Engel v. Scully & Scully, Inc.
2011 U.S. Dist. LEXIS 103948
S.D.N.Y.2011Background
- FACTA prohibits printing more than the last 5 digits of card numbers and expiration dates on receipts provided to cardholders, effective at different dates depending on machine use; the provision applies only to electronic receipts.
- Engel bought goods at Scully & Scully, Inc. using a card and received an electronically printed receipt displaying all 16 digits and expiration date.
- Engel alleges it was Scully & Scully’s regular practice to print non-truncated receipts and provide them to consumers.
- Plaintiff attached a non-truncated receipt and affidavits supporting the claim of a standard practice, while defendant submitted its own witnesses disputing non-truncation or knowledge of non-truncation.
- The court denied in part and granted in part the defendant’s 12(b)(6) motion and granted Engel’s Rule 23 class certification, defining the class to include all customers who made in-store debit/credit card purchases from Dec 4, 2006 through Apr 2010.
- The court held that negligent violations were not pled with damages, but willful FACTA violations were pled and certified for a class; the class period ends in Apr 2010 and class counsel was appointed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing and damages for FACTA claim | Engel has standing based on receiving a non-truncated receipt. | Receipt labeled Merchant Copy undermines standing and failure to plead injury. | Plaintiff has standing; negligent claim dismissed; willful claim viable. |
| Negligent violation sufficiency | Facts show non-truncated receipts were provided. | Label Merchant Copy defeats negligence claim; no damages alleged. | Negligence claims dismissed; only willful FACTA claim remains. |
| Rule 23 class certification | Class should cover all customers with receipts lacking truncation. | Class definitions circular and unascertainable; protections needed. | Class certified with a defined class: all persons who made in-store purchases using a debit or credit card from Dec 4, 2006 through Apr 2010; ascertainability and commonality satisfied. |
| Ascertainability and common questions | Class can be identified via business records and receipts. | Identifying class members would be complex and individualized. | Class ascertainable; common questions predominate; management of case via class action appropriate. |
| Willfulness and damages in FACTA context | Willful violation supports statutory damages; class-wide proof appropriate. | Merchant Copy issue and lack of damages argue against recovery. | Willful violation viable; damages limited to statutory; negligent damages rejected. |
Key Cases Cited
- Twombly v. Bell Atlantic Corp., 550 U.S. 544 (U.S. 2007) (pleading standard—plausibility required for claims to survive dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (face plausibility standard for pleading)
- Friedl v. City of New York, 210 F.3d 79 (2d Cir. 2000) (construe complaint; consider attached documents)
- Carver v. City of New York, 621 F.3d 221 (2d Cir. 2010) (standing burden and pleading standards)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing elements: injury, causation, redressability)
- Warth v. Seldin, 422 U.S. 490 (U.S. 1975) (standing and injury requirement clarified)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (commonality and predominance in class actions; broad discretion)