A New York federal judge last week affirmed his earlier dismissal of a civil action alleging that a restaurant chain willfully violated the Fair and Accurate Credit Transactions Act (“FACTA”).

FACTA requires businesses that accept credit cards to redact from customers’ receipts the card’s expiration date and all but the last five digits of the credit card number.  Damages for “negligent” noncompliance with FACTA are limited to actual injuries, such as identity theft.  “Willful” noncompliance, in contrast, carries damages of $100 to $1,000 per customer and punitive damages. 

The Supreme Court has held that a willful violation of FACTA requires either a knowing or reckless violation, and that a company does not act in reckless disregard of FACTA “unless the action is not only a violation under a reasonable reading of the statute’s terms, but [also] shows that the company ran a risk of violating the law substantially greater than the risk  associated with a reading that was merely careless.”

Devorah Crupar-Weinmann alleges that Paris Baguette America, Inc., willfully violated FACTA by including the full expiration date of her credit card on her receipt.  In January, Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York granted Paris Baguette’s motion to dismiss, ruling that Crupar-Weinmann’s complaint did not contain sufficient facts to plausibly show that the restaurant chain willfully violated FACTA. 

Crupar-Weinmann filed a motion for reconsideration, and last Wednesday, Judge Rakoff denied that motion.  Rakoff reasoned that “the plaintiff has pleaded no facts that make it plausible that defendant was anything other than ‘merely careless’ in not complying with the statute.”  Rakoff wrote that the complaint shows “at best, that defendant knew of the statute and acted carelessly in not complying with it.”