In Grimes v. Rave Motion Pictures No. 07-AR-1397-S (N.D.Ala. 2008), Judge William Acker found FACTA’s penalty provision of “damages of not less than $100 and not more than $1,000” for each violation unconstitutionally vague in the context of a FACTA claim arising out of businesses’ failure to truncate credit card numbers on electronically printed receipts. The Court noted that imposing punitive damages without actual damages is confiscatory, and held:
“Congress said “not less than $100”, and this court must follow Congress, even if it means bankruptcy for every business in this country, that is, of course, unless this Congressional enactment is invalid, as this court thinks it is. ¶ To wait for the assured destruction of these four defendants before removing their exposure to the destructive effect of this unconstitutional statute would be both unfair and a great waste of judicial time and effort, and this court respectfully declines the request of the United States to put off the inevitable. ¶ Based on the foregoing, FACTA is, on its face and in its application to these defendants, a bomb that already has exploded or is so sure to explode that it needs diffusing. There is no point in waiting to see if these plaintiffs can prove the obvious, namely, that defendants did, in fact, willfully fail to truncate the credit card receipts of the plaintiffs. Either summary judgment for defendants must be granted now, or summary judgment for the plaintiffs will be granted later. A separate order granting all defendants’ motions for summary judgment will be entered”.
grimes-v-rave-motion-pictures-5-28-08-memorandum-opinion Note: the US House and Senate unanimously passed HR 4008 (www.govtrack.us/congress/billtext.xpd?bill=h110-4008) to amend FACTA stating that “any person who printed an expiration date on any receipt provided to a consumer at a point of sale or transaction between Decmeber 4, 2004 and the date of the enactment of this subsection but otherwise complied with the requirements of section 605(g) for such receipt shall not be in willful noncompliance with section 605(g) by reason of printing such expiration date on the receipt”.