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Follman v. Village Squire

December 18, 2007

LARRY FOLLMAN, INDIVIDUALLY AND ON BEHALF OF A CLASS, PLAINTIFF,
v.
VILLAGE SQUIRE, INC., AND DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Larry Follman ("Follman") has filed a putative class action against Village Squire, Inc. alleging that Defendant Village Squire, Inc. ("VSI") provided Follman with a computer-generated cash register receipt that displayed Follman's credit card expiration date.*fn1 Follman alleges that the inclusion of the expiration date on the cash register receipt violates the truncation requirement of the Fair and Accurate Credit Transactions Act ("FACTA") amendment to the Fair Credit Reporting Act ("FCRA"), codified at 15 U.S.C. § 1681c(g). Section 1681c(g) provides, in pertinent part, that:

[N]o 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.

(emphasis added). Follman alleges that VSI violated § 1681c(g) by providing him with a receipt that included his card's expiration date. Follman's Complaint includes no allegations regarding actual damages; instead, Follman seeks statutory damages, attorneys' fees, expenses and costs, and punitive damages.

Now before the Court is VSI's Motion to Dismiss. VSI advances three arguments in support of its Motion: (1) there is no private right of action to enforce § 1681c(g); (2) Follman's Complaint does not plead facts sufficient to state a plausible claim for a willful violation of § 1681c(g); and (3) Follman's request for statutory damages in the absence of actual injury violates principles of due process and recognized tort law. None of these arguments has merit. Indeed, each of VSI's arguments has been repeatedly reject by a number of federal district courts. Accordingly, and for all of the reasons set forth herein, VSI's Motion to Dismiss is denied.

STANDARD

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal, not factual, sufficiency of a complaint. See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-76 (7th Cir. 2001). When reviewing a motion to dismiss, courts must accept all well-pleaded factual allegations in the complaint and must draw reasonable inferences from those facts in favor of the Plaintiff. Richards v. Kiernan, 461 F.3d 880, 882 (7th Cir. 2006). In general, a complaint filed in federal court need only provide enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and the allegations therein must demonstrate that the plaintiff's entitlement to relief is plausible, rather than merely speculative. Lang v. TCF Nat'l Bank, No. 07-1415, 2007 U.S. App. LEXIS 22588, *5 (7th Cir. Sep. 20, 2007) (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964, 167 L.Ed. 2d 929 (2007) (additional citations omitted)). The Seventh Circuit has read the Supreme Court's decisions in Bell Atlantic and Erickson v. Pardus, 127 S.Ct. 2197 (2007) (decided two weeks after Bell Atlantic) "to be saying only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under [Fed. R. Civ. P.] 8." Killingsworth v. HSBC Bank Nev., Nevada, N.A., No. 06-1616, 06-2178, 2007 U.S. App. LEXIS 26124, *8 (7th Cir. Nov. 9, 2007) (citing Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7 th Cir. 2007).

DISCUSSION

I. 15 U.S.C. § 1681n Confers a Private Right of Action to Enforce 15 U.S.C. § 1681c(g).

The FACTA provides a private right of action for willful noncompliance at 15 U.S.C. § 1681n, which provides that:

(a) Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of --

(1)(A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1000;

(2) such amount of punitive damages as the court may allow; and

(3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court. (emphasis added). "That with these words Congress created a private right of action for consumers cannot be doubted." Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057, 1059 (9th Cir. 2002) (emphasis added). What this Court is called upon to determine first in this case is whether ยง 1681n permits a consumer to sue for violation ...


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