendant's
argument that the rental agreement does not fall within the
ambit of FACTA is equally unavailing, as contrary to
Defendant's assertion, it is indeed a receipt.
Admittedly, the term “receipt” is not defined in
FACTA. See 15 U.S.C. § 1681c. Likewise, no
court in the Second Circuit has interpreted this term under
the statute. Courts in other circuits have, however,
interpreted the term and have applied its common meaning:
“[a] written acknowledgment that something has been
received.” Receipt, Black's Law
Dictionary (10th Ed. 2014). In assessing whether a given
document can be deemed a receipt, these courts have looked to
the type of information typically incorporated in such
documents, including: “the merchant, the customer, the
date (and even time) of the sale, the amount of the payment
received from the customer, and even the specific goods
purchased.” Todd v. Target Corp., No.
10-CV-05598, 2012 WL 1080355, at *2 (N.D. Ill. Mar. 30, 2012)
(finding that merchant copies, although not called
“receipts, ” fit the common meaning of the term
and identified the information acknowledging the
transaction”); see also Kelleher v. Eaglerider,
Inc., No. 09 C 5772, 2010 WL 4386837, at *4 (N.D. Ill.
Oct. 28, 2010), as corrected (Nov. 10, 2010)
(finding that “Rental In” and “Rental
Out” forms constituted receipts under FACTA, even
though they were not called “receipts, ” because
they contained the same information as the actual receipt and
were provided to the customer when he picked up and dropped
off his rental).
Here,
the rental agreement contains contractual terms governing the
rental of the van and the relationship between Plaintiff and
Defendant. (See generally Def.'s Ex. A, ECF No.
28-2.) Specifically, the terms address the “Nature of
Agreement/Vehicle Repairs/Warranty Disclaimer”;
“Responsibility for Vehicle
Condition/Return/Repossession”; “Loss of Use or
Damage to Vehicle/Collision Damage Waiver”;
“Prohibited Uses of Vehicle”;
“Responsibility for Property in Vehicle”;
“Payment of Charges”; “Computation of
Charges”; “Third Party Liability
Protection”; “Reporting of Accidents and Parking
or Traffic Violations”; as well as “Parking and
Traffic Violations.” (Id.) Further, terms
typically found in contracts, such as provisions regarding
assignment or transfer of the agreement or vehicle,
...