United States District Court, W.D. Pennsylvania
ASHLEY GENNOCK and JORDAN BUDAI, individually and on behalf of all others similarly situated, Plaintiffs,
KIRKLAND'S, INC., Defendant.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
Facts Alleged in Complaint
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. ¶¶
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.)
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.)
Relevant Procedural History
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.
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 ...