On April 7, defendants Wolfgang’s Steakhouse, Inc. and ZMF Restaurants LLC again urged a New York federal court judge to dismiss a Fair and Accurate Transactions Act putative class action based on the Supreme Court’s decision in Spokeo, Inc. v. Robins.
In Fullwood v. Wolfgang’s Steakhouse, Inc., plaintiff Cynthia Fullwood alleged that the defendants violated FACTA by printing the expiration date on sales receipts. Fullwood does not allege that any pecuniary damages flowed from this act, but she seeks statutory damages on behalf of herself and the putative nationwide class. Defendants previously moved to dismiss, arguing that Fullwood lacked standing to pursue her claims. The Court granted the motion, finding that Fullwood’s Second Amended Complaint “fails plausibly to plead a concrete and particularized injury.” However, because Fullwood’s Second Amended Complaint predated Spokeo, the Court allowed Fullwood to file a Third Amended Complaint.
The defendants have now filed a motion to dismiss the Third Amended Complaint, arguing that Fullwood has still failed to allege any concrete tangible injury with respect to any credit card receipt. In particular, they argue that “[t]here are no allegations that any[one] has accessed or attempted to access Plaintiff’s discarded credit card receipts,” and regardless, “it would be nearly impossible for a fraudster to utilize just the credit card expiration date alone to steal Plaintiff’s identity or use her credit card.”
We will continue to monitor the case for a final decision.