Bhutta v. Vanchoc Transport Inc.

          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, ...