• Claim for Merchant's Willful FCRA Violation Dismissed as Plaintiff's Inference of Willfulness was Facially Implausible
  • April 27, 2010 | Author: Marc Kirkland
  • Law Firm: Strasburger & Price, LLP - Frisco Office
  • Gardner v. Appleton Baseball Club, Inc., 2010 U.S. Dist. LEXIS 31653  (E.D. Wis. Mar. 31, 2010) 

    Facts: Plaintiff filed a class action suit against Defendant, operator of the Wisconsin Timber Rattlers, a minor league baseball team, for issuing electronically generated, point-of-sale receipts that contained consumers’ credit/debit card expiration dates, in violation of FACTA, § 1681c(g) of the FCRA. Defendant filed a motion to dismiss on grounds that the Complaint failed to allege a willful violation of the FCRA. The Court agreed and dismissed Plaintiff’s claim pursuant to Fed. R. Civ. P. 8(a)(2).
     

    • Insufficient Pleadings. Two recent Supreme Court cases, Iqbal and Twombly, have emphasized that it is no longer enough to make bald allegations in a complaint because Rule 8(a)(2) requires a statement of the claim “showing” that the plaintiff is entitled to relief.   Ashcroft v. Iqbal, 129 S. Ct. 1937 173 L. Ed. 2d 868 (2009); Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. 
    • Willfulness. “Willful,” as used in § 1681n, imposes civil liability upon any person who willfully fails to comply with any requirement of the FCRA. Willfulness under FACTA includes both knowing and reckless conduct.
    • Willfulness. A company subject to FACTA does not act in reckless disregard of the statute 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.
    • Willfulness. The existence of the law and/or guidance on the law is not enough to create an inference that the law was knowingly disregarded, absent some allegation that the guidance was actually sent to the Defendant or so well-publicized that every one knew about it.   The Court also noted that the there was no reason to infer willfulness merely because a  violation occurred.
    • Willfulness. Here, Plaintiff’s Complaint did not meet the requirement of Twombly and Iqbal. First, Plaintiff’s bare-boned complaint offered no allegations that a minor league baseball team, such as Defendant, would have been apprised of FACTA’s requirements or would otherwise have reason to know about them. Second, Plaintiff’s complaint merely parrots the statutory language without providing specific facts. Such cut-and-paste jobs are not a substitute for real facts that plausibly “show,” under Rule 8 that the Plaintiff is entitled to relief. Because there was nothing in the complaint to distinguish the willfulness of this Defendant from any other imaginable defendant, the complaint failed to satisfy Rule 8.