On January 4, 2018, the United States District Court for the Western District of Pennsylvania adopted a Magistrate Judge’s Report and Recommendation, denying Kirkland’s, Inc. (“Kirkland’s”) motion to dismiss in a putative Fair and Accurate Credit Transactions Act (FACTA) class action.

As background, Plaintiffs Ashley Gennock and Jordan Budai allege that Kirkland’s handed them paper receipts on several occasions that displayed more than the last five digits of their credit card numbers, in violation of FACTA’s prohibition on “print[ing] more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.”  Plaintiffs further allege that they are at an “increased risk of identity theft and payment card fraud” because of the allegedly improper redaction.

Kirkland’s filed a motion to dismiss, arguing in part that Plaintiffs lacked standing to bring the case.  In opposition, Plaintiffs claimed that the receipts with more than five digits of their credit cards represent “the very harm that Congress sought to prevent” in enacting FACTA.

The Magistrate Judge, and ultimately the District Court Judge, sided with Plaintiffs, holding: “[A] plaintiff who can cite an explicit violation of FACTA’s truncation provision does not need to prove that he suffered or was at an increased risk of suffering actual identity theft in order to demonstrate standing for purposes of bringing suit.”  The Court denied Kirkland’s motion to dismiss for lack of standing.

This decision conflicts with other recent motion to dismiss decisions in FACTA cases, including decisions in Fullwood v. Wolfgang’s Stakehouse, Inc., et al. and Katz v. The Donna Karan Company, LLC.

The case is Gennock, et al. v. Kirkland’s, Inc., No. 2:17-cv-00454 (W.D. Pa.).  We will continue to monitor for developments.