Randy Long v. Tommy Hilfiger USA Inc

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1554
____________
RANDY LONG,
individually and on behalf of all others similarly situated,
Appellant
v.
TOMMY HILFIGER U.S.A., INC.
____________
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 09-cv-01701)
District Judge: Honorable Joy Flowers Conti
___________
Submitted Under Third Circuit LAR 34.1(a)
December 5, 2011
___________
Before: HARDIMAN, BARRY and VAN ANTWERPEN,
Circuit Judges
(Opinion Filed: January 24, 2012)
___________
Gary F. Lynch
Stephanie K. Goldin
36 N. Jefferson Street
P.O. Box 7635
New Castle, PA 16107
Counsel for Appellant
John G. Papianou
Montgomery, McCracken, Walker & Rhoads, LLP
123 South Broad Street, 24th Floor
Philadelphia, PA 19109
-and-
Stanley M. Stein
Feldstein, Grinberg, Stein & McKee
428 Boulevard of the Allies
Pittsburgh, PA 15219
Counsel for Appellee
___________
OPINION OF THE COURT
___________
BARRY, Circuit Judge
The Fair and Accurate Credit Transactions Act
(“FACTA”) provides, in relevant part, that merchants who
accept credit or debit cards shall not print “the expiration
date” of the cards upon any receipt provided to the cardholder
at the point of the sale. The question in this case is whether a
retailer willfully violates that statute by printing the expiration
month, but not the year, of the credit card on a receipt. The
District Court answered that question in the negative, and
dismissed appellant Randy Long’s complaint against Tommy
Hilfiger U.S.A., Inc. We will affirm.
I.
On October 29, 2009, Long made a purchase of “men’s
neckwear” using his credit card at a Hilfiger store in Grove
City, Pennsylvania. His credit card was charged $24.99, and
Hilfiger gave him an electronically-printed receipt that
redacted all but the last four digits of his credit card number
and displayed the month, but not the year, of his card’s
expiration date. In pertinent part, the receipt read as follows:
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SALESPERSON # 8399
881300009340 MENS NECKWEAR 24.99
TOTAL $24.99
VISA $24.99
############9802
PURCHASE
EXPIRY: 04/## SWIPED
(JA 46.)
On December 29, 2009, Long filed this action against
Hilfiger alleging that Hilfiger’s printing of “EXPIRY: 04/##”
on his receipt willfully violated FACTA’s prohibition against
printing the expiration date. Long sued on his own behalf and
asserted a putative nationwide class action on behalf of all
others similarly situated. He sought statutory damages for the
alleged violation, as well as punitive damages, attorneys’ fees,
and costs.
Hilfiger moved to dismiss Long’s complaint pursuant
to Federal Rule of Civil Procedure 12(b)(1) and (6). With the
consent of the parties, the District Court denied the motion
without prejudice and referred the case to mediation.
Mediation was unsuccessful, and Hilfiger renewed the motion
to dismiss. On February 11, 2011, the District Court granted
the motion, concluding that (1) printing the month of
expiration, standing alone, did not constitute the printing of an
“expiration date” under the statute, and (2) in any event, Long
could not recover because the alleged violation was not
“willful.” Long appealed.
II.
The District Court had jurisdiction over this case
pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1681p. We
have appellate jurisdiction under 28 U.S.C. § 1291, and
exercise plenary review over both the grant of a motion to
dismiss, Fagin v. Gilmartin, 432 F.3d 276, 281 (3d Cir.
2005), and questions of statutory interpretation, DIRECTV
3
Inc. v. Seijas, 508 F.3d 123, 125 (3d Cir. 2007).
A.
In 2003, Congress amended the Fair Credit Reporting
Act, 15 U.S.C. § 1681 et seq., by enacting FACTA. See Pub.
L. No. 108-159, 117 Stat. 1952 (2003). As part of an effort to
prevent identity theft, FACTA prohibits merchants from
printing certain credit and debit card information on receipts.
In particular, it provides:
(g) Truncation of credit card and debit card
numbers
....
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). 1
FACTA imposes civil liability for violations of this
provision, with the available remedies dependent upon
whether the violation was negligent or willful. If a
merchant’s violation was merely negligent, a plaintiff may
recover only actual damages, and statutory damages are not
available. Id. at § 1681o(a)(1). If the violation was willful,
however, FACTA allows a plaintiff to elect to recover either
actual damages or statutory damages between $100 and
$1,000. Id. at § 1681n(a)(1)(A). A court may also award
punitive damages in cases involving willful violations. Id. at
§ 1681n(a)(2).
1
FACTA expressly limits the reach of this subsection “to
receipts that are electronically printed, and [does] 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.” 15 U.S.C. § 1681c(g)(2).
4
In 2008, almost five years after the passage of FACTA,
Congress enacted the “Credit and Debit Card Receipt
Clarification Act” (“Clarification Act”). See Pub. L. No. 110-
241, 122 Stat. 1565 (2008). The Clarification Act arose from
“hundreds of lawsuits” that were filed against merchants after
the effective date of FACTA, alleging that merchants’ “failure
to remove the expiration date was a willful violation” of the
statute, even though the account number was properly
truncated. Clarification Act § 2(a)(4), 122 Stat. at 1565.
Congress found that many merchants mistakenly believed that
§ 1681c(g) would be satisfied solely by truncating the card
number and not the expiration date. Id. at § 2(a)(3), 122 Stat.
at 1565. It noted that none of the lawsuits that had been filed
alleged any actual harm to the consumer’s identity, and
“[e]xperts in the field agree that proper truncation of the card
number . . . regardless of the inclusion of the expiration date,
prevents a potential fraudster from perpetrating identity theft
or credit card fraud.” Id. at § 2(a)(5)-(6), 122 Stat. at 1565. It
deemed these lawsuits to be a significant burden on
businesses, without any corresponding consumer benefit. Id.
at § 2(a)(7), 122 Stat. at 1565-66. Therefore, Congress
amended FACTA to state that any merchant who printed an
expiration date, but otherwise complied with FACTA,
between the dates of December 4, 2004 and June 3, 2008,
shall not be deemed in willful noncompliance with §
1681c(g). Id. at § 3(a) (codified at 15 U.S.C. § 1681n(d)),
122 Stat. at 1566.
B.
This appeal raises two related questions. The first is
whether Long’s allegation that Hilfiger printed his credit
card’s expiration month, but not the year, states a claim under
FACTA. If so, the second question is whether such a
violation of the statute meets the standard for “willfulness.”
These are issues of first impression among the federal courts
of appeals. We will address each in turn.
1.
Determining whether Long has stated a claim under
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FACTA requires us to interpret the statute. The principles
governing statutory interpretation are well-known. Our role is
to give effect to Congress’s intent, which we assume is
expressed in the ordinary meaning of the statutory language.
Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d
199, 210 (3d Cir. 2008). In analyzing whether the statutory
language is unambiguous, “we take account of ‘the specific
context in which that language is used, and the broader
context of the statute as a whole.’” Id. (quoting In re Price,
370 F.3d 362, 369 (3d Cir. 2004). We also consider the
“overall object and policy of the statute, and avoid
constructions that produce odd or absurd results or that are
inconsistent with common sense.” Id. (citation and internal
quotation marks omitted). In addition to following these
general rules of statutory interpretation, we are mindful that
remedial legislation should be construed broadly to effectuate
its purpose. Idahoan Fresh v. Advantage Produce, Inc., 157
F.3d 197, 202 (3d Cir. 1998).
The critical inquiry before us is the meaning of
FACTA’s requirement that no person shall print “the
expiration date.” The phrase “expiration date” is not defined
in the statute. Hilfiger argues, however, that the phrase refers
to an ascertainable date on which the credit or debit card
ceases to be valid, and requires the simultaneous coexistence
of both the month and the year. Hilfiger concludes, therefore,
that merely printing “April” or “04” does not constitute
printing an “expiration date” within the meaning of §
1681c(g)(1).
We disagree. Taking Hilfiger’s argument to its logical
conclusion, a merchant would not violate FACTA so long as
it redacted even a single number from either the month or year
of the card’s expiration date. Furthermore, different
merchants could each choose to redact different portions of
the expiration date, making it possible to ascertain the entire
expiration date from multiple receipts. This, of course, would
be inconsistent with the statute’s objective of preventing
identity theft and a result certainly not intended by Congress.
We conclude that the most natural reading of the
6
phrase “expiration date” is that it refers to the information or
data (usually a string of numbers) contained in the expiration
date “field” on the face of the credit or debit card. In other
words, FACTA is best read as prohibiting merchants from
printing the numbers in that field, which Long alleges Hilfiger
did in this case by printing “EXPIRY: 04/##.” The fact that
Hilfiger printed only a part or portion of the expiration date
numbers from Long’s credit card does not change the result.
To be sure, FACTA is silent as to the effect of a partial
printing of the expiration date. Nevertheless, if Congress had
intended to allow a partial printing, it would have used
language similar to what it used for credit or debit card
numbers. With respect to card numbers, Congress clearly
indicated the scope of disclosure allowed by specifically
stating that no merchant shall print “more than the last 5
digits of the card number.” 15 U.S.C. § 1681c(g)(1)
(emphasis supplied). Congress demonstrated that it knew
how to use language allowing for the partial disclosure of
information, but elected not to include any such language in
the context of expiration dates. Therefore, we cannot
conclude that FACTA provides an exception for merchants
who redact part of the expiration date information on the
receipt.
Hilfiger’s reliance on the Clarification Act is
unpersuasive. Despite having the occasion to specifically
consider the issue of expiration dates, Congress did not
change the actual language of § 1681c(g)(1) or otherwise alter
the liability standard of the statute. Just as before, the
statutory language stated that “no person . . . shall print . . .
the expiration date” on a receipt. What Congress did do was
to provide a safe harbor for merchants who had been sued for
printing such dates. We will not assume that Congress
intended a greater limitation of liability than what is explicitly
stated in the statutory text.
For these reasons, and consistent with our duty to
interpret remedial statutes broadly, Idahoan, 157 F.3d at 202,
we hold that § 1681c(g)(1) prohibits a merchant from printing
expiration date information on a receipt provided to the
consumer, even if the year is redacted. Therefore, Long
7
properly alleged that Hilfiger violated FACTA.
2.
Having determined that Long properly alleged a
violation of FACTA, we next ask whether FACTA authorizes
him to recover for the violation. Long concedes that he did
not suffer any actual damages, and instead requests statutory
damages together with punitive damages and attorneys’ fees
under 15 U.S.C. § 1681n(a). As noted above, however, Long
is not eligible for such relief unless he can allege, and
ultimately prove, that the violation of the statute was
“willful.” Id.
The Supreme Court addressed the willfulness
requirement of § 1681n(a) in Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47 (2007). In Safeco, the Court considered a
provision of the Fair Credit Reporting Act which requires
notice to a consumer subjected to “adverse action . . . that is
based in whole or in part on any information contained in a
consumer [credit] report.” 15 U.S.C. § 1681m(a). With
respect to an insurance company, an “adverse action” is
defined in part as “an increase in any charge for, or a
reduction or other adverse or unfavorable change in the terms
of coverage or amount of, any insurance, existing or applied
for.” Id. at § 1681a(k)(1)(B)(i). The defendant insurance
companies in Safeco argued that they did not violate the
statute by failing to give notice, because the plaintiffs’ claims
were based on “initial rates charged for new insurance
policies.” Safeco, 551 U.S. at 60-61. The defendants argued
that the initial rate for a new policy “cannot be an ‘increase’
because there is no prior dealing” between the parties. Id. at
61. In other words, the defendants argued that the statutory
reference to “increase in any charge” was meant to cover
“change[s] in treatment for an insured, which assumes a
previous charge for comparison.” Id.
The Supreme Court rejected the defendants’
interpretation, concluding that applying the statute to initial
rates for new policies is a “better fit with the ambitious
objective set out in the Act’s statement of purpose.” Id. at 62.
Although finding a violation of the statute, however, the
8
Court concluded that the violation was not willful because the
willfulness component is not met “unless the action is not
only a violation under a reasonable reading of the statute’s
terms, but shows that the company ran a risk of violating the
law substantially greater than the risk associated with a
reading that was merely careless.” Id. at 69 (emphasis
supplied). Accordingly, the Court held that a violation does
not cross the willfulness threshold just because a defendant’s
interpretation is erroneous; it must instead be “objectively
unreasonable.” Id.
The “objectively unreasonable” standard was not met
in Safeco for several reasons. First, the statute itself was
“silent on the point from which to measure ‘increase’” and the
Supreme Court considered the statutory text “less-than-
pellucid.” Id. at 69-70. Second, the defendant’s proposed
interpretation had a “foundation in the statutory text . . . and a
sufficiently convincing justification to have persuaded the
District Court to adopt it.” Id. Finally, the Court noted that
“[b]efore these cases, no court of appeals had spoken on the
issue, and no authoritative guidance has yet come from the
FTC.” Id. at 70. Accordingly, the Court concluded that the
defendant’s reading was not objectively unreasonable, and fell
“well short” of meeting the willfulness standard. Id.; see also
Shlahtichman v. 1-800 Contacts, Inc., 615 F.3d 794, 803-04
(7th Cir. 2010) (applying Safeco to conclude it was
objectively reasonable for merchant to believe § 1681c(g) did
not apply to e-mailed receipts).
In light of Safeco, we conclude that Hilfiger’s
interpretation of the statute is not “objectively unreasonable”
and, thus, that Long has not stated a claim for a willful
violation of FACTA. Just as in Safeco, Hilfiger’s
interpretation of § 1681c(g)(1) has some foundation in the
text, as Hilfiger could believe that the statute did not apply
based on what it considered to be the plain meaning of the
phrase “expiration date.” That phrase is not defined in the
statute itself, just as the statute in Safeco was silent as to the
point from which to measure an increase in a charge for
insurance. Furthermore, despite the fact that we reject
Hilfiger’s interpretation of the § 1681c(g)(1) language, it was
9
at least sufficiently persuasive to convince the District Court
to adopt it. Although Long argues that there was district court
authority putting Hilfiger on notice that its interpretation was
incorrect, 2 there was no guidance from the federal courts of
appeal on this issue. 3
Long’s additional arguments on this point are
unpersuasive. He contends that it is possible that Hilfiger
“did not actually rely on any interpretation” of § 1681c(g)(1),
and instead “disregarded the statute altogether and is only
now seizing upon a post hoc ‘objectively reasonable’
interpretation in order to shield itself from liability.”
Appellant’s Br. at 25. This argument, however, is expressly
foreclosed by Safeco, which held that evidence of subjective
bad faith or intent of the defendant is irrelevant when there is
2
Long cites, for example, Follman v. Hospitality Plus of
Carpentersville, Inc., 532 F. Supp. 2d 960, 964 (N.D. Ill.
2007); Iosello v. Leiblys, Inc., 502 F. Supp. 2d 782, 786 (N.D.
Ill. 2007); Arcilla v. Adidas Promotional Retail Operations,
Inc., 488 F. Supp. 2d 965, 970 (C.D. Cal. 2007); and Ramirez
v. Midwest Airlines, Inc., 537 F. Supp. 2d 1161, 1171 (D.
Kan. 2008). These decisions are not directly on-point because
they involve merchants who, unlike here, printed the entire
expiration date.
3
Long argues there was agency guidance on this issue, citing
to a brief FTC “Business Alert” indicating that merchants
“must delete the card’s expiration date[, f]or example . . .
EXP: ****.” Slip Showing? Federal Law Requires All
Businesses to Truncate Credit Card Information on Receipts
(May 2007). We are doubtful that this Business Alert
constitutes the kind of “authoritative guidance” from the
agency envisioned by the Supreme Court. See Safeco, 551
U.S. at 70 n.19 (rejecting the FTC document relied upon by
plaintiffs because it was a letter written by an FTC staff
member that “did not canvas the issue” in question and was
merely an informal opinion not binding on the Commission).
In any case, we cannot conclude from this Business Alert
standing alone that Hilfiger ran a risk of violating FACTA
substantially greater than the risk associated with a reading
that was merely careless.
10
an objectively reasonable interpretation of the statute that
would allow the conduct in question. See Safeco, 551 U.S. at
70 n.20. Thus, Long’s allegation about Hilfiger’s actual
knowledge or intent as to FACTA’s requirements is
immaterial to the objective reasonableness analysis. For these
same reasons, we are also unpersuaded by Long’s argument
that he requires discovery to establish Hilfiger’s subjective
knowledge. See Shlahtichman, 615 F.3d at 803-04 (affirming
a 12(b)(6) dismissal of a FACTA complaint in part on the
ground that the defendant’s proffered interpretation was
objectively reasonable); Safeco, 551 U.S. at 71 (concluding
defendant’s interpretation was objectively reasonable and
finding “no need . . . to remand the cases for factual
development”).
In sum, we conclude that Hilfiger’s interpretation of §
1681c(g)(1), although erroneous, was at least objectively
reasonable. Hilfiger did not run “a risk of violating the law
substantially greater than the risk associated with a reading
that was merely careless.” Safeco, 551 U.S. at 69.
Accordingly, Long has not stated a claim for a willful
violation of FACTA, and the District Court did not err in
dismissing his complaint.
III.
For the foregoing reasons, we will affirm the order of
the District Court.
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