Shlahtichman v. 1-800 Contacts Inc., 09-4073.

• Decision Date: 10 August 2010
• Docket Number: No. 09-4073.,09-4073.
• Citation: 615 F.3d 794
• Parties: Eduard SHLAHTICHMAN, Plaintiff-Appellant, v. 1-800 CONTACTS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

615 F.3d 794

Eduard SHLAHTICHMAN, Plaintiff-Appellant,
v.
1-800 CONTACTS, INC., Defendant-Appellee.

No. 09-4073.

United States Court of Appeals,Seventh Circuit.

Argued April 15, 2010.
Decided Aug. 10, 2010.

615 F.3d 795

Phillip A. Bock, Bock & Hatch, Chicago, IL, for Plaintiff-Appellant.

James L. Thompson, Jenner & Block LLP, Chicago, IL, for Defendant-Appellee.

Before BAUER, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge.

After Eduard Shlahtichman purchased contact lenses over the Internet, 1-800 Contacts, Inc. emailed him a confirmation of his order which reflected the expiration date of his credit card. The Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) prohibits a vendor who accepts a credit or debit card as a means of payment

615 F.3d 796

from “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,” 15 U.S.C. § 1681c(g)(1); the prohibition “appl[ies] only to receipts that are electronically printed,” as opposed to those on which the credit or debit card information is written by hand or taken by imprint or photocopy, § 1681(c)(g)(2). Did 1-800 Contacts “electronically print” the expiration date of Shlahtichman's credit card, and thereby violate FACTA, by including it in the email? This is a question of first impression at the appellate level. We answer that question in the negative and affirm the dismissal of Shlahtichman's complaint.

1-800 Contacts sells contact lenses over the Internet and accepts payment by credit card. On or before June 2, 2009, Shlahtichman made an Internet purchase from 1-800 Contacts using his credit card. 1-800 Contacts then sent Shlahtichman a computer-generated email confirming his order. Among the information included in the confirmation was the expiration date of Shlahtichman's credit card. Shlahtichman received the email at his home in Illinois on June 2, 2009. These are the essential factual allegations of Shlahtichman's complaint, and we assume their truth for purposes of reviewing the dismissal of his suit. E.g., Addis v. Whitburn, 153 F.3d 836, 837 (7th Cir.1998).

FACTA amended the Fair Credit Reporting Act of 1970, 15 U.S.C. §§ 1681 et seq. (“FCRA”), to add, among other provisions, a “receipt truncation” requirement aimed at combating identity theft. See § 1681c(g). As amended, the statute provides:

Truncation of credit card and debit card numbers

(1) In general

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.

(2) Limitation

This subsection shall apply only to receipts that are electronically printed, and shall 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.

(3) Effective date

This subsection shall become effective-

(A) 3 years after December 4, 2003, with respect to any cash register or other machine or device that electronically prints receipts for credit card or debit card transactions that is in use before January 1, 2005; and

(B) 1 year after December 4, 2003, with respect to any cash register or other machine or device that electronically prints receipts for credit card or debit card transactions that is first put into use on or after January 1, 2005.

§ 1681c(g). The statute permits a consumer to recover any actual damages he sustains as a result of a negligent violation, together with the costs of suit, see 15 U.S.C. § 1681 o, or statutory damages (without any proof of injury) of $100 to $1000 per violation, along with the costs of suit, if the violation of the statute was willful, see 15 U.S.C. § 1681n(1)(A), (3). ¹

615 F.3d 797

Shlahtichman filed a class action suit in Illinois state court on behalf of himself and others similarly situated, contending that 1-800 Contacts had violated the FCRA as amended by FACTA by including the expiration date of a purchaser's credit card in the order confirmations it sent by email. Because the suit arises under a federal statute, 1-800 Contacts removed the action to the district court. See 28 U.S.C. §§ 1331, 1441, 1446. It then moved to dismiss Shlahtichman's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief could be granted.

The district court granted the motion and dismissed the suit. Shlahtichman v. 1-800 Contacts, Inc., No. 09 C 4032, 2009 WL 4506535 (N.D.Ill.Dec.2, 2009); R.26, 28. The court cited two principal reasons for concluding that an emailed order confirmation falls outside the scope of the statute. “ First, e-mail order confirmations are not ‘electronically printed’ receipts under FACTA.” Id. at *2 (emphasis ours). Noting that the statute leaves the term “printed” undefined, the court adopted the plain and ordinary meaning of the term, which signifies the transfer of text, images, designs, and other information to paper. Id. at *3. It rejected Shlahtichman's contention that the term should also be taken to include the display of information on a computer screen, reasoning that even if the word “print” can be understood in this way, this is not its ordinary import. Id. The fact that the effective date of the truncating provision turned on the date on which the vendor's “cash register or other machine or device that electronically prints receipts” came into use confirmed that the provision should be understood to reach receipts that are printed on paper by cash registers and similar devices. Id. at *4. And the legislative history revealed that it was the misappropriation of those kinds of receipts that Congress was concerned about when it passed FACTA. Id. “ Second, an e-mail order confirmation is not provided ‘at the point of the sale or transaction’ under FACTA.” Id. at *2 (emphasis ours). As other courts had observed, the statutory reference to receipts provided at “the point of the sale or transaction” contemplates in-store transactions rather than electronic commerce. Id. at *5. Even if a point of sale can be ascribed to an Internet purchase-Shlahtichman argued that the computer used by the consumer to make the purchase represents the point of sale-an email sent to the purchaser to confirm that purchase is not provided at that point but rather is directed to an email account that can be accessed anywhere. Id.

Although Shlahtichman brought this case as a class action, no class was ever certified (no motion asking the district court to do so was filed), so the dismissal of the complaint only disposes of Shlahtichman's individual claim for relief. See, e.g., Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir.2006). Nonetheless, the district court made clear that it contemplated no further proceedings in this case, see R. 26 (deeming the case closed), so its judgment is final and our own appellate jurisdiction is secure. See, e.g., McClain v. Retail Food Employers Joint Pension Plan, 413 F.3d 582, 585 n. 2 (7th Cir.2005). Consistent with the fact that no class was certified, we shall treat Shlahtichman's complaint as if it were filed solely on his own behalf.

615 F.3d 798

Rutan v. Republican Party of Ill., 868 F.2d 943, 947 (7th Cir.1989) (en banc), aff'd in part & rev'd in part on other grounds, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990).

Our review of the district court's decision is de novo. E.g., Hukic v. Aurora Loan Servs., 588 F.3d 420, 434 (7th Cir.2009). The viability of Shlahtichman's complaint turns on the meaning of FACTA's terms-in particular, the term “print.” Absent a definition supplied by the statute itself, we look to the ordinary or natural meaning of the term. FDIC v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 1001, 127 L.Ed.2d 308 (1994) (citing Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993)); see also Hardt v. Reliance Std. Life Ins. Co., --- U.S. ----, 130 S.Ct. 2149, 2156, 176 L.Ed.2d 998 (2010). But we must also look to the statute as a whole in discerning a term's meaning rather than examining it in isolation. Samantar v. Yousuf, --- U.S. ----, 130 S.Ct. 2278, 2289, 176 L.Ed.2d 1047 (2010) (quoting United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 2773, 81 L.Ed.2d 680 (1984)); Nken v. Holder, --- U.S. ----, 129 S.Ct. 1749, 1756, 173 L.Ed.2d 550 (2009) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997)). “[W]hen the statute's language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms.” Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 1030, 157 L.Ed.2d 1024 (2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 1947, 147 L.Ed.2d 1 (2000)).

As the district court noted, most courts have concluded that the term “electronically printed” reaches only those receipts that are printed on paper, as that understanding of the statute conforms to the ordinary meaning of the term “print.” See Turner v. Ticket Animal, LLC, No. 08-61038-CIV, 2009 WL 1035241 (S.D.Fla. Apr.16, 2009); Smith v. Under Armour, Inc., 593 F.Supp.2d 1281 (S.D.Fla.2008); Smith v. Zazzle.com, Inc., 589 F.Supp.2d 1345, 1348 (S.D.Fla.2008); Grabein v. Jupiterimages Corp., No. 07-22288-CIV, 2008 WL 2704451 (S.D.Fla. Jul. 7, 2008) (report and recommendation of magistrate judge), adopted, 2008 WL 2906866 (S.D.Fla. Jul.28, 2008); King v. MovieTickets.com, Inc., 555 F.Supp.2d 1339, 1340 (S.D.Fla.2008); Haslam v. Federated Dep't Stores, Inc., No. 07-61871 CIV, 2008 WL 5574762 (S.D.Fla. May 16, 2008); Narson v. Godaddy.com, Inc., No. CV-08-0177, 2008 WL 2790211 (D.Ariz. May 5, 2008). A minority have concluded that...