Opinion
Case No. SACV 06-1248 JVS (RNBx).
March 12, 2007
Attorneys Present for Plaintiffs: Gregory N. Karasik, J. Mark Moore.
Attorneys Present for Defendants: Jeffrey M. Lenkov, David J. Wilson.
Proceedings: Defendant's Motion to Dismiss
Cause called and counsel make appearances. Tentative ruling issued. Counsel submit to tentative ruling. The Court denies defendant's motion to dismiss and rules in accordance with tentative as follows:
I. BACKGROUND
This putative class action arises under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681, et seq. The FCRA prohibits printing certain credit card or debit card information on receipts. See 15 U.S.C. § 1681c(g). Plaintiff Saeed Eskandari ("Eskandari") alleges that defendant IKEA U.S., Inc. ("IKEA") has willfully violated Section 1681c(g) by issuing receipts that included the restricted information. (See Complaint, ¶¶ 1, 10-11, 14-15, 24-25.) In the instant motion, IKEA moves to dismiss the complaint on the ground that the FCRA does not create a private right of action to enforce Section 1681c(g).
II. LEGAL STANDARD
III. DISCUSSION
12Conley v. Gibson355 U.S. 4145-46Cahill v. Liberty Mut. Ins. Co.80 F.3d 336337-38Pareto v. F.D.I.C.139 F.3d 696699 15 U.S.C. § 1681nsee also15 U.S.C. § 1681oNelson v. Chase Manhattan Mortgage Corp.282 F.3d 10571059
As used the FCRA, the term "consumer" means "an individual." 15 U.S.C. § 1681a(b). IKEA argues that there is no private right of action to enforce Section 1681c(g) because that section refers to "cardholders" rather than "consumers." See 15 U.S.C. § 1681c(g). IKEA asserts that cardholders may be entities or individuals, and that Section 1681c(g) therefore imposes a broader requirement that cannot create liability under Section 1681n. (See Def.'s Motion at 3-4 ("[A] private individual is given standing to sue to enforce only those FCRA requirements that apply only to individual consumers.").)
"[N]o person that accepts credit cards or debit cards for the transaction of business shall print more than the last five digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction." 15 U.S.C. § 1681c(g) (emphasis added).
The Court need not decide whether the definition of "cardholder" set forth in the Truth in Lending Act at 15 U.S.C. § 1602(m) also applies to the FCRA as argued by IKEA. IKEA concedes that some cardholders are consumers, while Eskandari concedes that not all cardholders are consumers. For purposes of this motion, it is sufficient that Eskandari falls within that group of cardholders who are also consumers.
The Court does not read Section 1681n so narrowly. A provision need not be explicitly directed at consumers to create liability.See Nelson, 282 F.3d at 1060 ( 15 U.S.C. § 1681s-2(b) may be enforced by private action even though it does not specifically mention "consumers"). Although Section 1681c(g) applies to all cardholders and not just individual consumers, there can be no doubt that it creates requirements with respect to consumers because many of the cardholders are in fact individual consumers. Importantly, Congress did not explicitly prohibit private enforcement of Section 1681c(g) through Section 1681n. Compare 15 U.S.C. § 1681c(g) with 15 U.S.C. §§ 1681g(e)(6), 1681m(h)(8), 1681s-2(c).
IKEA argues that Section 1681s-2(b) explicitly uses the term "consumer." (See Def.'s Reply at 13, citing 15 U.S.C. § 1681s-2(b)(1)(E).) At the time Nelson was decided, however, Section 1681s-2(b) only referred to "persons" and "consumer reporting agencies." The statute was amended by the Fair and Accurate Credit Transactions Act of 2003. See Pub.L. No. 108-159, § 314, 117 Stat. 1952.
Washington v. CSC Credit Services, Inc., 199 F.3d 263 (5th Cir. 2000), upon which IKEA relies, is inapposite. Washington holds that "Congress vested the power to obtain injunctive relief [under the FCRA] solely with the [Federal Trade Commission]." Id. at 268. Eskandari does not request injunctive relief. He requests statutory damages, punitive damages, and attorneys' fees — relief that is specifically authorized by Section 1691n.
The Court finds that the plain language of Sections 1681c(g) and 1681n provides a private right of action for consumers. As this was a matter of first impression and because Section 1681c(g) does not use the term "consumers," the Court finds that IKEA's motion was not filed in bad faith or for purposes of harassment. Accordingly, the Court declines to award Eskandari attorney's fees under 15 U.S.C. § 1681n(c).
IV. CONCLUSION
For the foregoing reasons, IKEA's motion to dismiss is denied. The Court directs defendant to file their answer within 20 days.