2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-24-2012

Randy Long v. Tommy Hilfiger USA Inc

Precedential or Non-Precedential: Precedential

Docket No. 11-1554

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Recommended Citation

"Randy Long v. Tommy Hilfiger USA Inc" (2012). 2012 Decisions. Paper 1480.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1554

____________

RANDY LONG,

individually and on behalf of all others similarly situated,

 Appellant

v.

TOMMY HILFIGER U.S.A., INC.

____________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 09-cv-01701)

District Judge: Honorable Joy Flowers Conti

___________

Submitted Under Third Circuit LAR 34.1(a)

December 5, 2011

___________

Before: HARDIMAN, BARRY and VAN ANTWERPEN, 

Circuit Judges

(Opinion Filed: January 24, 2012)

___________

Gary F. Lynch

Stephanie K. Goldin

36 N. Jefferson Street

P.O. Box 7635

New Castle, PA 16107

Counsel for Appellant
2

John G. Papianou

Montgomery, McCracken, Walker & Rhoads, LLP

123 South Broad Street, 24th Floor

Philadelphia, PA 19109

-andStanley M. Stein

Feldstein, Grinberg, Stein & McKee

428 Boulevard of the Allies

Pittsburgh, PA 15219

Counsel for Appellee

___________

OPINION OF THE COURT

___________

BARRY, Circuit Judge

The Fair and Accurate Credit Transactions Act

(“FACTA”) provides, in relevant part, that merchants who

accept credit or debit cards shall not print “the expiration 

date” of the cards upon any receipt provided to the cardholder 

at the point of the sale. The question in this case is whether a 

retailer willfully violates that statute by printing the expiration 

month, but not the year, of the credit card on a receipt. The 

District Court answered that question in the negative, and 

dismissed appellant Randy Long’s complaint against Tommy 

Hilfiger U.S.A., Inc. We will affirm. 

I.

On October 29, 2009, Long made a purchase of “men’s 

neckwear” using his credit card at a Hilfiger store in Grove 

City, Pennsylvania. His credit card was charged $24.99, and 

Hilfiger gave him an electronically-printed receipt that 

redacted all but the last four digits of his credit card number 

and displayed the month, but not the year, of his card’s 

expiration date. In pertinent part, the receipt read as follows:
3

SALESPERSON # 8399

881300009340 MENS NECKWEAR 24.99

TOTAL $24.99

VISA $24.99

############9802

PURCHASE

EXPIRY: 04/## SWIPED 

(JA 46.) 

On December 29, 2009, Long filed this action against

Hilfiger alleging that Hilfiger’s printing of “EXPIRY: 04/##” 

on his receipt willfully violated FACTA’s prohibition against 

printing the expiration date. Long sued on his own behalf and 

asserted a putative nationwide class action on behalf of all 

others similarly situated. He sought statutory damages for the 

alleged violation, as well as punitive damages, attorneys’ fees, 

and costs. 

Hilfiger moved to dismiss Long’s complaint pursuant 

to Federal Rule of Civil Procedure 12(b)(1) and (6). With the 

consent of the parties, the District Court denied the motion 

without prejudice and referred the case to mediation. 

Mediation was unsuccessful, and Hilfiger renewed the motion 

to dismiss. On February 11, 2011, the District Court granted 

the motion, concluding that (1) printing the month of 

expiration, standing alone, did not constitute the printing of an 

“expiration date” under the statute, and (2) in any event, Long 

could not recover because the alleged violation was not 

“willful.” Long appealed.

II.

The District Court had jurisdiction over this case 

pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1681p. We 

have appellate jurisdiction under 28 U.S.C. § 1291, and 

exercise plenary review over both the grant of a motion to 

dismiss, Fagin v. Gilmartin, 432 F.3d 276, 281 (3d Cir. 

2005), and questions of statutory interpretation, DIRECTV 
4

Inc. v. Seijas, 508 F.3d 123, 125 (3d Cir. 2007). 

A.

In 2003, Congress amended the Fair Credit Reporting 

Act, 15 U.S.C. § 1681 et seq., by enacting FACTA. See Pub. 

L. No. 108-159, 117 Stat. 1952 (2003). As part of an effort to 

prevent identity theft, FACTA prohibits merchants from 

printing certain credit and debit card information on receipts. 

In particular, it provides:

(g) Truncation of credit card and debit card 

numbers

. . . . 

Except as otherwise provided in this subsection, 

no person that accepts credit cards or debit cards

for the transaction of business shall print 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.

15 U.S.C. § 1681c(g)(1).

1

FACTA imposes civil liability for violations of this 

provision, with the available remedies dependent upon 

whether the violation was negligent or willful. If a 

merchant’s violation was merely negligent, a plaintiff may 

recover only actual damages, and statutory damages are not 

available. Id. at § 1681o(a)(1). If the violation was willful, 

however, FACTA allows a plaintiff to elect to recover either 

actual damages or statutory damages between $100 and 

$1,000. Id. at § 1681n(a)(1)(A). A court may also award 

punitive damages in cases involving willful violations. Id. at 

§ 1681n(a)(2). 

 

 1 FACTA expressly limits the reach of this subsection “to 

receipts that are electronically printed, and [does] not apply to 

transactions in which the sole means of recording a credit card

or debit card account number is by handwriting or by an 

imprint or copy of the card.” 15 U.S.C. § 1681c(g)(2).
5

In 2008, almost five years after the passage of FACTA,

Congress enacted the “Credit and Debit Card Receipt 

Clarification Act” (“Clarification Act”). See Pub. L. No. 110-

241, 122 Stat. 1565 (2008). The Clarification Act arose from 

“hundreds of lawsuits” that were filed against merchants after 

the effective date of FACTA, alleging that merchants’ “failure

to remove the expiration date was a willful violation” of the 

statute, even though the account number was properly 

truncated. Clarification Act § 2(a)(4), 122 Stat. at 1565. 

Congress found that many merchants mistakenly believed that 

§ 1681c(g) would be satisfied solely by truncating the card 

number and not the expiration date. Id. at § 2(a)(3), 122 Stat. 

at 1565. It noted that none of the lawsuits that had been filed 

alleged any actual harm to the consumer’s identity, and 

“[e]xperts in the field agree that proper truncation of the card 

number . . . regardless of the inclusion of the expiration date, 

prevents a potential fraudster from perpetrating identity theft 

or credit card fraud.” Id. at § 2(a)(5)-(6), 122 Stat. at 1565. It

deemed these lawsuits to be a significant burden on 

businesses, without any corresponding consumer benefit. Id. 

at § 2(a)(7), 122 Stat. at 1565-66. Therefore, Congress 

amended FACTA to state that any merchant who printed an 

expiration date, but otherwise complied with FACTA, 

between the dates of December 4, 2004 and June 3, 2008, 

shall not be deemed in willful noncompliance with § 

1681c(g). Id. at § 3(a) (codified at 15 U.S.C. § 1681n(d)), 

122 Stat. at 1566.

B.

This appeal raises two related questions. The first is 

whether Long’s allegation that Hilfiger printed his credit 

card’s expiration month, but not the year, states a claim under 

FACTA. If so, the second question is whether such a 

violation of the statute meets the standard for “willfulness.” 

These are issues of first impression among the federal courts 

of appeals. We will address each in turn. 

1.

Determining whether Long has stated a claim under 
6

FACTA requires us to interpret the statute. The principles 

governing statutory interpretation are well-known. Our role is 

to give effect to Congress’s intent, which we assume is 

expressed in the ordinary meaning of the statutory language. 

Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 

199, 210 (3d Cir. 2008). In analyzing whether the statutory 

language is unambiguous, “we take account of ‘the specific 

context in which that language is used, and the broader 

context of the statute as a whole.’” Id. (quoting In re Price, 

370 F.3d 362, 369 (3d Cir. 2004). We also consider the 

“overall object and policy of the statute, and avoid 

constructions that produce odd or absurd results or that are 

inconsistent with common sense.” Id. (citation and internal 

quotation marks omitted). In addition to following these 

general rules of statutory interpretation, we are mindful that 

remedial legislation should be construed broadly to effectuate 

its purpose. Idahoan Fresh v. Advantage Produce, Inc., 157 

F.3d 197, 202 (3d Cir. 1998).

The critical inquiry before us is the meaning of 

FACTA’s requirement that no person shall print “the 

expiration date.” The phrase “expiration date” is not defined 

in the statute. Hilfiger argues, however, that the phrase refers

to an ascertainable date on which the credit or debit card 

ceases to be valid, and requires the simultaneous coexistence 

of both the month and the year. Hilfiger concludes, therefore, 

that merely printing “April” or “04” does not constitute 

printing an “expiration date” within the meaning of § 

1681c(g)(1). 

We disagree. Taking Hilfiger’s argument to its logical 

conclusion, a merchant would not violate FACTA so long as 

it redacted even a single number from either the month or year 

of the card’s expiration date. Furthermore, different 

merchants could each choose to redact different portions of 

the expiration date, making it possible to ascertain the entire 

expiration date from multiple receipts. This, of course, would 

be inconsistent with the statute’s objective of preventing 

identity theft and a result certainly not intended by Congress.

We conclude that the most natural reading of the 
7

phrase “expiration date” is that it refers to the information or 

data (usually a string of numbers) contained in the expiration 

date “field” on the face of the credit or debit card. In other 

words, FACTA is best read as prohibiting merchants from 

printing the numbers in that field, which Long alleges Hilfiger 

did in this case by printing “EXPIRY: 04/##.” The fact that 

Hilfiger printed only a part or portion of the expiration date 

numbers from Long’s credit card does not change the result. 

To be sure, FACTA is silent as to the effect of a partial 

printing of the expiration date. Nevertheless, if Congress had 

intended to allow a partial printing, it would have used 

language similar to what it used for credit or debit card 

numbers. With respect to card numbers, Congress clearly 

indicated the scope of disclosure allowed by specifically 

stating that no merchant shall print “more than the last 5 

digits of the card number.” 15 U.S.C. § 1681c(g)(1)

(emphasis supplied). Congress demonstrated that it knew 

how to use language allowing for the partial disclosure of 

information, but elected not to include any such language in 

the context of expiration dates. Therefore, we cannot 

conclude that FACTA provides an exception for merchants 

who redact part of the expiration date information on the 

receipt. 

Hilfiger’s reliance on the Clarification Act is 

unpersuasive. Despite having the occasion to specifically 

consider the issue of expiration dates, Congress did not 

change the actual language of § 1681c(g)(1) or otherwise alter 

the liability standard of the statute. Just as before, the 

statutory language stated that “no person . . . shall print . . . 

the expiration date” on a receipt. What Congress did do was 

to provide a safe harbor for merchants who had been sued for 

printing such dates. We will not assume that Congress 

intended a greater limitation of liability than what is explicitly 

stated in the statutory text. 

For these reasons, and consistent with our duty to 

interpret remedial statutes broadly, Idahoan, 157 F.3d at 202, 

we hold that § 1681c(g)(1) prohibits a merchant from printing 

expiration date information on a receipt provided to the 

consumer, even if the year is redacted. Therefore, Long 
8

properly alleged that Hilfiger violated FACTA. 

2.

Having determined that Long properly alleged a 

violation of FACTA, we next ask whether FACTA authorizes 

him to recover for the violation. Long concedes that he did 

not suffer any actual damages, and instead requests statutory 

damages together with punitive damages and attorneys’ fees 

under 15 U.S.C. § 1681n(a). As noted above, however, Long 

is not eligible for such relief unless he can allege, and 

ultimately prove, that the violation of the statute was 

“willful.” Id. 

The Supreme Court addressed the willfulness 

requirement of § 1681n(a) in Safeco Ins. Co. of Am. v. Burr, 

551 U.S. 47 (2007). In Safeco, the Court considered a 

provision of the Fair Credit Reporting Act which requires 

notice to a consumer subjected to “adverse action . . . that is 

based in whole or in part on any information contained in a 

consumer [credit] report.” 15 U.S.C. § 1681m(a). With 

respect to an insurance company, an “adverse action” is 

defined in part as “an increase in any charge for, or a 

reduction or other adverse or unfavorable change in the terms 

of coverage or amount of, any insurance, existing or applied 

for.” Id. at § 1681a(k)(1)(B)(i). The defendant insurance 

companies in Safeco argued that they did not violate the 

statute by failing to give notice, because the plaintiffs’ claims 

were based on “initial rates charged for new insurance 

policies.” Safeco, 551 U.S. at 60-61. The defendants argued 

that the initial rate for a new policy “cannot be an ‘increase’ 

because there is no prior dealing” between the parties. Id. at 

61. In other words, the defendants argued that the statutory 

reference to “increase in any charge” was meant to cover 

“change[s] in treatment for an insured, which assumes a 

previous charge for comparison.” Id. 

The Supreme Court rejected the defendants’ 

interpretation, concluding that applying the statute to initial 

rates for new policies is a “better fit with the ambitious 

objective set out in the Act’s statement of purpose.” Id. at 62. 

Although finding a violation of the statute, however, the 
9

Court concluded that the violation was not willful because the 

willfulness component is not met “unless the action is not 

only a violation under a reasonable reading of the statute’s 

terms, but shows that the company ran a risk of violating the 

law substantially greater than the risk associated with a 

reading that was merely careless.” Id. at 69 (emphasis 

supplied). Accordingly, the Court held that a violation does 

not cross the willfulness threshold just because a defendant’s 

interpretation is erroneous; it must instead be “objectively 

unreasonable.” Id. 

The “objectively unreasonable” standard was not met 

in Safeco for several reasons. First, the statute itself was 

“silent on the point from which to measure ‘increase’” and the 

Supreme Court considered the statutory text “less-thanpellucid.” Id. at 69-70. Second, the defendant’s proposed 

interpretation had a “foundation in the statutory text . . . and a 

sufficiently convincing justification to have persuaded the 

District Court to adopt it.” Id. Finally, the Court noted that 

“[b]efore these cases, no court of appeals had spoken on the 

issue, and no authoritative guidance has yet come from the 

FTC.” Id. at 70. Accordingly, the Court concluded that the

defendant’s reading was not objectively unreasonable, and fell 

“well short” of meeting the willfulness standard. Id.; see also 

Shlahtichman v. 1-800 Contacts, Inc., 615 F.3d 794, 803-04 

(7th Cir. 2010) (applying Safeco to conclude it was 

objectively reasonable for merchant to believe § 1681c(g) did 

not apply to e-mailed receipts). 

In light of Safeco, we conclude that Hilfiger’s 

interpretation of the statute is not “objectively unreasonable” 

and, thus, that Long has not stated a claim for a willful 

violation of FACTA. Just as in Safeco, Hilfiger’s 

interpretation of § 1681c(g)(1) has some foundation in the 

text, as Hilfiger could believe that the statute did not apply 

based on what it considered to be the plain meaning of the 

phrase “expiration date.” That phrase is not defined in the 

statute itself, just as the statute in Safeco was silent as to the 

point from which to measure an increase in a charge for 

insurance. Furthermore, despite the fact that we reject 

Hilfiger’s interpretation of the § 1681c(g)(1) language, it was 
10

at least sufficiently persuasive to convince the District Court 

to adopt it. Although Long argues that there was district court 

authority putting Hilfiger on notice that its interpretation was 

incorrect,2 there was no guidance from the federal courts of 

appeal on this issue.3

 

Long’s additional arguments on this point are 

unpersuasive. He contends that it is possible that Hilfiger 

“did not actually rely on any interpretation” of § 1681c(g)(1),

and instead “disregarded the statute altogether and is only 

now seizing upon a post hoc ‘objectively reasonable’ 

interpretation in order to shield itself from liability.” 

Appellant’s Br. at 25. This argument, however, is expressly 

foreclosed by Safeco, which held that evidence of subjective

bad faith or intent of the defendant is irrelevant when there is 

 2 Long cites, for example, Follman v. Hospitality Plus of 

Carpentersville, Inc., 532 F. Supp. 2d 960, 964 (N.D. Ill. 

2007); Iosello v. Leiblys, Inc., 502 F. Supp. 2d 782, 786 (N.D. 

Ill. 2007); Arcilla v. Adidas Promotional Retail Operations, 

Inc., 488 F. Supp. 2d 965, 970 (C.D. Cal. 2007); and Ramirez 

v. Midwest Airlines, Inc., 537 F. Supp. 2d 1161, 1171 (D. 

Kan. 2008). These decisions are not directly on-point because 

they involve merchants who, unlike here, printed the entire

expiration date. 

3 Long argues there was agency guidance on this issue, citing 

to a brief FTC “Business Alert” indicating that merchants 

“must delete the card’s expiration date[, f]or example . . . 

EXP: ****.” Slip Showing? Federal Law Requires All 

Businesses to Truncate Credit Card Information on Receipts 

(May 2007). We are doubtful that this Business Alert 

constitutes the kind of “authoritative guidance” from the 

agency envisioned by the Supreme Court. See Safeco, 551 

U.S. at 70 n.19 (rejecting the FTC document relied upon by 

plaintiffs because it was a letter written by an FTC staff 

member that “did not canvas the issue” in question and was 

merely an informal opinion not binding on the Commission). 

In any case, we cannot conclude from this Business Alert 

standing alone that Hilfiger ran a risk of violating FACTA

substantially greater than the risk associated with a reading 

that was merely careless. 
11

an objectively reasonable interpretation of the statute that 

would allow the conduct in question. See Safeco, 551 U.S. at 

70 n.20. Thus, Long’s allegation about Hilfiger’s actual 

knowledge or intent as to FACTA’s requirements is 

immaterial to the objective reasonableness analysis. For these 

same reasons, we are also unpersuaded by Long’s argument 

that he requires discovery to establish Hilfiger’s subjective 

knowledge. See Shlahtichman, 615 F.3d at 803-04 (affirming 

a 12(b)(6) dismissal of a FACTA complaint in part on the 

ground that the defendant’s proffered interpretation was 

objectively reasonable); Safeco, 551 U.S. at 71 (concluding 

defendant’s interpretation was objectively reasonable and 

finding “no need . . . to remand the cases for factual 

development”).

In sum, we conclude that Hilfiger’s interpretation of § 

1681c(g)(1), although erroneous, was at least objectively 

reasonable. Hilfiger did not run “a risk of violating the law 

substantially greater than the risk associated with a reading 

that was merely careless.” Safeco, 551 U.S. at 69. 

Accordingly, Long has not stated a claim for a willful 

violation of FACTA, and the District Court did not err in 

dismissing his complaint.

III.

For the foregoing reasons, we will affirm the order of 

the District Court.