A Clarification — or Trial Lawyer Hit?

Posted May 19, 2008 at 6:19pm

A bill that supporters say is simply a clarification to an existing law is raising the ire of a segment of the trial bar, which says the measure would do far more: give companies retroactive immunity for breaking the law.

Called the Credit and Debit Card Receipt Clarification Act of 2007, the bill unanimously passed the House last week. But now lawyers who oppose the measure say they are stepping up their opposition as it moves to the Senate.

The bill, cheered by the Retail Industry Leaders Association and the National Restaurant Association and authored by Rep. Tim Mahoney (D-Fla.), would nullify lawsuits filed by people whose credit card information was incorrectly displayed on receipts by merchants or restaurants.

A 2003 update to the Fair Credit Reporting Act required that merchants eliminate all but the last five digits of a customer’s credit card number and not display the expiration date of the card.

But the language of the bill is ambiguous. Section 113 of its Title 1 reads: “… no person that accepts credit cards or debit cards for the transaction of business shall print more than the last five digits of the card number or the expiration date upon any receipt provided to the cardholder …”

But many merchants say the “or” made the requirement appear to be an “either-or” situation, and thought they were in compliance by simply removing most of the credit card number while leaving the expiration date.

John Leighton, a lawyer in Florida with Leesfield Leighton & Partners, has brought about 10 of these suits and said he was caught off guard by the swift action in the House.

“This was passed on a voice vote at night,” said Leighton, who is a member of the trial lawyer lobby group, American Association for Justice.

Now, he said, he and his allies are lobbying the Senate to put the brakes on the bill, which would change the Fair and Accurate Credit Transactions Act of 2003.

“Turning around and giving companies immunity after they violated the law and have been sued, is just plain wrong,” he said. “It sets a bad precedent.”

But Sen. Charles Schumer (D-N.Y.), who is the chief sponsor of the legislation in the Senate, disagrees.

“This bill will put a stop to destructive lawsuits against companies whose only mistake was leaving expiration dates on credit card receipts — an error that doesn’t put consumers at any risk of fraud or identity theft,” he said in a statement e-mailed to Roll Call.

“Congress never intended for the law to be used to drive companies out of business with expensive legal cases that don’t involve any harm to consumers. My bill protects both consumers and businesses by smoothing the transition to new rules for credit card receipts,” the Schumer statement continued.

Companies who have been sued by such lawyers as Leighton over the expiration dates say they cheer the measure and said that, in reality, opposition to the bill is from only a tiny sector of the trial bar.

“We don’t believe that there is organized trial lawyer opposition to this,” said Larry Sidman, a partner at Paul Hastings, whose client is the FACTA Reform Coalition. The coalition’s members include retailers Overstock.com, Longs Drug Stores, discount retailer Ross and Supervalu.

“This has been quite thoroughly vetted,” Sidman added. “There might be individual trial lawyers. … They would be concerned. But this is common sense legislation.

“It still protects consumers from any actual harm and only is designed to really prevent the levying of outrageous statutory damages for a practice which almost everybody deems harmless and which was inadvertent in 98 percent of the cases,” Sidman said.

Mike Shutley, the restaurant association’s director of legislative affairs, said the original law’s wording caused too much confusion, and Congress, in the bill dubbed H.R. 4008, was only bringing clarity.

The lawsuits, he said, are the “result of the confusing language in the original” Fair and Accurate Credit Transactions Act that passed in 2004.

“It’s a problem that Congress unintentionally created, and they are providing clarity with this important bill,” Shutley added.

Most merchants got rid of most of the credit card number but left the expiration date, thinking they had done enough to comply with the law.

He said that if people actually had their identity stolen then those lawsuits could continue to be litigated.

Leighton said his clients were not victims of identify theft, but instead were harmed because the merchants illegally exposed them to the potential for identify theft. He has sued such companies as Apple, Intuit and MovieTickets.com, among others.

He called H.R. 4008 “a radical departure from traditional lawmaking” and added that his side is working to stop the measure.

“They’re claiming these suits are frivolous. They’re not,” Leighton said. The original FACTA, he said, is not at all confusing: “It’s as clear as can be.”