Módulo “Estructura y Composición”

For the purposes of § 1681c(g) litigation, Safeco presents two fundamental questions of interpretation for courts. First, should Safeco be interpreted as adding to preexisting jurisprudence on the meaning of willfulness in the civil context, or does it constitute the exclusive measure of willfulness in the context of FACTA? Second, does Safeco’s not-objectively-unreasonable-reading standard provide an affirmative defense, or can that standard be used to foreclose the grant of a motion to dismiss? If Safeco is interpreted as the exclusive measure of willfulness in the civil context such that it forecloses the grant of a motion to dismiss because of § 1681c(g)’s clarity, then every violation of § 1681c(g) becomes a willful violation. Such an interpretation effectively reads out of the statute the possibility of negligent violations of § 1681c(g).

Courts have split on these two questions. Courts granting motions to dismiss—like the Southern District of New York in Paris Baguette I and II—tend to interpret Safeco with the aid of earlier

187. Paris Baguette I, 2014 WL 2990110, at *4.

188. Paris Baguette II, 41 F. Supp. 3d 411, 413 (S.D.N.Y. 2014), appeal docketed, No.

14-3709 (2d Cir. Oct. 2, 2014).

cases like Trans World Airlines and do not use Safeco to foreclose grants of motions to dismiss.¹⁸⁹ Cases denying motions to dismiss take the opposite tack.¹⁹⁰

As with many of the issues arising in § 1681c(g) litigation, there are few appellate decisions interpreting Safeco in this context and none directly on point.¹⁹¹ The appellate case that most nearly addresses the proper interpretation of Safeco is Fuges v. Southwest Financial Services, Ltd.¹⁹² In Fuges, the defendant, a provider of property reports containing credit information such as liens, was sued for failure to prepare its property reports in compliance with the FCRA, as amended by FACTA.¹⁹³ The defendant moved to dismiss, arguing that the FCRA did not apply to it, or, if it did, that there was no willful violation because its interpretation of the statute was not objectively unreasonable.¹⁹⁴ The district court agreed and granted summary judgment, reasoning that whether or not the FCRA applied, under the Safeco standard no reasonable jury could find that the defendant had willfully violated the statute.¹⁹⁵ On appeal, the plaintiff argued that, prior to the litigation, the defendant had never actually interpreted the statute at all, and so should not be entitled to the

“Safeco reasonable interpretation defense.”¹⁹⁶ The Third Circuit rejected this argument, affirming the district court’s grant of summary judgment.¹⁹⁷

189. See, e.g., Paris Baguette I, 2014 WL 2990110, at *3–4 (interpreting Safeco with the aid of Trans World Airlines); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 127–29 (1985) (holding that to establish a knowing violation requires showing that the defendant knew her conduct violated a known legal obligation).

190. See, e.g., Buechler v. Keyco, Inc., No. WDQ-09-2948, 2010 WL 1664226, at *2 (“Buechler has sufficiently alleged willfulness. Unlike the provision of FCRA at issue in Safeco, the FACTA provision Keyco allegedly violated is unambiguous.”).

191. For example, Schlahtichman v. 1-800 Contacts, Inc. is a straightforward application of Safeco to a case dealing with an email receipt. 615 F.3d 794, 798–804 (7th Cir. 2010) (affirming the district court’s grant of the defendant’s motion to dismiss, holding that internet receipts are not printed and so fall outside of § 1681c(g)). Similarly, Redman v.

RadioShack Corp., in the portion of the decision devoted to the companion case Nicaj v.

Shoe Carnival, affirming the district court’s grant of dismissal with prejudice, held that omitting only the year of the expiration date constituted “a permissible interpretation of an ambiguous statute.” 768 F.3d 622, 639–40 (7th Cir. 2014). And the Third Circuit, in Long v. Tommy Hilfiger U.S.A., held that omitting the year, while based on an erroneous interpretation of FACTA, was not a willful violation because such omission was based on a not objectively unreasonable interpretation. 671 F.3d 371, 377–78 (3d Cir. 2012) (affirming a district court’s grant of a motion to dismiss).

192. Fuges v. Sw. Fin. Servs., Ltd., 707 F.3d 241 (3d Cir. 2012).

193. Id. at 245.

194. Id.

195. Id. at 243.

196. Id. at 249 (internal quotation marks removed).

197. Id. at 249–51, 255.

In reaching its decision, the Third Circuit repeatedly characterized Safeco as a “test” or “defense” rather than as an elaboration on what constitutes reckless behavior.¹⁹⁸ It did so because Safeco made clear that, for purposes of the test established, intent and other subjective states of mind are irrelevant.¹⁹⁹ In other words, Safeco creates a defense that requires an objective analysis under which the defendant’s subjective state of mind does not matter. A reasonable interpretation of the statute is not dispositive evidence of an actual, subjective lack of willfulness (i.e., recklessness or knowingly engaging in conduct violating the statute). Instead, a defendant who shows an objectively reasonable interpretation of the statute bypasses entirely the question of subjective willfulness and defeats the plaintiff’s claim of a willful violation by an affirmative defense. This is in keeping with the traditional understanding of an affirmative defense, which defeats the plaintiff’s claim even if she has made out a prima facie case by establishing the elements of the claim.²⁰⁰ Accordingly, Safeco does not so much define “willfulness”—and so affect the struggle to establish that element of a claim for statutory damages—but rather provides an affirmative defense against a prima facie claim of a willful violation. This reading of Safeco interprets the decision within the Court’s broader jurisprudence on willfulness in the civil context while being highly congenial to § 1681c(g) defendants because even where no Safeco defense is available, the plaintiff must still adequately plead willfulness and eventually carry the burden of persuasion on that element—the very piece of the analysis that so many courts neglect in applying Safeco.²⁰¹

198. Id. passim.

199. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 70 n.20 (2007) (“To the extent that [plaintiffs] argue that evidence of subjective bad faith can support a willfulness finding even when the company’s reading of the statute is objectively reasonable, their argument is unsound.”).

200. 5 CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE &

PROCEDURE § 1270(3d ed. 2004) (observing that the Federal Rules of Civil Procedure’s recognition of affirmative defenses is a “lineal descendant of the common law plea by way of ‘confession and avoidance,’ which permitted a defendant who was willing to admit that the plaintiff’s declaration demonstrated a prima facie case to then go on and allege additional new material that would defeat the plaintiff’s otherwise valid cause of action”).

In federal courts today, “[a]n affirmative defense will defeat the plaintiff’s claim if it is accepted by the district court or the jury.” Id. Whereas in the absence of an affirmative defense a defendant must prevail by preventing the plaintiff from meeting her burden of persuasion as to the elements of the claim, by asserting an affirmative defense the defendant provides himself an avenue to victory by meeting his own burden of persuasion on the elements of the defense.

201. See supra Parts II–III.

A recent Southern District of New York case similarly concludes that the unavailability of a Safeco defense does not determine whether a plaintiff has adequately alleged a willful violation of FACTA. In Fullwood v. Wolfgang’s Steakhouse, Inc.,²⁰² a § 1681c(g) case, the court denied the defendant’s motion to dismiss but made clear that the plaintiff could file a proposed amended complaint to which the defendant would have the opportunity to offer a new motion to dismiss.²⁰³ The court explained that while the plaintiff’s first amended complaint—which had been the basis of the briefing for the motion to dismiss—fell short of adequately pleading willfulness, a new proposed complaint might not be so deficient and deserved briefing in its own right.²⁰⁴

To reach this conclusion, the court engaged in an extended discussion of Safeco and what was necessary to adequately plead willfulness in a § 1681c(g) case.²⁰⁵ First, the court pithily summarized the interpretive difficulty presented by Safeco: “[I]t is unclear how to apply the Safeco Court’s standards for a knowing or reckless violation of the FCRA when the proper interpretation of the particular statutory provision is not in doubt.”²⁰⁶ The court then characterized this question of interpretation as presenting two possible answers—

either Safeco forecloses any inquiry into a defendant’s subjective willfulness because of the clarity of § 1681c(g), or a plaintiff must plead and eventually prove a subjectively knowing or reckless violation even in the absence of a not-objectively-unreasonable reading of the statute. Continuing, the court observed, “If there is only one reasonable reading of the statute, does a willful violation flow automatically once knowledge of the statute’s requirements is demonstrated? Or must there be awareness that the defendant’s behavior violates or recklessly runs the risk of violating those requirements?”²⁰⁷

202. Fullwood v. Wolfgang’s Steakhouse, Inc. (Fullwood I), No. 13 Civ. 7174(KPF), 2014 WL 6076733 (S.D.N.Y. Nov. 14, 2014).

203. Fullwood I, 2014 WL 6076733, at *1 (“Defendants’ motion to dismiss is denied without prejudice to refile in light of Plaintiff’s proposed amendment to her complaint . . . .”). Despite the court’s characterization, this result is the functional equivalent of a grant without prejudice of defendant’s motion to dismiss, insofar as the plaintiff will file an amended complaint to which the defendant will have the opportunity to respond with a second 12(b)(6) motion.

204. Id. at *7–8.

205. See id. at *4.

206. Id. at *4.

207. Id.

The court then established that both district and appellate courts have interpreted Safeco in light of other federal civil statutes.²⁰⁸ At least two district courts, including the Southern District of New York in Paris Baguette I and II, had taken the approach of requiring subjective recklessness, interpreting Safeco in the context of earlier cases like Trans World Airlines.²⁰⁹ Further, appellate courts have used Safeco to interpret the meaning of willfulness in other federal statutes.²¹⁰ Finding this approach persuasive, the court in Fullwood concluded that knowledge alone is not enough to make out a willful violation; instead, knowledge of FACTA and its requirements must be coupled with “intentionally, knowingly, or recklessly violat[ing]

those requirements.”²¹¹

Though lacking an authoritative Supreme Court or appellate decision on point, this interpretation of Safeco as providing an additional defense to be used alongside, rather than in place of, subjective willfulness has much to recommend it. First, abundant persuasive authority supports this interpretation.²¹² As the Fuges court points out,²¹³ the Supreme Court’s own dicta in Safeco implies that, where there is no objectively reasonable reading of the statute supporting the defendant’s conduct, subjective intent still matters because the plaintiff must still carry the burden of persuasion on the willfulness element to recover statutory damages.²¹⁴ Safeco then stands only for the proposition that where there is an objectively reasonable reading, the defendant’s subjective state of mind is irrelevant.²¹⁵ Further, the Safeco Court itself emphasized that it was

208. See id. at *4–5.

209. Id. (citing Crupar-Weinmann v. Paris Baguette, Am., Inc. (Paris Baguette I), No.

13 Civ. 7013(JSR), 2014 WL 2990110, at *3–4 (S.D.N.Y. June 30, 2014), appeal docketed, No. 14-3709 (2d Cir. Oct. 2, 2014); Vidoni v. Acadia Corp., No. 11-cv-00448-NT, 2012 WL 1565128, at *4 (D. Me. Apr. 27, 2012)).

210. Id. at *5 (citing Fryer v. A.S.A.P. Fire & Safety Corp., 658 F.3d 85, 91 (1st Cir.

2011) (using Safeco to interpret willfulness under the Age Employment Discrimination Act); Armalite, Inc., v. Lambert, 544 F.3d 644, 648 (6th Cir. 2008) (using Safeco to interpret willfulness under the Gun Control Act of 1968).

211. Id. at *6.

212. See, e.g., Fuges v. Sw. Fin. Servs., Ltd., 707 F.3d 241, 243 (3d Cir. 2012) (characterizing Safeco as establishing a defense); Safeco Ins. Co. of Am. v. Burr, 551 U.S.

47, 69, 70 n.20 (2007) (finding no need to inquire into defendant’s state of mind given the not objectively unreasonable reading of the statute).

213. Fuges, 707 F.3d at 248–49.

214. Safeco, 551 U.S. at 70 n.20 (“Respondent-plaintiffs argue that evidence of subjective bad faith must be taken into account in determining whether a company acted knowingly or recklessly for purposes of § 1681n(a). To the extent that they argue that evidence of subjective bad faith can support a willfulness finding even when the company’s reading of the statute is objectively reasonable, their argument is unsound.”).

215. Id.

not “deviat[ing] from the common law understanding.”²¹⁶ Though no appellate court has ruled directly on point, Fuges²¹⁷ and the appellate decisions cited in Fullwood I²¹⁸ show that appellate courts have generally interpreted Safeco in this vein as well. Persuasive district court opinions granting motions to dismiss in § 1681c(g) cases, such as Paris Baguette I and II,²¹⁹ further buttress the soundness of this interpretation.

Sound interpretive and policy reasons also counsel this approach to Safeco. Unless otherwise indicated, common law terms should be construed according to their common law understanding, and Congress crafts legislation expecting the courts to do just that.²²⁰ Further, this interpretation avoids creating a balkanized Supreme Court jurisprudence on civil willfulness, where different standards apply depending on the statutory context. The alternative—

interpreting Safeco as the exclusive measure of willfulness in the context of FACTA—would also read out of the statute claims for negligent violations of § 1681c(g) because that provision’s clarity precludes any alternative, objectively reasonable reading.

Additionally, lawsuits based on the expiration date alone offer no consumer benefit,²²¹ and, still more unfavorably, litigation costs will be passed on to consumers even in the absence of awards or settlements.²²² By interpreting Safeco in line with other decisions on willfulness rather than as foreclosing motions to dismiss for failure to adequately plead willfulness, these costs can be somewhat mitigated by the greater frequency of grants of motions to dismiss and the lower value of settlements obtained without the threat of discovery.

CONCLUSION

Given the high costs and scant benefits of § 1681c(g) lawsuits based only on the printing of expiration dates, this Comment has

216. Id. at 69 (“Here, there is no need to pinpoint the negligence/recklessness line, for Safeco’s reading of the statute, albeit erroneous, was not objectively unreasonable.”).

217. Fuges, 707 F.3d at 249.

218. Fullwood v. Wolfgang’s Steakhouse, Inc. (Fullwood I), No. 13 Civ. 7174(KPF), 2014 WL 6076733, at *4–5 (S.D.N.Y. Nov. 14, 2014).

219. Crupar-Weinmann v. Paris Baguette, Am., Inc. (Paris Baguette I), No. 13 Civ.

7013(JSR), 2014 WL 2990110, at *3–4 (S.D.N.Y. June 30, 2014), appeal docketed, No. 14-3709 (2d Cir. Oct. 2, 2014); Crupar-Weinmann v. Paris Baguette Am., Inc. (Paris Baguette II), 41 F. Supp. 3d 411, 413 (S.D.N.Y. 2014), appeal docketed, No. 14-3709 (2d Cir. Oct. 2, 2014).

220. Safeco, 551 U.S. at 48 (citing Beck v. Prupis, 529 U.S. 494, 500–01 (2000); Comm’r v. Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993)).

221. Supra notes 20–22 and accompanying text.

222. Supra notes 20–28 and accompanying text.

argued that courts ought to take two related measures to curtail the social costs of § 1681c(g) litigation in light of the lack of consumer protection benefit delivered by the expiration date requirement. First, district courts should not hesitate to engage in the “common sense”

inquiry required by Twombly and Iqbal—an inquiry motivated by the costs of discovery and the dangers of in terrorem strike suits.²²³ Second, given that courts cannot decide a motion to dismiss challenging the adequacy of allegations of willfulness without reference to Safeco, courts ought to interpret Safeco in the context of the Supreme Court’s broader civil willfulness jurisprudence and the term’s common law meaning. By so doing, courts can rein in abusive

§ 1681c(g) litigation.

While there are good legal and policy reasons for courts to take these steps, they may not be sufficient. The courts cannot write

§ 1681c(g) out of FACTA and the FRCA. Additionally, plaintiffs’

attorneys are likely to adapt to heightened pleading standards and will find creative ways to adequately plead willfulness.²²⁴ Instead, a legislative solution is necessary. The two simplest and clearest solutions would be either to: (1) remove entirely the expiration date requirement from § 1681c(g); or (2) modify the provision for statutory damages such that none are available where only an expiration date has been printed, maintaining the possibility of statutory damages for willful violations of the truncation requirement. Other possibilities include prohibiting statutory damages for class action suits or placing a ceiling on aggregate statutory damages to limit potential liability.²²⁵

Given the lack of any appreciable consumer benefit from

§ 1681c(g) litigation based on the printing of an expiration date, proposals to merely cap aggregate statutory damages do not go far enough. Such proposals would merely reduce the costs to be passed on to consumers. But the lack of benefits to be gained by these suits makes any such cost a net loss to consumer welfare. Of the other proposals, removing the possibility of statutory damages might be preferable to removing the expiration date provision altogether. This would leave open the possibility of recovery were some plaintiff to

223. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557–58 (2007).

224. See, e.g., Fullwood v. Wolfgang’s Steakhouse (Fullwood I), No. 13 Civ.

7174(KPF), 2014 WL 6076733, at *7–8 (S.D.N.Y. Nov. 14, 2014) (discussing how much knowledge is needed to permit a plausible inference of a willful violation and how plaintiff’s proposed complaint may meet that standard).

225. See Paul Karlsgodt, Statutory Penalties and Class Actions: Social Justice or Legalized Extortion?, 90 DENV.U.L.REV.ONLINE 43, 47 (2013).

suffer actual damages through the printing of his card’s expiration date.

At the same time, in the absence of decisive judicial or legislative remedies, point-of-sale systems providers and companies with retail operations ought to ensure that the receipts they print are, and remain, FACTA compliant. The testing of new point-of-sale systems and upgrades to older systems should receive special attention.

Although the major players in the point-of-sale industry understand what FACTA requires and their products comply with FACTA by default,²²⁶ companies that develop their own point-of-sale systems or depend on less established point-of-sale providers must be especially vigilant. Despite FACTA-compliant defaults, modern point-of-sale systems are highly configurable by persons without technical training,²²⁷ and the possibility remains that personnel unaware of FACTA’s requirements could inadvertently alter the configuration of a point-of-sale system to print noncompliant receipts.²²⁸ Merchants should put in place safeguards to prevent such personnel from altering at least those configuration options that are pertinent for FACTA compliance. The potential costs of noncompliance are too great to ignore.

226. Telephone Interview with Jeffrey J. Hawkins, supra note 52.

227. Id.

228. Id.

APPENDIX A. PRE-IQBAL § 1681C(G)DECISIONS ON 12(B)(6) MOTIONS TO DISMISS ARGUING FAILURE TO ADEQUATELY PLEAD

WILLFULNESS AND EXCLUDING ONLINE PURCHASES Date Case Name Disposition Citation 3/12/07 Clark v. Marshalls

of MA, Inc. Denied 2007 WL 1100412 (C.D. Cal.) 4/03/07 Blanco v. El Pollo

Loco, Inc. Denied^† 2007 WL 1113997 (C.D. Cal.) 4/03/07 Aeschbacher v. Cal.

Pizza Kitchen, Inc. Denied 2007 WL 1500853 (C.D. Cal.) 4/05/07 Pirian v. In-N-Out

Burgers Denied^† 2007 WL 1040864

Gymboree Corp. Denied 2007 WL 1690886 (N.D. Cal.) 8/22/07 Iosello v. Leiblys,

Inc. Denied 502 F. Supp. 2d 782 (N.D. Ill.) 8/28/07 Korman v. Walking

Co. Denied^† 503 F. Supp. 2d 755

† It is unclear from the decision whether the expiration date, the credit card number, or both were printed. Although their precedential value is dubious, the author includes these cases to be comprehensive.

 

Date Case Name Disposition Citation 12/11/07 Ehrheart v.

Verizon Wireless Denied 547 F. Supp. 2d 463 (W.D. Pa.) 12/18/07 Follman v. Village

Squire, Inc. Denied 542 F. Supp. 2d 816 (N.D. Ill.) 2/25/08 Gamaly v. Tumi,

Inc. Denied 2008 WL 512718

(N.D. Cal.) 3/04/08 Miller v. Sunoco,

Inc. Denied 2008 WL 623806

(E.D. Pa.) 3/19/08

Dudzienski v.

Gordon Food Serv., Inc.

Denied 2008 WL 4372720 (N.D. Ill.)

APPENDIX B. POST-IQBAL § 1681C(G)DECISIONS ON 12(B)(6) MOTIONS TO DISMISS ARGUING FAILURE TO ADEQUATELY PLEAD

WILLFULNESS WHERE ONLY THE EXPIRATION DATE WAS PRINTED ON THE RECEIPT AND EXCLUDING ONLINE PURCHASES²²⁹ Date Case Name Disposition Citation 4/05/08 Howard v. Hooters Granted

2008 U.S. Dist.

Denied 2008 WL 2020375 (D. Kan.)

1/29/09 Kubas v. Standard

Parking Corp. Ill. Denied 594 F. Supp. 2d 1029 4/22/10 Buechler v. Keyco,

Inc. Denied 2010 WL 1664226

(D. Md.) 5/4/11 Zaun v. Tuttle, Inc. Denied 2011 WL 1741912

(D. Minn.) 10/12/11 Sanders v. W&W

Wholesale, Inc. Denied 2011 WL 4840978 (N.D. Ill.) 10/18/11 Seo v. CC CJV Am.

Holdings, Inc. Granted 2011 WL 4946507 (C.D. Cal.) 4/27/12 Vidoni v. Acadia

Corp. Granted 2012 WL 1565128

(D. Me.) 3/19/13 Dover v. Shoe

Show, Inc. Denied 2013 WL 1748337 (W.D. Pa.) 5/13/13 Rouse v. Hennepin

Cty. Denied 2013 WL 1969790

229. Practitioners should also be aware of the recent case in the Southern District of New York granting with prejudice a 12(b)(6) motion where the defendant failed to properly truncate the credit card number. Katz v. Donna Karan Int’l, Inc., No. 14 Civ.

740(PAC), 2015 WL 405506 (S.D.N.Y. Jan. 30, 2015). This case is unprecedented in its dismissal, although it remains to be seen whether this case represents an outlier or the beginning of a new trend among federal district courts.

Date Case Name Disposition Citation 6/23/14 Lavery v.

RadioShack Corp. Denied 2014 WL 2819037 (N.D. Ill.) 6/30/14

Crupar-Weinmann v. Paris Baguette

Am., Inc.

Granted with prejudice

2014 WL 2990110 (S.D.N.Y.)

11/14/14

Fullwood v.

Wolfgang’s Steakhouse, Inc.

(Fullwood I)

Denied with leave to refile

2014 WL 6076733 (S.D.N.Y.)

12/29/14

Reed v. Swatch Grp. (US), Inc.

(Reed I)

Granted without prejudice

2014 WL 7370031 (D.N.J.)

7/23/15

Fullwood v.

Wolfgang’s Steakhouse, Inc.

(Fullwood II)

Denied 2015 WL 4486311 (S.D.N.Y.)

10/01/15

Reed v. Swatch Grp. (US), Inc.

(Reed II)

Denied 2015 WL 5822669 (D.N.J.)

J.PATRICK REDMON^**

** My thanks go first to my long-suffering and much-patient wife, whose support made this

** My thanks go first to my long-suffering and much-patient wife, whose support made this

In document Implementacion de la Interfaz de Usuario del Sistema Integral para la Gestion de Recursos Humanos. (página 67-79)