Orcutt et al v. National Baseball Hall of Fame and Museum, Inc. et al

Filing 1

CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL against John Doe 1 thru 10 and National Baseball Hall of Fame and Museum, Inc. (Filing fee $350 receipt number 0206-2137685) filed by Justin Orcutt and Sara Cook. (Attachments: # 1 Civil Cover Sheet)(see)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
BINGHAMTON DIVISION
JUSTIN ORCUTT and SARA COOK,
individually and on behalf of all
others similarly situated,
Plaintiff,

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v.

* Civil Action No.: 6:12-CV-0513
(GTS/TWD)

NATIONAL BASEBALL HALL OF
FAME AND MUSUEM, INC.

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and
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JOHN DOE 1 thru 10,
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Defendants.
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CLASS ACTION COMPLAINT AND
DEMAND FOR JURY TRIAL
Comes now Justin Orcutt and Sara Cook, (“Plaintiffs”) on behalf of
themselves and all others similarly situated and allege as follows:
INTRODUCTION
1.

In 2003, Congress passed and the President signed, the Fair and

Accurate Credit Transactions Act (“FACTA”) to assist in the prevention of identity
theft and credit and debit card fraud. In the statement provided by the President
during the signing of the bill, the President declared that:
This bill also confronts the problem of identity theft. A
growing number of Americans are victimized by criminals who
assume their identities and cause havoc in their financial
affairs. With this legislation, the Federal Government is
1

protecting our citizens by taking the offensive against identity
theft.
2.

A main provision of FACTA (codified as 15 U.S.C. §1681c(g) of the

Fair Credit Reporting Act) provides that:
Truncation of credit card and debit card numbers. (1) In
general. . . . [N]o person that accepts credit cards or debit
cards for the transaction of business shall print more than the
last five digits of the card number or the expiration date upon
any receipt provided to the cardholder at the point of sale or
transaction.
3.

The law gave merchants who accept credit cards and/or debit cards

up to three years to comply with its requirements, requiring compliance with its
provisions no later than December 4, 2006.
4.

On June 3, 2008, the Credit and Debit Card Receipt Clarification Act

of 2007, 15 U.S.C. 1681n(d), became effective. The Clarification Act shielded from
a finding of willful noncompliance with FACTA any business that printed an
expiration date on a cardholder receipt between December 4, 2004, and the
enactment of the Clarification Act (i.e., June 3, 2008).
5.

The Clarification Act did not eliminate the statutory requirement

that card expiration dates not be printed on the cardholder receipts, but instead
created a retroactive safe harbor based upon the belief that the original act was
confusing as to whether card expiration dates were also required to be redacted.
By maintaining the requirement to not print expiration dates, however, the
Clarification Act made clear that liability under FACTA can exist when, as in this
case, a merchant continued to print expiration dates on cardholder receipts after
2

June 3, 2008.
6.

Although Defendant (defined below) had until June 3, 2008, to

comply, Defendant has willfully violated this law and failed to protect Plaintiffs
and others similarly situated against identity theft and credit card and debit card
fraud by continuing to print the credit card expiration on receipts provided to
debit card and credit card cardholders transacting business with Defendant.
7.

Since approximately 2007, the Department of Justice (“DOJ”) has

frequently intervened on behalf of Plaintiffs in private FACTA class actions. In
Papazian v. Burberry Limited, 07-cv-1479, (C.D. Cal.), for example, the DOJ
filed a brief which, among other things, explained the purpose of FACTA as
follows:
Congress sought with FACTA to ‘assist [] consumers in
preventing identity theft and for mitigating its consequences
once the crime has occurred.’ See 108 H. Rep. No. 263 (2003).
The goal of the provision that became §1681c(g) was ‘to limit
the opportunities for identity thieves to ‘pick off’ key card
account information.’ S. Rep. No. 108-166 (2003). FACTA
followed enactment of laws in at least 20 states with
provisions similar to §1681c(g) that prohibited printing the full
card number as well as the expiration date on receipts . . . .
Defendant claims that expiration dates accompanied only by
truncated card numbers need no protection from would-be
fraudsters. Defendant submitted with its opposition to
Plaintiff’s motion the declaration of a former MasterCard
employee who stated that a full expiration date and a
truncated card number cannot be used to make fraudulent
transactions . . . . Defendant also contends, based on the same
declaration, that card companies routinely complete
transactions with incorrect expiration dates so long as the
expiration date provided to the merchant is in the future . . . . .

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Defendant’s argument that a thief would not be able to make
fraudulent charges using only a truncated card number and
the full expiration date misses the point. Thieves might piece
together (or ‘pick-off,’ in the words of Congress) different bits
of information from different sources. The expiration date of a
customer’s credit/debit card, until recently printed on
Defendant’s receipts, is one of several pieces of information
that can make it easier for criminals to rack up fraudulent
charges. These dates are worth protecting even when not
accompanied by other important financial information.
(internal footnote omitted).
Congress’ actions comport with common experience,
testimony provided in support of the legislation, and the
instructions credit card companies give to merchants . . . .”
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Plaintiffs, on behalf of themselves and all others similarly situated,

bring this action against Defendant based on Defendant’s violation of 15 U.S.C. §
§1681c(g).
9.

Plaintiffs seek, on behalf of themselves and the class, statutory

damages, punitive damages, costs and attorneys fees, all of which are expressly
made available by statute, 15 U.S.C. §§ 1681n.
JURISDICTION AND VENUE
10.

This Court has federal question jurisdiction pursuant to 28 U.S.C.

§1331 and 15 U.S.C. §1681p.
11.

Plaintiffs’ claims asserted herein arose in this judicial district and

Defendant does business in this judicial district.
12.

Venue in this judicial district is proper under 28 U.S.C. §1391(b) and

(c) in that this is the judicial district in which a substantial part of the acts and
omissions giving rise to the claims occurred.
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PARTIES
13.

Plaintiff, Justin Orcutt is and, at all times relevant hereto, was a

resident of the State of New York.
14.

Plaintiff, Sara Cook is and, at all times relevant hereto, was a

resident of the State of New York.
15.

Defendant National Baseball Hall of Fame and Museum, Inc.

(Defendant), is an American history museum and hall of fame operated by
private interest with its principal place of business located at 25 Main Street,
Cooperstown, New York, 13326. Defendant is a “person that accepts credit cards
or debit cards for the transaction of business” within the meaning of FACTA. The
National Baseball Hall of Fame and Museum attracts about 315,000 visitors a
year to Cooperstown, New York. Defendant’s board of directors includes many
prominent baseball team owners, Hall of Famers, and successful businessman
including Edward W. Stack, Chairman of the Board and Chief Executive Officer of
Dick’s Sporting Goods, Inc., a retailer that is familiar with and regularly complies
with the redaction requirements of the FACTA. Another director, Jerry Reinsdorf,
owns the Chicago White Sox and the Chicago Bulls and is a former member of the
board of directors of Shearson Lehman Brothers, Inc. The Defendant, in
conjunction with Bank of America, also issues a “Hall of Fame MasterCard Credit
Card” that allows for a 10% discount on all purchases at the National Baseball
Hall of Fame and Museum Store as well as online purchases.
16.

Plaintiffs are unaware of the true names of defendants Does 1
5

through 10. Said defendants are sued by said fictitious names, and the pleadings
will be amended as necessary to obtain relief against defendants Does 1 through
10 when the true names are ascertained, or as permitted by law or by the Court.
17.

Plaintiffs are informed and believe and thereon allege that at all

relevant times each defendant was the franchisor, franchisee, principal, agent,
partner, joint venturer, officer, director, controlling shareholder, subsidiary,
affiliate, parent corporation, successor in interest and/or predecessor in interest
of some or all of the other defendants, and was engaged with some or all of the
other defendants in a joint enterprise for profit, and bore such other relationships
to some or all of the other defendants so as to be liable for their conduct with
respect to the matters alleged below. Plaintiffs are informed and believe and
thereon allege that each defendant acted pursuant to and within the scope of the
relationships alleged above, that each defendant knew or should have known
about, and authorized, ratified, adopted, approved, controlled, aided and abetted
the conduct of all other defendants.
FACTS RELATED TO PLAINTIFFS’ TRANSACTIONS
18.

In February, 2012, Plaintiff Justin Orcutt made a purchase with his

personal credit card or debit card at the National Baseball Hall of Fame and
Museum operated by Defendant.
19.

In February 2012, Plaintiff Sara Cook made a purchase with her

personal credit or debit card at the National Baseball Hall of Fame and Museum
operated by Defendant.
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20.

Defendant provided Plaintiffs with paper receipts at the point of sale

which displayed the expiration date of Plaintiffs’ personal credit/debit cards, in
violation of FACTA’s truncation requirements.
21.

Upon information and belief, at the time of Plaintiffs’ transactions

described above, Defendant was routinely presenting paper receipts to its
customers at the point of sale which displayed the expiration dates of their credit
and/or debit cards in violation of the truncation requirements of FACTA.
INDUSTRY KNOWLEDGE REGARDING THE
TRUNCATION OF CREDIT CARD INFORMATION
22.

In early 2003, the payment card industry and Congress announced

that they were working together to combat identity theft. A critical part of this
joint effort was the truncation of personal data from credit and debit card
receipts presented to consumers at the point of sale.
23.

On March 6, 2003, Visa CEO Carl Pascarella held a joint press

conference with Senators Judd Gregg, Jon Corzine, Patrick Leahy and Dianne
Feinstein to announce Visa USA’s new account truncation program to protect
consumers from identity theft. At the press conference, Mr. Pascarella stated:
“Today, I am proud to announce an additional measure to
combat identity theft and protect consumers. Our new receipt
truncation policy will soon limit cardholder information on
receipts to the last four digits of their accounts. . . . .
“The first phase of this new policy goes into effect July 1, 2003
for all new terminals. I would like to add, however, that even
before this policy goes into effect, many merchants have
already voluntarily begun truncating receipts, thanks to the
groundwork that we began together several years ago.
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* * * *
“Visa USA is pleased to be working with Senator Feinstein,
and the other senators here today in the fight to protect
consumers from identity theft. After all, we share the same
goals.”
24.

On July 9, 2003, L. Richard Fischer, presented a written statement

to the United States House of Representatives Committee on Financial Services
on behalf of Visa USA, Inc., supporting the truncation requirements of what
ultimately became FACTA. Therein, Mr. Fischer stated:
“Although Visa generally believes that the details of preventing
identity theft should be left to financial institutions that are
best suited to address ever evolving fraud techniques, Title II
could provide important benefits to consumers and financial
institutions alike by establishing workable identity theft
provisions and ensuring that these provisions benefit from
national uniformity. For example, Section 203 of Title II
would prohibit any merchant or other entity that accepts
credit and debit cards from printing more than the last four
digits of the card account number . . . .upon receipts provided
to cardholders at the point of sale . . . .”
25.

Visa USA’s agreements with the American merchants which accept

Visa brand credit or debit cards are defined in part in a manual entitled Rules for
Visa Merchants, Card Acceptance and Chargeback Management Guidelines
(“Visa Merchant Rules”). The Visa Merchant Rules Manual includes a description
of Visa’s truncation requirements. For example, the 2006 edition of the Manual
states:
“Visa requires that all new electronic POS terminals provide
account number truncation on transaction receipts. This
means that only the last four digits of an account number
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should be printed on the customer’s copy of the receipt.
After July 1, 2006, the expiration date should not appear at all.
Existing POS terminals must comply with these requirements
by July 1, 2006 . . . .”
26.

The truncation standards set forth in the Visa Merchant Rules, which

are part of the contract between Visa and the merchants which accept its debit
and/or credit cards, served as the basis for what ultimately became the truncation
requirements of FACTA.
27.

The Office of Thrift Supervision, United States Department of

Treasury (“OTS”), is responsible, inter alia, for monitoring financial institution
compliance with FACTA. Toward this end, the OTS publishes an Examination
Handbook (“Handbook”) which assists OTS field personnel when they perform
an examination, or compliance audit, of a given financial institution. The
February 2006 Edition of the Handbook states, in relevant part:
Truncation of Credit and Debit Card Account
Numbers
Ensure that electronically generated receipts from ATM and
POS terminals or other machines do not contain more than
the last five digits of the card number and do not contain the
expiration dates.
28.

FACTA’s requirements that merchants truncate all but the last five

digits of the card account number and expiration date was phased in over a three
year period. During the three year phase-in period, there was extensive publicity
regarding the law’s requirements.
29.

Many restaurant and trade associations apprised their merchant
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members that FACTA requires truncation of the entire expiration date and all but
the last five digits of the cardholder account number.
30.

In May, 2007 the Federal Trade Commission issued a business alert

entitled “Slip Showing? Federal Law Requires All Businesses to Truncate Credit
Card Information on Receipts.” That alert stated in relevant part:
“According to the federal Fair and Accurate Credit Transaction
Act (FACTA), the electronically printed credit and debit card
receipts you give your customers must shorten – or truncate –
the account information. You may include no more than the
last five digits of the card number, and you must delete the
card’s expiration date.”
31.

Heartland Payment Systems, Inc. (“Heartland”) provides credit and

debit card, payroll and related processing services to restaurant, hotel and retail
merchants throughout the United States, and indicates on its website that it
provides services to over 137,000 merchants. In 2003, Heartland broadly
disseminated a pamphlet which included the following statement:
“Your credit card terminal is now – or will soon be required by
law or the bankcard associations to truncate – or limit – the
information that can appear on electronically printed sales
receipts.
What that means is that on all cardholder numbers:
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The expiration date must be eliminated

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All but the last four numbers of the card number must
be obscured.
32.

* * * *”
In 2006, Heartland broadly disseminated a second pamphlet, which

included the following statement:
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“Make every transaction a safe one.
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The cardholder’s receipt should not include the card’s
expiration date and should only include the last 4 or 5 digits of
the card number.
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33.

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*”

Many restaurant and retail trade associations apprised their

merchant members that FACTA imposed truncation requirements mirroring
Visa’s truncation requirements. For example, the Virginia Retail Merchants
Association reported in its February/March 2005 Newsletter that:
“FACTA says receipts for credit and debit card transactions
may not include more than the last five digits of the card
number or expiration date.”
34.

In the April 23, 2003 edition of the monthly magazine for the

National Association of Convenience Stores, the national trade association for
Convenience and Petroleum Retailing, an article titled “Visa USA Targets Identity
Theft,” appeared and included the following language:
“[A]t a press conference held last month with Sen. Dianne
Feinstein (D-CA), Visa announced its account truncation
security policy. This protects consumers from identity theft by
limiting cardholders‘ information on receipts to the last four
digits of their accounts. The policy will also eliminate the
card’s expiration date from receipts altogether. Feinstein has
introduced legislation to combat identity theft.”
35.

The April 2005 edition of the Food Industry Advisor, the newsletter

for the Pennsylvania Food Merchants Association and Pennsylvania Convenience

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Store Council, included an article regarding the requirements of credit card
truncation under FACTA which included the following language:
“[A]ccording to the FACT Act, ‘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. . . . .’”
The same article appeared in the April 2005 Edition of the NACS Magazine,
published by the National Association of Convenience Stores.
36.

In its Spring 2004 Newsletter, the Connecticut Restaurant

Association Newsletter included an article regarding Requirements for Credit
Card Truncation, which stated:
“[T]here is currently no Connecticut state law, so the two
ruling requirements come from VISA and a new Federal Fair
Credit Reporting Act signed in December 2003.
Truncation requires that all but the last four digits of the
cardholder account number, along with the entire expiration
date, be suppressed on the cardholder copy of the transaction
receipt generated from all electronic terminals. . . .”
37.

After the enactment of FACTA, the Wisconsin Restaurant

Association issued a “Credit Card Truncation” Alert to its members, which stated:
“You may have been hearing about credit card truncation
lately. This is what you need to know.
Credit card truncation removes all but the last four (or five)
digits of a credit card account number and the expiration date
from the sales receipt. For example: A non-truncated receipt
would list: Acct. # 1234 5678 7654 3210 Exp. 10/05 while a
truncated receipt would show: Acct. # **** **** **** 3210 Exp
****.
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The federal Fair and Accurate Credit Transaction Act of 2003,
prohibits any person that accepts credit cards or debit cards
from printing the expiration date and more than the last five
digits of the card number upon any terminal-generated receipt
provided to the cardholder at the point of sale . . . .”
38.

In the January 2005 edition of the Massachusetts Restaurant

Association Newsletter, an article appeared apprising Association members that
both Visa and MasterCard require truncation of the entire expiration date and all
but the last four digits of the cardholder account number.
39.

Similar information was disseminated by the Ohio Restaurant

Association, the Oklahoma Restaurant Association, and a significant number of
other restaurant trade associations, and retail merchant trade associations.
40.

In the March/April 2006 Edition of the Ohio Independent

Automobile Dealers’ Association Dealer News Magazine, an Article was published
entitled “What You Should Know about Credit and Debit Card Processing and the
FACTAs about Card Truncation.” The article states:
“What is Card Truncation? This federal law sets deadlines by
which the receipt electronically printed from a credit card sale
must be truncated – meaning, the receipt given to the
customer shows no more than the last five digits of the
customer’s credit card number and does not show the
expiration date.
Business owners are responsible for merchant account
compliance with the truncation regulations and must make
sure their printed cardholder receipts do not contain
expiration dates or full account numbers.”
This same article appeared in the March/April edition of the West Coast
Independent Automobile Dealer News.
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41.

The Independent Insurance Agents & Brokers of America circulated

a report to its members dated June 5, 2005 titled: “Overview of the Fair Credit
Reporting Act, The Fair and Accurate Credit Transactions Act, and the Drivers
Privacy Protection Act.” In relevant part, this publication stated:
“Under the FACT Act, businesses and others accepting credit
or debit cards for payment may not print more than the last
five digits of the card number nor may they print the
expiration date upon any receipt provided to the cardholder at
the point of sale.”
42.

In the November 18, 2004, edition of the Compliance Challenge,

published by the Credit Union National Association News, a report was published
that included the following language:
“FACTA prohibits anyone that accepts credit/debit cards to
print more than the last 5 digits of the card number or
expiration date on any receipt at the point of sale or
transaction . . . .”
43.

In the October 10, 2003, edition of the PT Bulletin, a Newsletter for

the American Physical Therapy Association, an article appeared titled,
“Truncation Requirement Now in Effect for Credit Card Processing.” In relevant
part, this article stated:
“Physical therapists who accept credit card payments from
patients and clients face new processing requirements from
major credit card companies.
In an effort to minimize opportunities for credit card fraud,
Visa and MasterCard . . . .have mandated that credit card
account numbers and expiration dates be masked on all
receipts. Compliance with this requirement is not
optional . . . .”

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44.

The passage of the Clarification Act, was championed by the national

Chamber of Commerce and added to the extensive amount of publicity regarding
the requirements of FACTA.

DEFENDANT’S KNOWLEDGE OF FACTA’S
TRUNCATION REQUIREMENTS
45.

Defendant had actual knowledge of FACTA’s truncation

requirements, specifically including FACTA’s requirements concerning the
truncation of credit and debit card numbers and prohibition on printing of
expiration dates, and was provided with notice of these obligations by trade
associations, companies that provided merchant services and otherwise prepared
monthly statements of credit card activity, and others.
46.

Upon information and belief, during all times relevant to this

Complaint, Defendant has had agreements with various credit card issuers,
including VISA, Mastercard, Discover, American Express and others, and those
agreements apprise Defendant of its obligation to truncate credit and debit card
account numbers and expiration dates.
47.

Upon information and belief, prior to the transaction at issue,

Defendant received periodic communications from credit card issuers advising
Defendant of its obligation to truncate credit and debit card account numbers
and expiration dates.

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48.

Upon information and belief, prior to the transaction at issue,

Defendant received monthly statements from its merchant bank (or other similar
entity that performed credit and debit card payment clearing services for
Defendant) which apprised Defendant of its obligation to truncate credit and
debit card account numbers and expiration dates.
49.

Upon information and belief, prior to the transaction at issue,

Defendant received written information from its POS (Point of Sale) provider(s)
apprising Defendant of its obligation to truncate credit and debit card account
numbers and expiration dates.
50.

Upon information and belief, prior to the transaction at issue,

Defendant received information from trade associations and/or other similar
entities apprising Defendant of its obligation to truncate credit and debit card
account numbers and expiration dates.
CLASS ALLEGATIONS
51.

Plaintiffs bring this class action on behalf of themselves and all

others similarly situated pursuant to Rules 23(a) and 23(b) of the Federal Rules
of Civil Procedure.
52.

Plaintiffs seek to represent a class persons to be defined as follows:
All persons to whom Defendant provided an
electronically printed receipt at the point of sale or
transaction, in a transaction occurring after March 20,
2010, on which Defendant printed 1) more than the last
five digits of the person credit card or debit card
number, and/or, 2) the expiration date of the person’s
credit card number. Excluded from the class is any
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individual who has suffered identity theft as a result of
Defendant’s violations of FACTA as delineated in this
Complaint.
53.

Numerosity: The class described above is so numerous that joinder

of all individual members in one action would be impracticable. The disposition
of the individual claims of the respective class members through this class action
will benefit both the parties and this Court.
54.

Plaintiffs are informed and believes, and thereon allege, that there

are at minimum, thousands of members of the class described above. According
to information published on Defendant’s website, The National Baseball Hall of
Fame and Museum attracts about 315,000 visitors a year to Cooperstown, New
York. For tax year 2010, Defendant collected $2.75 million in admissions charges
and $1.5 million is Friends of the Hall of Fame membership subscriptions. The
Baseball Hall of Fame Shop also had gross sales of $3.58 million in tax year 2010.
55.

The exact size of the class and the identities of the individual

members thereof are ascertainable through Defendant’s records, including but
not limited to Defendant’s sales and transaction records.
56.

Members of the class may be notified of the pendency of this action

by techniques and forms commonly used in class actions, such as by published
notice, e-mail notice, website notices, first class mail, or combinations thereof, or
by other methods suitable to this class and deemed necessary and/or appropriate
by this Court.

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57.

Typicality: Plaintiffs’ claims are typical of the claims of the

members of the class. The claims of the Plaintiffs and members of the class are
based on the same legal theories and arise from the same unlawful and willful
conduct.
58.

Plaintiffs and members of the class were each customers of

Defendant, each having made a purchase or transacted other business with
Defendant at an applicable time using a credit card and/or debit card. At the
point of such sale or transaction with Plaintiffs and members of the class,
Defendant provided to Plaintiffs and each member of the class a receipt in
violation of 15 U.S.C. §1681c(g).
59.

Common Questions of Fact and Law: There is a well-defined

community of interest and common questions of fact and law affecting members
of the class.
60.

The questions of fact and law common to the class predominate over

questions which may affect individual members and include the following:
a.

Whether Defendant’s conduct of providing Plaintiffs and the

members of the class with a sales or transaction receipt whereon Defendant
printed the credit card or debit card expiration date violated the FACTA, 15
U.S.C. §§1681, et seq.
b.
c.

Whether Defendant’s conduct was willful; and
Whether Plaintiffs and members of the class are entitled to

statutory damages, punitive damages, costs and/or attorneys’ fees for
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Defendant’s acts and conduct.
61.

Adequacy of Representation: Plaintiffs are adequate

representatives of the class because their interests do not conflict with the
interests of the members of the class. Plaintiffs will fairly, adequately, and
vigorously represent and protect the interests of the members of the class and has
no interests antagonistic to the members of the class. Plaintiffs have retained
counsel who are competent and experienced in the prosecution of class action
litigation.
62.

Superiority: A class action is superior to other available means for

the fair and efficient adjudication of the claims of the class. While the aggregate
damages which may be awarded to the members of the class are likely to be
substantial, the damages suffered by the individual members of the class are
relatively small. As a result, the expense and burden of individual litigation
makes it economically infeasible and procedurally impracticable for each member
of the class to individually seek redress for the wrongs done to them. Plaintiffs do
not know of any other litigation concerning this controversy already commenced
by or against any member of the class. The likelihood of the individual members
of the class prosecuting separate claims is remote. Individualized litigation would
also present the potential for varying, inconsistent, or contradictory judgments,
and would increase the delay and expense to all parties and the court system
resulting from multiple trials of the same factual issues. In contrast, the conduct
of this matter as a class action presents fewer management difficulties, conserves
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the resources of the parties and the court system, and would protect the rights of
each member of the class. Plaintiffs know of no difficulty to be encountered in the
management of this action that would preclude its maintenance as a class action.
63.

Disavowal of Unconstitutional Damages. To the extent that

any award of class-based statutory damages against Defendant might be
adjudicated as violating Defendant’s Due Process Rights under the United States
Constitution, Plaintiffs, on behalf of the putative class they are seeking to
represent, expressly request damages only to the fullest extent allowed under the
Constitution of the United States.
FIRST CAUSE OF ACTION
For Violation of 15 U.S.C. §§1681 et seq.
(On Behalf of Plaintiffs and the Members of the Class)
64.

Plaintiffs hereby incorporate by reference the allegations contained

in the above paragraphs of this Complaint as if fully set forth herein.
65.

Plaintiffs assert this claim on behalf of themselves and the class

against Defendant.
66.

Title 15 U.S.C. §1681c(g)(1) provides that:
…no person that accepts credit cards or debit cards for the
transaction of business shall print more than the last five
digits of the card number or the expiration date upon any
receipt provided to the cardholder at the point of sale of
transaction..

67.

With respect to machines that were first put into use after January 1,

2005, 15 U.S.C. §1681c(g)(3)(B) required immediate compliance with the
provisions of 15 U.S.C. §1681c(g)(1).
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68.

With respect to machines that were in use before January 1, 2005, 15

U.S.C. §1681c(g)(3)(B) required compliance with the provisions of 15 U.S.C.
§1681c(g)(1) on or after December 4, 2006.
69.

On June 3, 2008, the Credit and Debit Card Receipt Clarification Act

of 2007, 15 U.S.C. 1681n(d), became effective. The Clarification Act shielded from
a finding of willful noncompliance with FACTA any business that printed an
expiration date on a cardholder receipt between December 4, 2004, and the
enactment of the Clarification Act (i.e., June 3, 2008).
70.

Defendant transacts business in the United States and accepts credit

cards and/or debit cards in the course of transacting business with persons such
as Plaintiffs and the members of the class. In transacting such business,
Defendant use cash registers and/or other machines or devices that electronically
print receipts for credit card and/or debit card transactions.
71.

In February 2012, after the effective date of the statute and the

Clarification Act, Defendant, at the point of sale, provided Plaintiffs with an
electronically printed receipt on which Defendant printed the expiration date of
the Plaintiffs’ credit/debit cards.
72.

After the effective date of the statute and the Clarification Act,

Defendant, at the point of a sale or transaction with members of the class,
provided each member of the class with one or more electronically printed
receipts on each of which Defendant printed, for each respective class member,
more than the last five digits of such member’s credit card or debit card number
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and/or printed the expiration date of such member’s credit or debit card.
73.

Defendant knew of, or should have known of, and was informed

about the law, including specifically FACTA’s requirements concerning the
truncation of credit and debit card numbers and prohibition on printing of
expiration dates.
74.

Despite knowing and being repeatedly informed about FACTA and

the importance of not printing expiration dates on receipts, and despite having
had until June 3, 2008, to comply with FACTA’s requirements, Defendant
willfully violated and continues to violate FACTA’s requirements by, inter alia,
printing the expiration dates of credit cards and debit cards upon the receipts
provided to members of the class – persons with whom Defendant transacts
business.
75.

Most of Defendant’s business peers and competitors readily brought

their credit card and debit card receipt printing process into compliance with
FACTA by, for example, programming their card machines and devices to prevent
them from printing the card expiration date upon the receipts provided to the
cardholders. Defendant could have readily done the same.
76.

In contrast, Defendant willfully disregarded FACTA’s requirements

and continues to use cash registers or other machines or devices that print
receipts in violation of FACTA.
77.

Defendant willfully violated FACTA in conscious disregard of the

rights of Plaintiffs and the members of the class thereby exposing Plaintiffs and
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the members of the class to an increased risk of identity theft and credit and/or
debit card fraud.
78.

Defendant’s willful violation of FACTA exposed Plaintiffs and the

members of the class to an increased risk of identity theft and credit and/or debit
card fraud.
79.

As a result of Defendant’s willful violations of FACTA, Defendant is

liable to Plaintiffs and each member of the class in the statutory damage amount
of “not less than $100 and not more than $1,000” for each violation. 15 U.S.C.
§1681n(a)(1)(A).
80.

As a result of Defendant’s willful violations of FACTA, Plaintiffs and

the members of the class are entitled to recover costs of suit and their reasonable
attorneys’ fees. 15 U.S.C. §1681n(a)(3).
81.

As a result of Defendant’s willful violations of FACTA, Plaintiffs and

the members of the class are entitled to recover punitive damages. 15 U.S.C.
§1681n(a)(2).
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves and the members of the
class, pray for:
A.

An order certifying the class and appointing Plaintiffs as the

representative of the class, and appointing counsel for Plaintiffs as counsel for the
class;
B.

An award to Plaintiffs and the members of the class of statutory
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damages pursuant to 15 U.S.C. §1681n(a)(1)(A) for Defendant’s willful violations
(up to but not exceeding the fullest extent allowed under the Constitution of the
United States);
C.

An award to Plaintiffs and the members of the class of punitive

damages pursuant to 15 U.S.C. §1681n(a)(2)(up to but not exceeding the fullest
extent allowed under the Constitution of the United States);
D.

Payment of costs of suit herein incurred pursuant to, inter alia, 15

U.S.C. §1681n(a)(3);
E.

Payment of reasonable attorneys’ fees pursuant to, inter alia, 15 U.S.C.

§1681n(a)(3);
F.

For other and further relief as the Court may deem proper.
JURY DEMAND

Plaintiffs demand a trial by jury on all claims so triable.
Dated: March 20, 2012

Respectfully Submitted,

/s/ E. David Hoskins
E. David Hoskins, Bar No. 516554
LAW OFFICES OF E. DAVID HOSKINS, LLC
Quadrangle Building at Cross Keys
2 Hamill Road, Ste. 362
Baltimore, Maryland 21210
[phone] (Tel.)
[phone] (Fax)
[e-mail]

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Of Counsel
Bruce Carlson, Esq.
CARLSON LYNCH
231 Melville Lane
PO Box 367
Sewickley, PA 15143
(p) 412.749.1677
(f) 412.749.1686
[e-mail]
Stephanie K. Goldin, Esq.
CARLSON LYNCH
231 Melville Lane
PO Box 367
Sewickley, PA 15143
(p) 412.749.1677
(f) 412.749.1686
[e-mail]

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