2020 IL App (2d) 180911
Ill. App. Ct.2021Background
- Plaintiffs Hugo and Sharon Soto used debit cards at Six Flags on August 5, 2017 and received printed receipts showing the last four digits plus the first six digits (Issuer Identification Number) of their cards.
- Plaintiffs filed a putative class action alleging Six Flags willfully violated FACTA’s truncation requirement (15 U.S.C. § 1681c(g)(1)) and sought statutory damages under 15 U.S.C. § 1681n(a)(1)(A).
- Defendant removed to federal court; the case was remanded to Illinois state court where Six Flags moved to dismiss under 735 ILCS 5/2-619(a)(9) for lack of standing and under 2-615 for failure to plead willfulness.
- The trial court granted dismissal under section 2-619(a)(9), finding plaintiffs lacked standing because they alleged no actual injury beyond the printing of six digits.
- On appeal the Second District reversed, holding (1) FACTA’s statutory-damages provision allows a suit without pleading actual damages and (2) plaintiffs adequately pleaded willfulness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to pursue statutory damages under FACTA | Plaintiffs: a willful statutory violation alone permits statutory damages; no separate actual-injury pleading required | Six Flags: Illinois should require a concrete, actual injury (akin to federal Article III); printing IIN is harmless/no PII | Held: Plaintiffs have standing in Illinois to seek statutory damages for a willful FACTA violation without pleading actual damages; reversed dismissal |
| Appropriateness of 2-619 dismissal on standing grounds | Plaintiffs: 2-619 is improper because standing is an affirmative defense and factual issues remain | Six Flags: dismissal appropriate because no injury is alleged | Held: 2-619 dismissal was improper here; factual issues and statutory-rights standing preclude dismissal at that stage |
| Whether plaintiffs adequately alleged willfulness under FACTA | Plaintiffs: alleged facts (notice of FACTA, failure to audit terminals, contractual obligations to card networks) support knowing or reckless violation | Six Flags: printing first six digits was not harmful and not willful; at most a technical violation | Held: Allegations sufficiently plead willfulness (knowing or reckless); willfulness often requires factual development and cannot be resolved at pleading stage |
| Statutory interpretation of 15 U.S.C. §1681n(a)(1)(A) (“or” between actual and statutory damages) | Plaintiffs: "or" is disjunctive; statutory damages are an alternative to actual damages | Six Flags: urged interpretation requiring actual harm for standing | Held: "Or" is disjunctive; statutory damages are available without proof of actual damages when statutory violation is willful |
Key Cases Cited
- Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Ill. S. Ct.) (a statutory privacy-right violation can suffice to pursue liquidated damages)
- Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462 (Ill.) (Illinois standing doctrine may be more permissive than federal Article III standing)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. 2016) (federal Article III standing requires a concrete injury; federal limits on justiciability)
- Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (U.S. 2007) (willfulness under FCRA includes reckless disregard; objective unreasonableness standard)
- Farmer v. Brennan, 511 U.S. 825 (U.S. 1994) (definition of recklessness—high risk known or obvious)
- Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112 (Ill.) (affirmative matter must be pleaded under section 2-619; motion admits legal sufficiency)
- Yuretich v. Sole, 259 Ill. App. 3d 311 (Ill. App.) (willfulness often requires factual development and close scrutiny of evidence)