Shlahtichman v. 1-800 CONTACTS, INC.

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-4073

E DUARD SHLAHTICHMAN,
Plaintiff-Appellant,
v.

1-800 C ONTACTS, INC.,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 4032—John W. Darrah, Judge.

A RGUED A PRIL 15, 2010—D ECIDED A UGUST 10, 2010

Before B AUER, R OVNER, and H AMILTON, Circuit Judges.
R OVNER, Circuit Judge. After Eduard Shlahtichman
purchased contact lenses over the Internet, 1-800 Contacts,
Inc. emailed him a confirmation of his order which re-
flected the expiration date of his credit card. The Fair
and Accurate Credit Transactions Act of 2003 (“FACTA”)
prohibits a vendor who accepts a credit or debit card as
a means of payment from “print[ing] more than the last
5 digits of the card number or the expiration date upon
2 No. 09-4073

any receipt provided to the cardholder at the point of
the sale or transaction,” 15 U.S.C. § 1681c(g)(1); the pro-
hibition “appl[ies] only to receipts that are electronically
printed,” as opposed to those on which the credit or debit
card information is written by hand or taken by imprint
or photocopy, § 1681(c)(g)(2). Did 1-800 Contacts “elec-
tronically print” the expiration date of Shlahtichman’s
credit card, and thereby violate FACTA, by including it
in the email? This is a question of first impression at the
appellate level. We answer that question in the negative
and affirm the dismissal of Shlahtichman’s complaint.
1-800 Contacts sells contact lenses over the Internet
and accepts payment by credit card. On or before June 2,
2009, Shlahtichman made an Internet purchase from 1-800
Contacts using his credit card. 1-800 Contacts then sent
Shlahtichman a computer-generated email confirming
his order. Among the information included in the confir-
mation was the expiration date of Shlahtichman’s credit
card. Shlahtichman received the email at his home in
Illinois on June 2, 2009. These are the essential factual
allegations of Shlahtichman’s complaint, and we assume
their truth for purposes of reviewing the dismissal of
his suit. E.g., Addis v. Whitburn, 153 F.3d 836, 837 (7th
Cir. 1998).
FACTA amended the Fair Credit Reporting Act of 1970,
15 U.S.C. §§ 1681 et seq. (“FCRA”), to add, among other
provisions, a “receipt truncation” requirement aimed at
combating identity theft. See § 1681c(g). As amended, the
statute provides:
No. 09-4073 3

Truncation of credit card and debit card numbers
(1) In general
Except as otherwise provided in this subsection, 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 the sale or transaction.
(2) Limitation
This subsection shall apply only to receipts that are
electronically printed, and shall not apply to transac-
tions in which the sole means of recording a credit
card or debit card account number is by handwriting
or by an imprint or copy of the card.
(3) Effective date
This subsection shall become effective—
(A) 3 years after December 4, 2003, with respect to any
cash register or other machine or device that electroni-
cally prints receipts for credit card or debit card
transactions that is in use before January 1, 2005; and
(B) 1 year after December 4, 2003, with respect to
any cash register or other machine or device that
electronically prints receipts for credit card or debit
card transactions that is first put into use on or
after January 1, 2005.
§ 1681c(g). The statute permits a consumer to recover any
actual damages he sustains as a result of a negligent
violation, together with the costs of suit, see 15 U.S.C.
4 No. 09-4073

§ 1681o, or statutory damages (without any proof of
injury) of $100 to $1000 per violation, along with the
costs of suit, if the violation of the statute was willful, see
15 U.S.C. § 1681n(1)(A), (3).1
Shlahtichman filed a class action suit in Illinois state
court on behalf of himself and others similarly situated,
contending that 1-800 Contacts had violated the FCRA
as amended by FACTA by including the expiration date
of a purchaser’s credit card in the order confirmations
it sent by email. Because the suit arises under a federal
statute, 1-800 Contacts removed the action to the
district court. See 28 U.S.C. §§ 1331, 1441, 1446. It then
moved to dismiss Shlahtichman’s complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim on which relief could be granted.
The district court granted the motion and dismissed
the suit. Shlahtichman v. 1-800 Contacts, Inc., No. 09 C 4032,
2009 WL 4506535 (N.D. Ill. Dec. 2, 2009); R.26, 28. The
court cited two principal reasons for concluding that an
emailed order confirmation falls outside the scope of

1
The Credit and Debit Card Receipt Clarification Act of 2007,
Pub. L. No. 110-241, 122 Stat. 1565 (enacted June 3, 2008),
provided a (partial) safe harbor to vendors who merely printed
the expiration date of a consumer’s credit or debit card on a
receipt prior to June 3, 2008, by declaring that this limited
violation of the statute would not amount to a willful violation
of the statute. See § 1681n(d). However, 1-800 Contacts
emailed the receipt to Shlahtichman after June 3, 2008, and so
the safe harbor is inapplicable to this case.
No. 09-4073 5

the statute. “First, e-mail order confirmations are not
‘electronically printed’ receipts under FACTA.” Id. at *2
(emphasis ours). Noting that the statute leaves the term
“printed” undefined, the court adopted the plain and
ordinary meaning of the term, which signifies the
transfer of text, images, designs, and other information
to paper. Id. at *3. It rejected Shlahtichman’s contention
that the term should also be taken to include the display
of information on a computer screen, reasoning that
even if the word “print” can be understood in this
way, this is not its ordinary import. Id. The fact that the
effective date of the truncating provision turned on the
date on which the vendor’s “cash register or other
machine or device that electronically prints receipts”
came into use confirmed that the provision should be
understood to reach receipts that are printed on paper
by cash registers and similar devices. Id. at *4. And
the legislative history revealed that it was the misap-
propriation of those kinds of receipts that Congress
was concerned about when it passed FACTA. Id. “Second,
an e-mail order confirmation is not provided ‘at the
point of the sale or transaction’ under FACTA.” Id. at *2
(emphasis ours). As other courts had observed, the statu-
tory reference to receipts provided at “the point of the
sale or transaction” contemplates in-store transactions
rather than electronic commerce. Id. at *5. Even if a point
of sale can be ascribed to an Internet purchase—
Shlahtichman argued that the computer used by the
consumer to make the purchase represents the point of
sale—an email sent to the purchaser to confirm that
purchase is not provided at that point but rather is
6 No. 09-4073

directed to an email account that can be accessed any-
where. Id.
Although Shlahtichman brought this case as a class
action, no class was ever certified (no motion asking the
district court to do so was filed), so the dismissal of the
complaint only disposes of Shlahtichman’s individual
claim for relief. See, e.g., Phillips v. Ford Motor Co., 435
F.3d 785, 787 (7th Cir. 2006). Nonetheless, the district
court made clear that it contemplated no further pro-
ceedings in this case, see R. 26 (deeming the case closed),
so its judgment is final and our own appellate jurisdic-
tion is secure. See, e.g., McClain v. Retail Food Employers
Joint Pension Plan, 413 F.3d 582, 585 n.2 (7th Cir. 2005).
Consistent with the fact that no class was certified, we
shall treat Shlahtichman’s complaint as if it were filed
solely on his own behalf. Rutan v. Republican Party of Ill.,
868 F.2d 943, 947 (7th Cir. 1989) (en banc), aff’d in part &
rev’d in part on other grounds, 497 U.S. 62, 110 S. Ct. 2729
(1990).
Our review of the district court’s decision is de novo.
E.g., Hukic v. Aurora Loan Servs., 588 F.3d 420, 434 (7th Cir.
2009). The viability of Shlahtichman’s complaint turns
on the meaning of FACTA’s terms—in particular, the
term “print.” Absent a definition supplied by the
statute itself, we look to the ordinary or natural meaning
of the term. FDIC v. Meyer, 510 U.S. 471, 476, 114 S. Ct.
996, 1001 (1994) (citing Smith v. United States, 508 U.S.
223, 228, 113 S. Ct. 2050, 2054 (1993)); see also Hardt v.
Reliance Std. Life Ins. Co., 130 S. Ct. 2149, 2156 (2010). But
we must also look to the statute as a whole in discerning
No. 09-4073 7

a term’s meaning rather than examining it in isolation.
Samantar v. Yousuf, 130 S. Ct. 2278, 2289 (2010) (quoting
United States v. Morton, 467 U.S. 822, 828, 104 S. Ct. 2769,
2773 (1984)); Nken v. Holder, 129 S. Ct. 1749, 1756 (2009)
(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117
S. Ct. 843, 846 (1997)). “[W]hen the statute’s language is
plain, the sole function of the courts—at least where the
disposition required by the text is not absurd—is to
enforce it according to its terms.” Lamie v. U.S. Trustee,
540 U.S. 526, 534, 124 S. Ct. 1023, 1030 (2004) (quoting
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A.,
530 U.S. 1, 6, 120 S. Ct. 1942, 1947 (2000)).
As the district court noted, most courts have con-
cluded that the term “electronically printed” reaches only
those receipts that are printed on paper, as that under-
standing of the statute conforms to the ordinary meaning
of the term “print.” See Turner v. Ticket Animal, LLC, No. 08-
61038-CIV, 2009 WL 1035241 (S.D. Fla. Apr. 16, 2009);
Smith v. Under Armour, Inc., 593 F. Supp. 2d 1281 (S.D. Fla.
2008); Smith v. Zazzle.com, Inc., 589 F. Supp. 2d 1345,
1348 (S.D. Fla. 2008); Grabein v. Jupiterimages Corp., No. 07-
22288-CIV, 2008 WL 2704451 (S.D. Fla. Jul. 7, 2008) (report
and recommendation of magistrate judge), adopted,
2008 WL 2906866 (S.D. Fla. Jul. 28, 2008); King v.
Movietickets.com, Inc., 555 F. Supp. 2d 1339, 1340 (S.D. Fla.
2008); Haslam v. Federated Dep’t Stores, Inc., No. 07-61871
CIV, 2008 WL 5574762 (S.D. Fla. May 16, 2008); Narson v.
GoDaddy.com, Inc., No. CV-08-0177, 2008 WL 2790211
(D. Ariz. May 5, 2008). A minority have concluded that
the term should be understood to reach electronic
receipts that are displayed on the consumer’s computer.
8 No. 09-4073

Romano v. Active Network, Inc., No. 09 C 1905, 2009 WL
2916838 (N.D. Ill. Sept. 3, 2009); Harris v. Best Buy Co., 254
F.R.D. 82, 86-87 (N.D. Ill. 2008); Grabein v. 1-800-
Flowers.com, Inc., No. 07-22235-CIV, 2008 WL 343179 (S.D.
Fla. Jan. 29, 2008); Vasquez-Torres v. Stubhub, Inc., No. CV
07-1328, 2007 U.S. Dist. LEXIS 63719 (C.D. Cal. Jul. 2,
2007).2 We conclude that the majority view adopted by
the district court in this case is on firmer ground.
What FACTA covers are printed receipts. The same
technological advances that have given consumers
multiple means of paying their bills and purchasing
goods and services have also made it possible for the
receipts confirming those transactions to be provided in
the form of a voicemail, email, and text message as well
as the traditional paper receipt. But when one refers to
a printed receipt, what springs to mind is a tangible
document. To “print” a receipt thus ordinarily connotes
recording it on paper. “That is why [the plaintiff] had
to print a copy of his receipt to get it off of his com-
puter; it is why the machine used to transfer text from a
computer to paper is called a printer; and it is why a

2
An Internet merchant, in addition to or in lieu of sending
the consumer a receipt or confirmation via email, may generate
a receipt on its website at the time of the transaction, which
the consumer may (and is often encouraged to) print out for
her records. See, e.g., Under Armour, 593 F. Supp. 2d at 1282.
We do not view as material the distinctions between a receipt
that is displayed on the merchant’s website and one that is
emailed to the consumer for purposes of the issue presented
in this case.
No. 09-4073 9

judge who asks a law clerk to print a case does not intend
for the clerk to merely display the case on his computer
screen.” Jupiterimages, 2008 WL 2704451, at *8 (emphasis
in original).
Dictionaries are a helpful resource in ascertaining the
common meaning of terms that a statute leaves undefined,
see, e.g., Crawford v. Metro. Gov’t of Nashville & Davidson
County, Tenn., 129 S. Ct. 846, 850 (2009), and a canvass of
several leading dictionaries reveals that “print” in its
transitive verb form ordinarily connotes the transfer of
words or images to a tangible medium—often paper.
See O XFORD E NGLISH D ICTIONARY O NLINE, available at
http://english.oxforddictionaries.com (last visited Aug. 5,
2010) (“produce (books, newspapers, magazines, etc.),
especially in large quantities, by a mechanical process
involving the transfer of text, images, or designs to paper:
a thousand copies of the book were printed”); M ERRIAM-
W EBSTER D ICTIONARY O NLINE, available at http://merriam-
webster.com/dictionary (last visited Aug. 5, 2010) (“a: to
impress something in or on b: to stamp (as a mark) in
or on something”); D ICTIONARY . COM , available at
http://dictionary.reference.com (last visited Aug. 5, 2010)
(“to produce (a text, picture, etc.) by applying inked types,
plates, blocks, or the like, to paper or other material either
by direct pressure or indirectly by offsetting an image
onto an intermediate roller”) (citing Random House
Dictionary). True enough, these sources recognize that
the term, when used with reference to computers, also
can be understood to mean the display of text on a com-
puter’s viewing screen. M ERRIAM-W EBSTER D ICTIONARY
O NLINE (“P RINT OUT; also: to display on a surface (as a
10 No. 09-4073

computer screen) for viewing”); D ICTIONARY.COM (“Com-
puters. to produce (data) in legible alphanumeric or
graphic form”). For that matter, one can also “print to
file” and “print to PDF” (portable document format) in a
computer environment without transferring anything to
paper. See O XFORD E NGLISH D ICTIONARY O NLINE (“send
(a computer file) to a printer or to another, temporary
file”). But these usages of the term, while more frequent
in recent years, do not yet represent the ordinary or
natural meaning of “print.” Shlahtichman suggests that
use of the adverb “electronically” in section 1681c(g)(2)
(“[t]his subsection shall apply only to receipts that are
electronically printed . . .”) (emphasis ours) evinces a con-
gressional intent to broaden the meaning of the statutory
term to include the more modern usages, so that an
“electronically printed” receipt will include one that is
opened and displayed on the consumer’s computer. Yet,
the modifier “electronically” appears intended to distin-
guish those receipts that are printed by machine, as
opposed to those which are handwritten or created by
taking an impression of the card using an imprinter. See
Active Network, 2009 WL 2916838, at *3. In any case, what-
ever sort of printing that the consumer might do on his
or her computer is not printing done by a “person that
accepts credit cards or debit cards for the transaction of
business,” § 1681c(g)(1); and it is printing by the vendor,
rather than by the consumer, at which the statute is
aimed. Movietickets.com, 555 F. Supp. 2d at 1341-42;
GoDaddy.com, 2008 WL 2790211, at *3. An email generated
by the vendor might never be viewed or displayed by the
consumer and thus might never be printed even in the
No. 09-4073 11

expansive sense that Shlahtichman advocates. This leaves
Shlahtichman to argue that the vendor “prints” a receipt
simply by sending the email to the consumer. Shlahtichman
Reply at 17-18. But that too is a departure from the ordi-
nary or natural meaning of the term.
Ultimately, “[s]tatutory language only has meaning in
context,” Graham County Soil & Water Conservation Dist. v.
United States ex rel. Wilson, 545 U.S. 409, 415, 125 S. Ct. 2444,
2449 (2005), and the overall statutory context of FACTA
suggests, consistent with the ordinary meaning of the
word “print,” that the statute is aimed at paper re-
ceipts. The statute’s ban on printing more than the last
five digits of a debit or credit card or the expiration date
of the card applies to receipts that are printed and “pro-
vided to the cardholder at the point of the sale or trans-
action.” § 1681c(g)(1) (emphasis ours). This language has a
ready application to face-to-face transactions that take
place in a “bricks-and-mortar” store or some comparable
physical location at which the consumer is handed a
receipt. See GoDaddy.com, 2008 WL 2790211, at *5. Its ap-
plication to Internet purchases raises a host of questions.
Where is the point of sale for such a purchase—the con-
sumer’s computer? the vendor’s headquarters? the ven-
dor’s server? cyberspace generally? And is that the same
point at which an emailed receipt is provided to the
consumer? Assuming that these questions can be answered
in a way that comports with the statutory language, see
Ehrheart v. Bose Corp., Civ. A. No. 07-350, 2008 WL 64491,
at *4-*6 (W.D. Pa. Jan. 4, 2008) (on premise that “point
of sale or transaction” has no fixed meaning and can
refer to a time or event rather than a location, court es-
12 No. 09-4073

chews an understanding of the term as used in FACTA
that would refer to a particular physical site), a separate
subsection of section 1681c(g) points again to tradi-
tional, in-store transactions. In subsection 168c(g)(3),
Congress specified two different effective dates for the
truncation requirement: December 4, 2006, “with respect
to any cash register or other machine or device that electroni-
cally prints receipts for credit card or debit card transac-
tions that is in use before January 1, 2005,” and December 4,
2004 with respect to any such machine or device “that is
first put into use on or after January 1, 2005.” (Emphasis
ours.) The citation of the cash register as the lead
example of a machine or device used to electronically
print a receipt is consistent with the notion that Congress
meant to regulate the types of receipts that document in-
person transactions between the consumer and the mer-
chant; few terms bring to mind a store better than
“cash register.” On the other hand, scores of businesses
use the same sorts of computers to generate and print
receipts that consumers now possess in their homes, and
technological advances are fast blurring the line between
traditional cash registers and consumer-owned devices
that can perform the same functions. See, e.g., Erick
Schonfeld, Square Turns Your iPad Into A Cash Register, TECH
C RUNCH (Apr. 3, 2010), available at http://techcrunch.com/
2010/04/03/square-ipad/ (last visited Aug. 5, 2010). More
telling, perhaps, is that Congress chose to make the
effective date of the truncation requirement dependent
on the vintage of the device used to print the receipt.
See GoDaddy.com, 2008 WL 2790211, at *5; Federated Dep’t
Stores, 2008 WL 5574762, at *4. If the statute applies to
No. 09-4073 13

only those receipts that are printed on paper by a vendor
using a cash register or similar device, then the two
different effective dates comprised a workable scheme.
If, however, the statute reaches not only those receipts
that are printed by the vendor in the traditional way,
but also those that are emailed to the consumer and
displayed on the device of her choosing (personal com-
puter, smartphone, etc.), then with respect to the latter
subset of receipts, Congress made the effective date of
the truncation requirement dependent on a fact (the
date the device was first put into use) that was wholly
beyond the contemplation and control of the vendor
facing liability. Of course, that is water under the bridge
now that the later effective date has passed, but it is
implausible to think that Congress would have premised
a vendor’s liability on circumstances that were entirely
beyond its control. In short, “[t]he language of § 1681c(g)
as a whole clearly shows that the statute contemplates
transactions where receipts are physically printed using
electronic point of sale devices like electronic cash
registers or dial-up terminals.” GoDaddy.com, 2008 WL
2790211, at *6; see also Ticket Animal, 2009 WL 1035241, at *3
(“the terms ‘point of the sale’ and ‘any cash register or
other machine or device’ immediately evoke the image
of a paper receipt”); Under Armour, 593 F. Supp. 2d at
1287 (same); Zazzle.com, 589 F. Supp. 2d at 1348 (same).
The statutory language strikes us as significant not
only for the terms that it uses but for those it does not.
E-commerce was common by 2003; retail sales via the
Internet reached $56 billion in the United States that
year. U.S. Dep’t of Commerce, E-Stats: E-Commerce 2003
14 No. 09-4073

Highlights, at 4 (May 11, 2005), available at http://www.
census.gov/econ/estats/2003/2003finaltext.pdf (last vis-
ited Aug. 5, 2010). Yet the statute makes no use of
terms like “Internet” or “email” that would signal an
intent to reach paperless receipts transmitted to the
consumer via email. Elsewhere, Congress has made
explicit that it is including electronic media and transac-
tions within the scope of a statute. See, e.g., 15 U.S.C.
§ 1278(c)(1)(A) (Consumer Product Safety Improvement
Act of 2008) (“Any advertisement by a retailer, manufac-
turer, importer, distributor, or private labeler (including
advertisements on Internet websites or in catalogues or
other printed materials) that provides a direct means
for the purchase or order of a product for which a cau-
tionary statement is required under subsection (a) or (b)
shall include the appropriate cautionary statement dis-
played on or immediately adjacent to that advertise-
ment . . . .”) (emphasis ours); 15 U.S.C. §§ 7701, et seq.
(Controlling the Assault of Non-Solicited Pornography
and Marketing Act of 2003) (recognizing that “[e]lectronic
mail has become an extremely popular and important
means of communication, relied on by millions of Ameri-
cans on a daily basis for personal and commercial pur-
poses” and “offer[s] unique opportunities for the dev-
elopment and growth of frictionless commerce,”
§ 7701(a)(1), and proceeding to set forth series of require-
ments aimed at unsolicited commercial electronic mail
or “spam”); 18 U.S.C. § 2343(e)(1) (Contraband Cigarette
Trafficking Act of 1978, as amended by 2006 renewal
of Patriot Act) (defining “delivery sale” of cigarettes or
smokeless tobacco, as to which certain information must
No. 09-4073 15

be maintained as required by U.S. Attorney General, to
include sale in which “the consumer submits the order
for such sale by means of a telephone or other method
of voice transmission, the mails, or the Internet or other
online service, or by any other means where the consumer
is not in the same physical location as the seller when
the purchase or offer of sale is made”) (emphasis ours);
28 U.S.C. § 1920(2) (Judicial Administration and Technical
Amendments Act of 2008) (including within taxable
costs of litigation “[f]ees for printed or electronically
recorded transcripts necessarily obtained for use in the
case”) (emphasis ours); 42 U.S.C. § 2000aa-7 (Privacy
Protection Act of 1980) (defining “documentary mate-
rials” gathered in course of federal investigation, as to
which statute sets forth certain privacy protections, to
include “materials upon which information is recorded,
and includes, but is not limited to, written or printed
materials, photographs, motion picture films, negatives,
video tapes, audio tapes, and other mechanically,
mag[ne]tically, or electronically recorded cards, tapes, or
discs . . .”) (emphasis ours). In view of such statutory
provisions, it is reasonable to expect that Congress would
have used similar terminology had it meant to reach
electronic receipts viewed or printed by the consumer.
Under Armour, 593 F. Supp. 2d at 1287.
We recognize that section 1681c(g) was one of several
provisions in FACTA that were enacted to combat
identity theft. See Pub. L. 108-159, 117 Stat. 1952 (Dec. 4,
2003) (describing FACTA as “[a]n [a]ct [t]o amend the
Fair Credit Reporting Act, to prevent identity theft,
improve resolution of consumer disputes, improve the
16 No. 09-4073

accuracy of consumer records, make improvements in
the use of, and consumer access to, credit information,
and for other purposes”) (emphasis ours). Applying
FACTA’s truncation requirements to electronic as well
as printed receipts would no doubt be consistent with
that purpose, Active Network, 2009 WL 2916838, at *2;
Best Buy, 254 F.R.D. at 87; 1-800-Flowers, 2008 WL 343179,
at *3; StubHub, 2007 U.S. Dist. LEXIS 63719, at *8-*9,
although as we note below, there are other statutes that
address the integrity of electronic communications. But
we may not ignore the unambiguous language of the
statute in order to further Congress’s expressed purpose
in enacting the statute. Morrison v. Nat’l Australia Bank
Ltd., 130 S. Ct. 2869, 2886 (2010) (“It is our function to
give the statute the effect its language suggests, however
modest that may be; not to extend it to admirable pur-
poses it might be used to achieve.”); see also, e.g., Carr v.
United States, 130 S. Ct. 2229, 2241 (2010) (citing Mertens
v. Hewitt Assocs., 508 U.S. 248, 261, 113 S. Ct. 2063,
2071(1993)). Both the language and context of the trunca-
tion requirement make plain that Congress was regu-
lating only those receipts physically printed by the
vendor at the point of the sale or transaction; to apply
the statute to receipts that are emailed to the consumer
would broaden the statute’s reach beyond the words
that Congress actually used.3

3
We need not explore FACTA’s legislative history in view of
the unambiguous terms of the statute. E.g., Boyle v. United
States, 129 S. Ct. 2237, 2246-47 (2009). We do, however, note
(continued...)
No. 09-4073 17

Our construction of the statute does not produce
absurd results. Although electronic receipts may also be
misappropriated by identity thieves, one might rea-
sonably believe that paper receipts pose unique, if not
greater, dangers in that regard. A paper receipt produced
at the point of sale or transaction may be dropped, mislaid,
or discarded by the consumer in any number of public
places where it easily can be retrieved and put to nefarious
use by others. An electronic receipt, by contrast, to the
extent it is viewed on the consumer’s own computer or
other digital device at a time and place of his choosing
(including his home or office), is arguably less subject
to inadvertent disclosure and theft. Under Armour, 593
F. Supp. 2d at 1288. To be sure, there may be someone
looking over the consumer’s shoulder when he views
an email in a public place, and emails and other
electronic data can be accessed without authorization
(“hacked”) at both the consumer’s and the vendor’s end
of things. See, e.g., Active Network, 2009 WL 2916838, at
*2. But Congress might have thought that the misappro-
priation of electronic data was better addressed by
other statutory provisions that specifically deal with the
privacy and misuse of such data. See, e.g., 18 U.S.C.
§ 1028(c)(3)(A) (Identity Theft and Deterrence Act of
1998, as amended by Internet False Identification Preven-
tion At of 2000) (criminalizing the knowing production,
transfer, possession, use, or sale of stolen or forged iden-

3
(...continued)
that neither party in this case nor any court addressing the
reach of section 1681c(g)(1) has cited any legislative history
that conflicts with our understanding of the statute.
18 No. 09-4073

tification documents in or affecting interstate or foreign
commerce, “including the transfer of a document by
electronic means”); 18 U.S.C. § 1030(a)(4) (Computer
Fraud and Abuse Act of 1986) (criminalizing the unautho-
rized access of a computer owned by government or
financial institution, or which is used in interstate or
foreign commerce, with intent to defraud); 18 U.S.C.
§ 2511(1)(a) (Electronic Communications Privacy Act of
1986) (criminalizing unauthorized interception of elec-
tronic communications); 18 U.S.C. §§ 2701, 2707 (Stored
Communications Act, enacted as part of Electronic Com-
munications Privacy Act of 1986) (authorizing suit for
damages by victim of unauthorized, intentional access
to communications held in electronic storage).
Shlahtichman makes a belated argument that construing
the truncation provision not to apply to email receipts
is inconsistent with the FCRA’s preemption provision,
15 U.S.C. § 1681t(b). That provision forecloses regulation
by the States of any conduct regulated by the individual
provisions of the statute, including the truncation provi-
sion. See § 1681t(b)(5)(A). Shlahtichman reasons that
if email receipts are not covered by the federal statute,
then States will be free to impose their own truncation
requirements on email receipts, producing the very crazy
quilt of State laws that FCRA’s preemption provision
was meant to avoid. But Shlahtichman forfeited this
argument by failing to make it in the district court, e.g.,
Ocean Atlantic Dev. Corp. v. Aurora Christian Schools, Inc.,
322 F.3d 983, 1005 (7th Cir. 2003), and this is not one of
the rare civil cases in which we might overlook the forfei-
ture, see Russian Media Group, LLC v. Cable Am., Inc.,
598 F.3d 302, 308 (7th Cir. 2010).
No. 09-4073 19

We note finally that even if we have construed the
statute too narrowly, dismissal of Shlahtichman’s com-
plaint was nevertheless appropriate because 1-800 Con-
tacts did not willfully violate the statute. Shlahtichman
has alleged no actual injury, see § 1681o(a)(1), and has
instead sought the statutory damages that are authorized
for willful violations of the truncation requirement, see
§ 1681n(a)(1)(A). Like this court, 1-800 Contacts has
construed the truncation requirement not to apply to
email receipts. To date, there has been no contrary
opinion from a court of appeals or federal agency sug-
gesting that the company’s understanding of the statute
is wrong; and even if its construction of the statute
turns out to be mistaken, it is objectively reasonable
nonetheless for all of the reasons we have discussed.
Consequently, if 1-800 Contacts did violate the statute
by including the expiration date of Shlahtichman’s credit
card in the receipt it emailed to him, it did not do so
knowingly or recklessly. See Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47, 69-70 & n.20, 127 S. Ct. 2201, 2215-16 & n.20
(2007); Levine v. World Fin. Network Nat’l Bank, 554 F.3d
1314, 1319 (11th Cir. 2009) (“Safeco makes clear that evi-
dence of subjective bad faith cannot support ‘a will-
fulness finding . . . when the company’s reading of the
statute is objectively reasonable’ ”); Movietickets.com, 555
F. Supp. 2d at 1342-43.
For all of these reasons, we A FFIRM the district court’s
judgment.

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