Free Complaint - District Court of California - California

Case 3:07-cv-04780-SI

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1 Pierce Gore (State Bar No. 128515) GORE LAW FIRM 2 900 East Hamilton Avenue Suite 100 3 Campbell, CA 95008 Telephone: (408) 879-7444 4 Facsimile: (408) 376-0757 Email: [email protected] 5 (Additional counsel listed on signature page) 6 Attorneys for Plaintiff 7 8 9 10 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Case No. CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

11 ELIZABETH McCOY, individually and on behalf of herself and all others similarly situated, 12 Plaintiff, 13 v. 14 OILILY B.V.; Does 1 through 10, 15 Defendants. 16 17

Plaintiff, by and through her attorneys, brings this civil action for statutory damages and

18 costs of suit, on behalf of herself and all others similarly situated. Upon personal knowledge as to 19 her own acts and status, and upon information and belief as to all other matters, Plaintiff alleges 20 the following: 21 22 1. NATURE OF THE ACTION This is a class action against Oilily B.V. pursuant to the Fair and Accurate

23 Credit Transactions Act, 15 U.S.C. §1681 et seq. ("FACTA"), which was enacted by Congress in 24 2003 to aid in the prevention of identity theft and credit/debit card fraud. Plaintiff, Elizabeth 25 McCoy, individually and on behalf of all others similarly situated, brings this action against Oilily 26 B.V. and Does 1-10 (collectively "Defendants") based on Defendants' practice of violating 15 27 U.S.C. §1681c(g), a provision of FACTA, which provides that "no person that accepts credit cards 28 or debit cards for the transaction of business shall print more than the last five digits of the card
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1 number or the expiration date upon any receipt provided to the cardholder at the point of the sale 2 or transaction." (Emphasis added.) As used herein, the phrase "Prohibited Information" refers to 3 the information that 15 U.S.C. §1681c(g) prohibits from being printed on receipts - i.e., more than 4 the last five digits of the credit card or debit card number or the expiration date of the card. 5 Despite having had several years to bring themselves into compliance with the law, Defendants 6 have willfully and repeatedly violated §1681c(g) by printing Prohibited Information on credit card 7 and debit card receipts provided to thousands of consumers. Based on these violations,

8 Defendants are liable to Plaintiff and the proposed class of other similarly situated consumers, 9 pursuant to 15 U.S.C. §1681n. 10 11 2. THE PARTIES Plaintiff is a resident of the State of California and the County of Santa

12 Clara, and is a "consumer" as defined by §1681a(c) of the Fair Credit Reporting Act (the 13 "FRCA"), as amended by FACTA. Pursuant to the Federal Rules of Civil Procedure, Plaintiff 14 seeks to represent a nationwide class of consumers, likewise defined by §1681a(c). 15 3. Defendant Oilily B.V. is a corporation organized under the laws of the

16 Netherlands, whose principal place of business is listed as P.O. Box 8077, NL-1802 KB Alkmaar, 17 Netherlands. Oilily B.V. manufactures and distributes apparel, accessories and personal care 18 products in more than 2000 retail stores in more than 40 countries. Oilily B.V. conducts business 19 in the State of California, in this district, and throughout the United States, and is a person that 20 accepts credit cards or debit cards for the transaction of business under the FCRA, pursuant to the 21 definition of a "person" set forth therein. 22 4. Plaintiff does not know the true names and capacities of Does 1-10,

23 inclusive, whether individual, corporate, association, or otherwise, and therefore, sues these 24 defendants, and each of them, by such fictitious names. Plaintiff will amend this Complaint to 25 show their true names and capacities when they have been ascertained. Plaintiff is informed and 26 believes, and on the basis of that belief alleges, that each of these Doe defendants was in some 27 manner legally responsible for the events, happenings, injuries, and damages alleged in this 28
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1 Complaint. As used herein, the term Defendants or "Oilily" refers to Oilily B.V. and the Doe 2 defendants. 3 4 5. JURISDICTION AND VENUE This Court has subject matter jurisdiction pursuant to 15 U.S.C. §1681p and

5 28 U.S.C. §1331. 6 6. This Court has personal jurisdiction over Oilily B.V. because a substantial

7 portion of the wrongdoing alleged in this Complaint took place in this state, Oilily B.V. is 8 authorized to do business here, Oilily B.V. has sufficient minimum contacts with this state, and/or 9 Oilily B.V. otherwise intentionally avails itself of the markets in this state through the promotion, 10 marketing and sale of its products in this state, to render the exercise of jurisdiction by this Court 11 permissible under traditional notions of fair play and substantial justice. 12 7. Venue is proper pursuant to 28 U.S.C. §1391(b) because the sole named

13 defendant conducts business throughout this district and because a substantial part of the events 14 and omissions giving rise to the claims occurred in this district, and because there is personal 15 jurisdiction in this district over the sole named defendant. 16 17 8. INTRADISTRICT ASSIGNMENT Pursuant to the Northern District of California's Local Rules Nos. 3-2 and

18 3-5, Plaintiff requests assignment to the San Francisco Division of the Northern District of 19 California. A substantial part of the events or omissions that give rise to Plaintiff's claims 20 occurred in San Francisco County. 21 22 9. FACTUAL BACKGROUND Section 1681c(g), by its express terms, became effective on December 4,

23 2004 with respect to "any cash register or other machine or device that electronically prints 24 receipts for credit card or debit card transactions" (collectively referred to herein as "Cash 25 Register" or "Cash Registers") that was "first put into use on or after January 1, 2005." (For 26 practical purposes, the statute became effective January 1, 2005 with respect to such Cash 27 Registers.) With respect to Cash Registers that were in use before January 1, 2005, the statute did 28 not become effective until December 4, 2006. Thus, Congress gave companies that were using
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1 Cash Registers put into use before January 1, 2005 significant additional time to comply with 2 FACTA with respect to those Cash Registers. By contrast, with respect to Cash Registers first put 3 into use on or after January 1, 2005, Congress imposed liability immediately. 4 10. In addition, years ago, VISA, MasterCard, and other entities, including

5 Cash Register sellers, began informing retailers of the need to truncate credit and debit card 6 information to comply with various state laws, with VISA or MasterCard policies and/or 7 regulations, and/or with FACTA. Indeed, VISA implemented new operations regulations,

8 applicable to new Cash Registers, as early as July 2003, in response to legislation requiring 9 suppression of the expiration date and some digits on cardholder receipts, requiring similar 10 suppression of such information for VISA transactions. Defendants ignored all of these warnings, 11 as well as the requirements of FACTA itself, and continued to print Prohibited Information on 12 customer receipts. In contrast, most business and retail companies in the United States -

13 particularly large, sophisticated entities like Defendants - elected to take the steps needed to 14 replace, modify or re-program their Cash Registers in order to comply with the law. 15 16 11. PLAINTIFF ELIZABETH MCCOY On or about August 1, 2007, Oilily printed the expiration date of Plaintiff's

17 credit card on a receipt provided to Plaintiff at the point of sale or transaction between Plaintiff 18 and Oilily, at Oilily's store in San Francisco. By doing so, Oilily violated 15 U.S.C. §1681c(g). 19 20 12. CLASS ACTION ALLEGATIONS Plaintiff brings this action on behalf of herself and a class of persons

21 similarly situated (referred to herein as "Class Members"). This action is properly maintainable as 22 a class action pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(1) and 23(b)(3). 23 13. Since January 1, 2005, and within the applicable statute of limitations

24 period, Oilily printed the expiration date and/or printed more than the last five digits of Class 25 Members' credit card or debit card numbers on the receipts provided to the Class Members at the 26 point of a sale or transaction between Oilily and Class Members. To the extent Oilily did so using 27 Cash Registers that were first put in use on or after January 1, 2005, it violated 15 U.S.C. 28 §1681c(g).
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14.

On or after December 4, 2006, Oilily printed the expiration date and/or

2 printed more than the last five digits of Class Members' credit card or debit card numbers on the 3 receipts provided to the Class Members at the point of a sale or transaction between Oilily and the 4 Class Members. Each and every such receipt violated 15 U.S.C. §1681c(g), irrespective of when 5 the Cash Register was put into use. 6 15. Oilily's violations, as alleged herein, were not an accident or an isolated

7 oversight. Rather, Oilily knowingly and intentionally continued to use Cash Registers that were 8 not programmed to, or otherwise did not, comply with §1681c(g). Oilily knew that its receipt9 printing practice violated the rights of consumers under FACTA, or at a minimum, recklessly 10 disregarded whether its practice contravened consumers' rights and the law. Oilily ignored the 11 law, thereby placing Plaintiff and similarly situated customers at greater risk of identity theft. 12 16. Class Definition. Plaintiff seeks to represent a class of Oilily customers (the

13 "Class"), defined as follows: 14 15 16 17 18 All persons in the United States of America to whom Oilily provided at the point of sale or transaction an electronically-printed receipt on which Oilily printed more than the last five digits of the number of the credit card or debit card used in the transaction, or on which Oilily printed the expiration date of the credit or debit card used in the transaction, during the time periods provided by 15 U.S.C. §1681c(g). 17. Excluded from the Class are: (1) Oilily and its subsidiaries, affiliates,

19 officers and directors; (2) any entity in which Oilily or any other excluded entity has a controlling 20 interest; (3) Oilily's legal representatives, predecessors, successors, assigns and employees; and 21 (4) the judge and staff to whom this case is assigned, and any member of the judge's immediate 22 family. 23 18. The members of the proposed Class (the "Class Members") can be

24 ascertained from Oilily's records or from information readily accessible to Oilily. Notice can be 25 sent to the Class Members by mail, email, the Internet, through publication in newspapers and 26 periodicals, or by other means authorized by the Court. 27 19. This action is brought and may be maintained as a class action under Rule

28 23 of the Federal Rules of Civil Procedure.
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20.

Numerosity Under Rule 23(a)(1). The Class Members are so numerous that

2 joinder of all of them is impracticable. Plaintiff believes and thereon alleges that the size of the 3 Class exceeds 1,000 persons. 4 21. Commonality Under Rule 23(a)(2). This action involves common questions

5 of law and fact, including, but not limited to, the following: 6 a. Whether Defendants printed Prohibited Information on credit card

7 or debit card receipts in violation of FACTA; 8 9 with FACTA; 10 c. Whether Class Members are entitled to recover statutory damages, b. Whether Defendants' conduct constituted willful noncompliance

11 punitive damages or attorney's fees. 12 22. Typicality Under Rule 23(a)(3). Plaintiff's claims are typical of (and not

13 antagonistic to) the claims of the Class Members. Plaintiff and the other Class Members were 14 subjected to the same kind of unlawful conduct and the claims of Plaintiff and the other Class 15 Members are based on the same legal theories. 16 23. Adequacy of Representation Under Rule 23(a)(4). Plaintiff, individually

17 and through counsel, will fairly and adequately protect the interests of the Class, and Plaintiff has 18 no interest adverse to the interests of the Class. Plaintiff's attorneys are experienced class action 19 attorneys, will fully and adequately represent and protect the Class, and are ready, willing and able 20 to do so. 21 24. The Class Can Be Properly Maintained Under Rules 23(b)(1) and (c). The

22 unlawful practices of Defendants alleged herein constitute a course of conduct common to Class 23 Members. Prosecution of separate actions by individual Class Members would create a risk of 24 inconsistent or varying adjudications, which would establish incompatible standards of conduct 25 for Defendants and/or substantially impair or impede the ability of individual Class Members to 26 protect their interests. 27 25. The Class Can Be Properly Maintained Under Rules 23(b)(3) and (c).

28 Questions of law common to the members of the Class predominate over any questions affecting
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1 only individual members with respect to some or all issues presented in this Complaint. A class 2 action is superior to other available methods for the fair and efficient adjudication of this 3 controversy. Individual litigation of the claims of all Class Members is impracticable because the 4 cost of litigation would be prohibitively expensive for each Class Member, and would impose an 5 immense burden upon the courts. Individualized litigation would also present the potential for 6 varying, inconsistent or contradictory judgments and would increase the delay and expense to all 7 parties and to the court sys tem resulting from multiple trials of the same complex factual issues. 8 By contrast, the conduct of this action as a class action, with respect to some or all of the issues 9 presented in this Complaint, presents fewer management difficulties, conserves the resources of 10 the parties and of the court system, and is the only means to protect the rights of all Class 11 Members. 12 13 14 CLAIM FOR RELIEF (Against All Defendants For Willful Noncompliance with 15 U.S.C. §1681 et seq.) 26. Plaintiff, on behalf of herself and the Class, realleges and incorporates, as if

15 fully alleged herein, each of the allegations contained in the preceding paragraphs of this 16 Complaint, and further alleges as follows: 17 27. During the relevant time period, as alleged above, Oilily intentionally,

18 repeatedly and systematically printed statutorily Prohibited Information (i.e., the expiration date of 19 a consumer's credit card or debit card and/or more than the last five digits of a consumer's credit 20 card or debit card number) on receipts it provided at the point of a sale or transaction to 21 consumers, including Plaintiff and Class Members, in violation of 15 U.S.C. §1681c(g). 22 28. Plaintiff believes and thereon alleges that Oilily's conduct was pursuant to

23 Oilily's policies, routine practices, procedures and customs for electronically printing receipts, at 24 least with respect to certain stores and/or Cash Registers which inexcusably failed to comply with 25 the law. Defendant knew or recklessly disregarded that its use of Cash Registers that did not 26 comply with the law, and that its printing of Prohibited Information on customers' receipts, was in 27 contravention of Plaintiff's and Class Members' rights. As such, Defendant's violations of the 28
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1 FCRA and FACTA, as alleged by Plaintiff on behalf of herself and Class Members, were "willful" 2 for purposes of the FCRA and FACTA. 3 29. As a result of Defendant's willful violation of §1681c(g), Plaintiff and each

4 of the Class Members are entitled to monetary relief under 15 U.S.C. §1681n of not less than $100 5 and not more than $1,000 for each violation by Defendant. 6 30. Plaintiff and Class Members also were exposed to at least an increased risk

7 of identity theft by reason of Defendant's conduct. However, Plaintiff does not seek to quantify or 8 recover actual damages in this case, either for herself of the Class Members. That actual loss is 9 small and hard to quantify is why statutes such as the Fair Credit Reporting Act provide for 10 modest statutory damages without proof of injury. Any Class Members who suffered substantial 11 actual damages due to identity theft or other damages resulting form the violations alleged above 12 will be entitled to opt out of this action, should they so desire, and litigate their claims 13 independently. 14 15 PRAYER FOR RELIEF Plaintiff, on behalf of herself and the Class, requests that the Court order the following

16 relief and enter judgment against Oilily B.V. as follows: 17 A. An order certifying the proposed members of the Class and appointing

18 Plaintiff and her counsel of record to represent the Class; 19 B. A judgment awarding Plaintiff and members of the Class statutory damages

20 under 15 U.S.C. §1681n for each willful violation as alleged herein; 21 C. A judgment awarding Plaintiff and members of the Class punitive damages

22 under 15 U.S.C. §1681n; 23 24 25 26 27 28
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D. E. F.

Pre-judgment and post-judgment interest as permitted by law; Attorneys' fees, expenses and the costs of this action; All other and further relief as the Court deems necessary, just and proper.

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JURY DEMAND Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a trial by jury for all issues so triable

3 under the law. 4 Dated: September 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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, 2007

Respectfully submitted, Pierce Gore (State Bar No. 128515) GORE LAW FIRM 900 East Hamilton Avenue Suite 100 Campbell, CA 95008 By: ___________________________ Pierce Gore J. Brandon McWherter Charles L. Holliday Clinton H. Scott SPRAGINS BARNETT & COBB, PLC 312 E. Lafayette Street P.O. Box 2004 Jackson, TN 38302 (731) 424-0461 (731) 424-0562 (fax) Justin S. Gilbert GILBERT & RUSSELL, PLC 2021 Greystone Dr. Jackson, TN 38305 (731) 664-1340 (731) 664-1540 (fax) Don Barrett David McMullan DON BARRETT, P.A. 404 Court Square North P.O. Box 987 Lexington, MS 39095 (662) 834-2376 (662) 834-2628 (fax) Charles Barrett BARRETT & ASSOCIATES, P.A. 6518 Highway 100 Suite 210 Nashville, TN 37205 (615) 515-3393 (615) 515-3395 (fax) Attorneys for Plaintiff

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