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Gennock v. Kirkland's Inc.

United States District Court, W.D. Pennsylvania

September 24, 2019

ASHLEY GENNOCK and JORDAN BUDAI, individually and on behalf of all others similarly situated, Plaintiffs,
v.
KIRKLAND'S, INC., Defendant.

          Cercone Judge

          REPORT AND RECOMMENDATION

          PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE.

         I. Recommendation

         Upon review and consideration of the Joint Motion for Determination of Subject Matter Jurisdiction filed by the parties, it is respectfully recommended that this case be dismissed for lack of subject matter jurisdiction.

         II. Report

         Plaintiffs Ashley Gennock and Jordan Budai brought this action individually and on behalf of all others similarly situated against Defendant, Kirkland's, Inc., alleging violations of the Fair and Accurate Credit Transactions Act, 15 U.S.C. § 1681c(g) (FACTA). Specifically, they allege that contrary to the express requirements of the Act, Kirkland's provided them on several occasions with paper receipts that displayed more than the last five digits of their credit card numbers.

         Presently before the Court is a Joint Motion for Determination of Subject Matter Jurisdiction (ECF No. 43). The parties request that the Court determine whether, in light of a recent decision by the United States Court of Appeals for the Third Circuit, Plaintiffs have standing to bring this action.

         A. Facts Alleged in Complaint

         Ashley Gennock alleges that on or about April 8, 2017, she made multiple purchases with her personal credit/debit card at the Kirkland's store located in Grove City, Pennsylvania. She claims that on more than one occasion, Kirkland's provided her with a paper receipt which displayed the first six and last four digits of her personal credit/debit card, in violation of FACTA's requirements. She has retained some, but not all, of her FACTA-violating receipts. She alleges that she "is at increased risk of identity theft and payment card fraud-the precise harm Congress sought to prevent with its passage of FACTA." (Compl. ¶¶ 15-16.) [1]

         Jordan Budai similarly states that on or about February 18, 2017, he made a purchase with a personal credit/debit card at the Kirkland's store in Grove City, Pennsylvania and has made several other purchases from Kirkland's. On more than one occasion, he alleges, Kirkland's provided him with a paper receipt which displayed the first six and last four digits of his personal credit/debit card in violation of FACTA's requirements. He has retained some, but not all, of the FACTA-violating receipts. He alleges that he "is at increased risk of identity theft and payment card fraud-the precise harm Congress sought to prevent with its passage of FACTA." (Compl. ¶¶ 17-18.)

         According to the Complaint, Kirkland's operates approximately 376 retail stores in 35 states and routinely provided paper receipts to its customers at the point of sale in its various retail stores which displayed more than the last five digits of the customers' credit and/or debit cards, in violation of the requirements of FACTA. (Compl. ¶¶ 19-20.) Plaintiffs allege that Kirkland's had actual knowledge of FACTA's truncation requirements or acted recklessly with respect to them, specifically with regard to the requirement that no more than the last five digits of credit and debit cards be printed on receipts presented to consumers at the point of sale. They further claim that Kirkland's has had agreements with various credit card issuers, including VISA, Mastercard, American Express and others, which would have apprised Kirkland's of its obligation to truncate credit and debit card account numbers. Plaintiffs further allege that Kirkland's also received periodic communications and monthly statements from credit card issuers and/or its merchant banks advising it of its obligation and that should have also received this information from its Point of Sale provider and from trade association and/or other similar entities. (Compl. ¶¶ 47-52.)

         B. Relevant Procedural History

         Plaintiffs commenced this class action on April 10, 2017 pursuant to Rule 23(a) and (b) of the Federal Rules of Civil Procedure. (Compl. ¶¶ 53-54.) They seek an order certifying the class and appointing them as class representatives with their counsel as class counsel, an award of statutory damages pursuant to 15 U.S.C. § 1681n(a)(1)(A) for Defendant's willful violations, an award of punitive damages pursuant to 15 U.S.C. § 1681n(a)(2), payment of costs of suit and reasonable attorney's fees pursuant to 15 U.S.C. § 1681n(a)(3), and other and further relief as the Court may deem proper. (Compl. at 18-19.) Federal question jurisdiction is based on the FACTA claim, 28 U.S.C. § 1331; 15 U.S.C. § 1681p.

         On January 24, 2018, subsequent to the denial of its Motion to Dismiss, Defendant moved for a stay of this action (ECF No. 31) in light of the pendency of Kamal v. J. Crew Group, Inc., No. 17-2345, which raised the issue of Article III standing in FACTA cases. On January 31, 2018, an order was entered granting Defendant's ...


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