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Hammer v. Sam's East, Inc.

United States Court of Appeals, Eighth Circuit

June 5, 2014

Steven E. Hammer, individually and on behalf of all others similarly situated; Michael D. White, individually and on behalf of all others similary situated, Plaintiffs - Appellants,
v.
Sam's East, Inc., doing business as Sam's Club; Does, 1-10, inclusive; Sam's West, Inc., doing business as Sam's Club; Wal-Mart Stores, Inc., individually, doing business as Sam's Club, doing business as Sam's Wholesale Club; Does, 1-8, inclusive, Defendants - Appellees; United States of America, Intervenor Steven E. Hammer, individually and on behalf of all others similarly situated; Michael D. White, individually and on behalf of all others similary situated, Plaintiffs - Appellees, United States of America, Intervenor
v.
Sam's East, Inc., doing business as Sam's Club, Defendant - Appellant, Does, 1-10, inclusive, Defendant, Sam's West, Inc., doing business as Sam's Club; Wal-Mart Stores, Inc., individually, doing business as Sam's Club, doing business as Sam's Wholesale Club, Defendants - Appellants, Does, 1-8, inclusive, Defendant

Submitted September 25, 2013

Page 493

[Copyrighted Material Omitted]

Page 494

Appeal from United States District Court for the Western District of Missouri - Kansas City.

For Steven E. Hammer, individually and on behalf of all others similarly situated (12-3724, 12-3858), Plaintiff - Appellant: Kenneth Eugene Cox, Kelly L. McClelland, Ryan L. McClelland, Jerome M. Patience, MCCLELLAND LAW FIRM, Liberty, MO; Matthew R. Crimmins, Karen W. Renwick, Roy Frederick Walters, WALTERS & BENDER, Kansas City, MO.

For Michael D. White, individually and on behalf of all others similary situated (12-3724, 12-3858), Plaintiff - Appellant: Kenneth Eugene Cox, Kelly L. McClelland, Ryan L. McClelland, Jerome M. Patience, MCCLELLAND LAW FIRM, Liberty, MO; Matthew R. Crimmins, Roy Frederick Walters, WALTERS & BENDER, Kansas City, MO.

For United States (12-3724, 12-3858), Intervenor: Christine Noel Kohl, U.S. DEPARTMENT OF JUSTICE, Civil Division, Appellate Staff, Washington, DC; Michael Jay Singer, U.S. DEPARTMENT OF JUSTICE, Civil Rights Division, Appellate Section, Washington, DC.

For Sam's East, Inc., doing business as Sam's Club, Wal-Mart Stores, Inc., individually, doing business as Sam's Club, doing business as Sam's Wholesale Club, Defendants - Appellees (12-3724): Ze-wen Julius Chen, Pratik A. Shah, AKIN & GUMP, Washington, DC; James R. Eiszner, Rebecca Joy Schwartz, Gregory Khan Wu, SHOOK & HARDY, Kansas City, MO.

For Does, 1-10, inclusive, Defendant - Appellee (12-3724): Rebecca Joy Schwartz, SHOOK & HARDY, Kansas City, MO.

For Sam's West, Inc., doing business as Sam's Club, Defendant - Appellee (12-3724): Scott H. Aripoli, James R. Eiszner, Rebecca Joy Schwartz, Gregory Khan Wu, SHOOK & HARDY, Kansas City, MO; Ze-wen Julius Chen, Pratik A. Shah, AKIN & GUMP, Washington, DC.

For Does, 1-8, inclusive, Defendant - Appellee (12-3724): James R. Eiszner, Rebecca Joy Schwartz, SHOOK & HARDY, Kansas City, MO.

For Sam's East, Inc., doing business as Sam's Club, Defendant - Appellant (12-3858): James R. Eiszner, Rebecca Joy Schwartz, Gregory Khan Wu, SHOOK & HARDY, Kansas City, MO; Pratik A. Shah, AKIN & GUMP, Washington, DC.

For Sam's West, Inc., doing business as Sam's Club, Wal-Mart Stores, Inc., individually, doing business as Sam's Club, doing business as Sam's Wholesale Club, Defendants - Appellants (12-3858): Scott H. Aripoli, James R. Eiszner, Rebecca Joy Schwartz, Gregory Khan Wu, SHOOK & HARDY, Kansas City, MO; Pratik A. Shah, AKIN & GUMP, Washington, DC.

Before RILEY, Chief Judge, BRIGHT and BYE, Circuit Judges.

OPINION

Page 495

BRIGHT, Circuit Judge.

In this action, plaintiffs (appellants) Steven Hammer and Michael White allege that Wal-Mart Stores, Inc., Sam's East, Inc., and Sam's West, Inc. (collectively " Sam's Club" )[1] willfully violated a provision of the Fair and Accurate Credit Transactions Act (FACTA), 15 U.S.C. § 1681c(g)(1), which prohibits a person accepting credit or debit cards for a consumer transaction from " print[ing] more than the last five digits of the card number . . . upon any receipt provided to the cardholder." Despite its conclusion that Sam's Club violated FACTA, the district court[2] granted summary judgment of dismissal in favor of Sam's Club on the ground that the violation was not willful. We agree, and therefore affirm.

I. Background

Sam's Club, a membership-only retailer, requires customers to have a membership card and number in order to shop at a Sam's Club store. Sam's Club members may also apply for a Sam's Club Private Label Credit Card, which doubles as a membership card and a credit card. The card has a 19-digit credit card number. The first seven digits comprise the Bank Identification Number, which identifies the banking institution ...


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