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Case 1:08-cv-02134 Document 21 Filed 07/09/2008 Page 1 of 3 910.0e01 Att:1 No. 34450 IN THE UNITEDSTATESDISTRICTCOURT FORTHE NORTHERNDISTRICTOF ILLINOIS EASTERNDIVISION TONI IVANOV, Individuallyand on behana class, v.
Plaintiff, CASENUMBER:
ASSIGNEDJUDGE:
ALA CARTEENTERTAINMENT,
INC.,
EXCALIBURCHICAGO,INC.,and DOES1 - 10, 08 CV2134 JUDGEZAGEL DESIGNATED MAGISTRATEJUDGE: MAGISTRATEJUDGEMASON Defendants.
DEFENDANTS'MOTIONTO STRIKE
PLAINTIFF'SAMENDEDCOMPLAINT-CLASS ACTION NOW COMEDefendants,ALA CARTEENTERTAINMENT INC., an Illinoiscorporationand EXCALIBUR CHICAGO INC.,an Illinoiscorporation, throughCounsel,MatthewJ. Morrissey & Associates, Ltd.,andrulepursuant to Rule12(f)of the FederalRulesof CivilProcedure to strikethe PlaintiffsAmended Complaint-Class Actionor, in the altemative, to strikeParagraphs 3, 4, 27, 28, 30,31,32,33,34, 35,and 36of thePlaintiffsAmended Complaint.
1.
The Plaintiffhas done it again. The Plaintiffinitiallyfiled his "Complaint-Class Action" whichwasalsosubjectto a Rule12(f)Motionto Strike.TheMotionto Strikewasgrantedby JudgeZagel onJune5, 2008.Theplaintiffwasorderedto re-plead. 2.
The Plaintiffmakesa disingenuous anda~ogether inadequate attemptto curethedefects of hisoriginalcomplaint withtheamended complaint.
3.
For somereasonthe Plaintiffrefusesto followRule8(a) of the FederalRulesof Civil Procedureby pleadinga complaintwhichsetsforth a claimfor reliefcontaining:(1) a shortand plain statement of thegroundsuponwhichtheCourt'sjurisdiction depends;(2)a shortandplainstatement of the claimshowingthatthe pleaderis entitledto relief;(3)anda demandfor judgmentfor the reliefthepleader seeks.
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Case 1:08-cv-02134 4.
Document 21 Filed 07/09/2008 Page 2 of 3 Paraaraph3 c~esa legaldecisionthat apparentlytouchesuponthe federalstatutein question. Thatis not a simplestatementof fact.
5.
Paraaraph4 purportsto explainthe "purpose" of theStatuein questionandc~esstatistics of a federalagency.Thereis no referenceto the publication of the federalagencywherethe "estimates" aregiven.Thisis nota shortandplainstatement of thePlaintiff'sclaim.
6.
Paraaraph27 allegesthatthe requirement to removecred~cardaccountnumbersfrom creditcard receiptswas "widelypublicized"by creditcard associations such as Visa and Mastercard.
Where? ThePlaintiffdoesnotprovidecopiesof thesepronouncements. 7.
Paraaraph28 citesa tradepublication fromtheVisacreditcardcompanyandalsomakes referenceto a "picture"of a cred~card receipt. Noneof these ~emsare attachedto the Plaintiff's complaint.Evenif theywere,theystillarein violationof Rule8(a). 8.
Paraaraphs30 throuah 36, collectively,do not containshort or plain statementsof anything.Theyhavereferenceto a varietyof publications as well as providingwhatappearsto be the Plaintiff'sattorney's opinionasto whathappensif thefederalstatuesin questionarenotfollowed. 9.
The Defendants knowthat the Plaintiffis bringinga claimpursuantto a federalstatute dealingwnhcredncardreceipts.Whyis it thatthe Plaintiffcannotsimplystatethathewasallegedlygiven a creditcardreceiptfromtheDefendants thatviolatedthestatutein question?
10.
Whatis the Plaintiff'sagendain termsof pleadinghis originalandamendedcomplaints? TheDefendants, quitefrankly,do not reallycare. Whatthe Defendants careaboutis thattheybe required to answera pleadingthat setsforth:a shortand plainstatementof the groundsuponwhichthe court's jurisdictiondepends;a short and plain statementshowingthat the Plaintiffis entnledto relief;and a demandforjudgmentforthe reliefthe Plaintiffseeks.SeeRule8(a).
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Case 1:08-cv-02134 11, Document 21 Filed 07/09/2008 Page 3 of 3 The Defendantsalso insist that the Plaintiffbe boundby the FederalRulesof Civil Procedure whichrequiresthatall allegations or averments of claimshallbe limitedasfar aspracticable to a statement of a singlesetof circumstances, WHEREFORE, Defendants, ALACARTEENTERTAINMENT, INC" and EXCALIBUR CHICAGO, INC.,requestan orderof thisCourtstrikingthe PlaintiffsAmendedComplaint andrequiringthe Plaintiffto file a SecondAmendedComplaint consistentwnhRule8(a)and Rule10(b)of the FederalRulesof Civil Procedureor, in the alternative,strikingParagraphs 3, 4, 27, 28, and 30 through36 of the Plaintiff's Amended Complaint.
Respectfully Submitted, MATTHEW
J. MORRISSEY & ASSOCIATES, LTD.
sf MatthewJ. Morrissey MATTHEWJ. MORRISSEY Attorneyfor Defendants MATTHEWJ. MORRISSEY& ASSOCIATES,LTO.
33 N. DearbornStreet,Ste. 502 Chicago,Illinois 60602 312.541-4600
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Case 1:08-cv-02134 Document 21-2 Filed 07/09/2008 Page 1 of 10 IN THE UNITED STATESDISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERNDIVISION TONI IVANOV, individuallyandon behalfof a class, Plaintiff, v.
) ..
ALACARTEENTERTA~NT.INC.
.
-- --ana J::.A\,;J\LUSUK \,;nJ\,;J\UV.
and DOES 1-10.
IN\,;..
1 : 08 CV 2134
J )} ) ) Defendants.
) AMENDED COMPLAINT - CLASS ACflON INTRODUCflON 1.
Plaintiff Toni Ivanov brings this action to secureredressfor the violation by Ala Carte Entertainment,Inc. and Excalibur Chicago, Inc., of the Fair Credit Reporting Act ("FCRA"), as amendedby the Fair and Accurate Credit TransactionsAct of2003 ("FACTA"). 2.
One provision of FACTA, codified as 15 V.S.C. §168Ic(g), provides that: 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 sale or transaction. 3.
The "truncation requirement" of 15 V.S.C. 1681c(g)is unambiguous. Businesses must properly redactthe credit card accountnumberfrom any receipt provided to a cardholder, and also redactthe expiration date. Iosel/o v. Leib/ys, Inc., 502 F.Supp.2d782 (N.D.III. 2007). 4.
The purposeof 15 V.S.C. §168Ic(g) is to prevent identity theft. The Federal Trade Commission estimatesthat over 9 million personseachyear have their identity assumed by criminals for financial gain, causing lossesin excessof $50 billion. I
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Case 1:08-cv-02134 Document 21-2 Filed 07/09/2008 Page 2of10 3s 15 U.S.C. §1681¢(g) gave merchants who accept credit cards or debit cards up to three years to comply, with full compliance required no later than December 4, 2006.
6. Defendants have willfully violated this law, and have failed to protect plaintiff and others similarly situated against identity theft, credit card fraud, and debit card fraud by failing to comply with the truncation requirement.
JURISDICTION AND VENUE
7. This Court has subject matter jurisdiction under 28 U.S.C. §1331 and 15 U.S.C. §1681p.
8. Venue in this district is proper because defendants do business here.
PARTIES
9. Plaintiff Toni Ivanov is a resident of this district.
10. Defendants Ala Carte Entertainment, Inc. and Excalibur Chicago, Inc. are Illinois corporations that operate the Excalibur nightclub at 632 North Dearborn Street, Chicago, Illinois. The registered agent and office of each is Fred R. Hoffmann, 2330 North Hammond Dr., Suite G, Schaumburg, Illinois.
ll. Both defendants are a “person that accepts credit cards or debit cards for the transaction of business” under FACTA.
12. Defendants Does 1-10 are individual officers, directors, employees and agents of the corporate defendants who authorized, directed or participated in the violations of law complained of.
FACTS
13. On May 27, 2007, plaintiff received from defendants at the Excalibur
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Case 1:08-cv-02134 Document 21-2 Filed 07/09/2008 Page 3of 10 nightclub located at 632 North Dearborn Street, Chicago, Illinois, a computer-generated cash register receipt which displayed plaintiff's full card number and the expiration date.
CLASS ALLEGATIONS
14. Plaintiff brings this action on behalf of a class pursuant to Fed.R.Civ.P. 23(a) and (b)(3).
15. The class is defined as ‘“‘all persons to whom defendants provided an electronically printed receipt at the point of sale or transaction, in a transaction occurring in Illinois after December 4, 2006, which displays more than the last five digits of the person’s credit card or debit card number.”
16. There are over 100 persons in the defined class.
17. The class is so numerous that joinder of all individual members in one action would be impracticable.
18. Plaintiffs claims are typical of the claims of the class members. All are based on the same legal theories and arise from the same unlawful and willful conduct.
19. There are common questions of fact and law affecting members of the class, which predominate over questions which may affect individual members. These include the following:
a. Whether defendants had a practice of providing customers with a sales or transaction receipt which failed to comply with the truncation requirement; b. Whether defendants thereby violated FACTA; c Whether defendants’ conduct was willful; and
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Case 1:08-cv-02134 Document 21-2 Filed 07/09/2008 Page 4 of 10 Identification and involvement of the Doe defendants.
!irly and adequatelyrepresentthe classmembers. Plaintiff has the interestsof the classmembers.and hasretained experienced 21.
A class action is superior to other available meansfor the fair and efficient adjudication of the claims ofthe class members. Individual actions are not economically feasible.
VIOLATION ALLEGED
22.
With respectto hardwareand software usedto conduct credit and debit card transactionsthat were first put into use after January 1,2005, 15 V.S.C. §1681c(g)(3)(B) requiredimmediatecompliance with the provisions of 15 V.S.C. §1681c(g)(I). 23.
With respectto hardwareand software usedto conduct credit and debit card transactionsthat were first put into use before January 1,2005, IS V.S.C. §168Ic(g)(3)(A) requiredcompliance with the provisions of IS V.S.C. §1681c(g)(l) on or after December4, 2006.
24.
Defendantsacceptcredit cardsand debit cards in the courseof transacting businesswith personssuch as plaintiff and the class members. In transactingsuch business, defendantsusecash registersor other machinesor devicesthat electronically print receiptsfor credit card or debit card transactions.
25.
After the effective date of the statute,defendants,at the point of sale or transaction,provided plaintiff and eachclassmemberwith one or more electronically printed receipts,on each of which defendantsfailed to comply with the truncation requirement.
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Case 1:08-cv-02134 Document 21-2 Filed 07/09/2008 Page 5 of 10 26.
Defendantsknew or should have known of the truncation requirement.
27.
The truncation requirementwas widely publicized, by credit card associations (suchas Visa. Mastercard,and others), merchantbanks,and national and statetrade associations. 28.
In addition, credit card associationsrequired businessesto truncate customers' receipts,by contract. For example,the August 12,2006 edition of "Rules for Visa Merchants" (p. 62), which is binding upon all merchantsthat acceptVisa cards,expressly requiresthat "only the last four digits of an account number should be printed on the customer's copy of the receipt" and "the expiration date should not appearat all." Thesestatementswere accompaniedby a picture of a receipt showing precisely what had to be removed. VISA required complete complianceby July 1,2006, five monthsaheadof the statutory deadline.
29.
Defendantsaccept Visa cardsand are partiesto a contract requiring compliance with the above-quotedrequirement.
30.
American Express hasa manualthat containsa similar depiction of what information must be redacted.
31.
The publication of a customer'scredit card or debit card number exposesthat customerto the possibility of identity theft, which is the obvious reasonthat credit card associations,and then Congress,requiredthe truncation of expiration dates. 32.
Credit and debit card accountnumbersare not randomly generated. Instead, accountnumbersreflect an internal coding schemeset forth by the International Organizationfor Standardization("ISO") Standard7812, which defines the content in the cards' magneticstrips. Consistentwith this standard,every credit card numberconsistsof the following: (a) a single digit Major Industry Identifier (UMII"); (b) an issueridentification number ("IIN"); (c) an
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Case 1:08-cv-02134 number Document 21-2 Filed 07/09/2008 Page 6 of 10 unique to the card; and (d) a check digit.
33.
Failure to properly truncatethe credit card account numberprovides credit card fraudstersinformation that allows them to make unauthorizedpurchases. Where,as here,the entire card number is printed on the receipt, even unsophisticatedidentity thieves, who obtain the receipt by "dumpster diving" or otherwiseacquire the unredactedreceipt, can commit fraud. 34.
The importanceof truncating expiration datesbecomesmanifest where, as here, the credit card number is provided on the receipt. The expiration date is an important security checkthat corroboratesthat a personattempting to use a given accountnumber is actually the authorizeduser of the card. Further, the expiration datesare also usedto confirm that a person making a purchaseover the phone or on the internet actually hasthe card in their possession. 35.
The cost of truncating credit card accountnumbersand expiration datesis minimal.
36.
Most of defendants' businesspeersand competitors readily brought their credit card and debit card receipt printing processinto compliance with FACTA by programmingtheir card machinesand devicesto comply with the truncation requirement. Defendantscould have readily done the same.
37.
Defendantswillfully disregardedFACTA's requirementsand continuedto usecashregistersor other machinesor devicesthat print receipts in violation of FACTA. 38.
The FCRA, 15 V.S.C. §1681n,provides:
816111n- C'ivU lisahilitv fnrwillfnl nnnf'nmnlisanf'P
(a) In general. Any person who willfully fails to comply with any requirement imposed under this title [15 use §1681 et seq.] with respect to any consumer is liable to that consumer in an amount equal to the sum of-
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Case 1:08-cv-02134 Document 21-2 Filed 07/09/2008 Page 7 of 10 (1)
(A) any actual damages sustained by the consumer as a result ofthe failure or damages of not less than $ 100 and not more than $ 1,000; or
(B) in the caseof liability of a natural person for obtaining a consumer report under false pretensesor knowingly without a permissible purpose, actual damages sustained by the consumer as a result of the failure or $ 1,000, whichever is greater;
(2) such amount of punitive damagesas the court may allow; and
(3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court...
39.
The FCRA, 15 V.S.C. §1681p,provides:
§ 1681p. Jurisdiction of courts; limitation of actions An action to enforce any liability created under this title [15 U.S.c. §1681et seq.] may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction, not later than the earlier of (1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or
(2) 5 years after the date on which the violation that is the basis for such liability occurs.
WHEREFORE, plaintiff requeststhat the Court enterjudgment in favor of plaintiff For statutory damagesof $100 to $ I ,000 per violation; For attorney's fees, litigation expensesand costs; and
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Case 1:08-cv-02134 c.
Document 21-2 Filed 07/09/2008 Page 8 of 10 For such other and further relief as the Court may deemproper including punitive damages sf ThomasE. Soule , Thomas E. Soule Daniel A. Edelman CathleenM. Combs JamesO. Latturner ThomasE. Soule EDELMAN, COMBS, LA TIURNER & GOODWIN, LLC 120 S. LaSalle Street, 18th Floor Chicago, Illinois 60603
(312) 739-4200
(312) 419-0379 (FAX) JURY DEMAND Plaintiff demandstrial by jury. 51Thomas E. Soule Thomas E. Soule NOTICE OF LIEN Pleasebe advised that we claim a lien upon any recovery herein for one-third of the recovery.or such amount as a court awards. sf Thomas E. Soule Thomas E. Soule Daniel A. Edelman ThomasE. Soule EDELMAN, COMBS, LA TfURNER & GOODWIN, LLC 120 S. LaSalle Street, 18th Floor Chicago, Illinois 60603
(312) 739-4200
(312) 419-0379 (FAX)
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Case 1:08-cv-02134
Document 21-2
Filed 07/09/2008
Page 9 of 10
CERTIFI CATE OF SERVICE
I. ThomasE. Soule. herebycertify that the precedingwas filed with the Court electronically on June 18,2008. and that the samewas servedon Matthew J. Morrissey. counselfor defendant.by facsimile and mail. as follows: Matthew J. Morrissey MATfHEW J. MORRISSEY & ASSOCS.,LTD. 33 North Dearborn Street, Suite 502 Chicago, Illinois 60602
(312) 541-4601(FAX) Is! Thomas E. Soule Thomas E. Soule
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Case 1:08-cv-02134 Document 21-2 https:/lccf.ilnd.uscourts.gov/cgi-binIDispatch.p Filed 07/09/2008 Page 10 of 10 Complaints 1:08-cv-O2134Ivanov v. Ala Carte Entertainment.Inc. at al MASON United StatesDistrict Court Northern District of Illinois -CMlECF LIVE, Ver 3.2.1 Notice of Electronic Filing The following transaction was entered by Soule, Thomas on 6/18/2008 at 4:41 PM COT and fl] 6/18/2008 Ivanov v. Ala Carte Entertainment. Inc. et al Case Name:
1 :O8-cv-2134 Case Number:
Toni Ivanov Filer:
Document Number: 20 Docket Text:
AMENDED complaint by Toni Ivanov against all defendants (Soule, Thomas) 1:08-cv-2134Notice has been electronically mailed to: CathleenM. Combs ccombs@edcombs.com Daniel A. Edelman courtecl@edcombs.com.
dedelman@edcombs.com JamesO. Latturner jlatturner@edcombs.com MatthewJohn Morrissey ThomasEverett Soule mmorrissey@mjmorrisseylaw.com tsoule@edcombs.com 1:08-cv-2134Notice has been delivered by other meansto: The following document(s)are associatedwith this transaction: Document description:Main Document Original filename:n/a Electronic document Stamo:
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