Emerging Class Action Threat: Credit Card Data Protection Under FACTA

Litigation Trends and Effective Defense Strategies

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, March 12, 2008

Program Materials

Description

Since the full implementation of the Fair and Accurate Credit Transactions Act (FACTA) in late 2006, hundreds of class action suits have been filed against major corporations in federal courts alleging that printing credit card receipts with prohibited information is a willful violation of FACTA.

U.S. District Courts in California and Illinois recently certified the first litigation classes in FACTA cases, creating uncertainty about how corporations will fare in FACTA litigation. Penalties for violating FACTA can be huge given the number of credit card transactions merchants process daily.

Whether a defendant's failure to mask prohibited information constitutes “willful” behavior is the determining factor in liability. The U.S. Supreme Court recently touched upon the willfulness question in Safeco v. Burr but did not completely resolve the issue.

Listen as our authoritative panel of legal specialists discusses the pending FACTA class action litigation and strategies for defending such suits.

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Outline

  1. Recent trends and status of FACTA class action lawsuits
    1. FACTA overview
    2. Lawsuit allegations
    3. Location of lawsuits
    4. Consumer private right of action – Eskandarian v. IKEA (California)
    5. Merchant lawsuits against Point-Of-Sale vendors
    6. Class certification activity
    7. Settlement activity
  2. Strategies for defeating class certification or minimizing liability
    1. Defeating class certification – An updated scorecard
    2. No proof of actual damages
    3. Prompt investigation and remediation of violations
    4. No willfulness on part of merchants – Safeco v. Burr (U.S. Supreme Court)
    5. Discovery strategies
    6. Settlement strategies
    7. HR4008
  3. What merchants should do now
    1. Verify that POS systems and “receipt printers” (in-store and on-line) are programmed to comply with FACTA
    2. Correct noncompliance immediately to avoid liability and minimize damages
    3. Document compliance efforts
    4. Develop comprehensive security policy
      1. Designate coordinator of security program
      2. Identify internal and external risks to security of personal information
      3. Implement reasonable safeguards to control risks identified
      4. Evaluate and modify security program after material changes to company’s operations
      5. Train employees
    5. Be aware of state laws
    6. Online sales versus in-person sales

Benefits

The panel reviewed these and other key questions: 

  • What are the recent trends in FACTA consumer class actions?
  • What penalties do merchants face for violating FACTA?
  • How can defense counsel defeat certification or minimize liability in FACTA cases?
  • What is the impact of the Safeco decision on FACTA litigation?

Faculty

John Nadolenco
John Nadolenco
Partner
Mayer Brown

He represents companies in class action defense and consumer litigation and is Co-Leader of the firm's Consumer Class...  |  Read More

Richard M. Hoffman
Richard M. Hoffman
Partner
Wildman Harrold

He litigates complex commercial cases on behalf of national and international companies in a wide array of industries....  |  Read More

Douglas C. Rawles
Douglas C. Rawles
Partner
Reed Smith

He represents retailers in consumer class actions brought in federal and state courts, including cases involving FACTA...  |  Read More