Judge Arthur Spatt
Kivo made an online, credit card purchase from Blumberg Excelsior Inc. (BEI). She asserted entitlement to statutory damages under §1681n of the Fair and Accurate Credit Transaction Act (FACTA) on the ground that BEI violated FACTA §1681c(g) by including her credit card’s expiration date in the computer-generated receipt mailed to her. The court dismissed Kivo’s complaint after concluding that BEI was not willfully noncompliant with FACTA because, absent clear guidance from the Supreme Court or Second Circuit, its interpretation that §1681c(g) applied only to receipts stemming from in-person transactions was reasonable. The fact that Congress has, at times—as in the Food Stamp Act, the Petroleum Marketing Act—limited the meaning of the term “point of sale” to a physical location suggested that BEI’s interpretation was objectively reasonable. Also, §1681c(g)’s legislative history reinforced the argument that BEI’s interpretation of §1681c(g) was objectively reasonable. Further, although the Second Circuit has not addressed the issue, a number of federal circuit and district court rulings support the idea that §1681c(g)(1) presumes an in-person transaction after which a physical receipt is provided from a merchant to a customer.
