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Chiropractor, Once Convicted Of Fraud, Targets Cheesecake Factory With His Latest Class Action

Forbes, March 2, 2017

By: John O'Brien and Chandra Lye

A well-known restaurant chain has been accused of putting customers' private information at risk by a chiropractor who once pleaded guilty to defrauding the government and has recently used a Florida federal court to file several class action lawsuits over receipts and faxes.

Dr. David Muransky, of Broward County, FL, is working on his second individual class action lawsuit while a settlement in the first that would pay him $10,000 and his lawyers $2.1 million is fought by fellow class members.

Also, Aventura Chiropractic Care Center filed four class actions of its own over faxes it received while Muransky was listed on business records as the company's president.

Most recently, Muransky apparently opened a new practice in Cooper City, FL, then filed a class action lawsuit against the Cheesecake Factory in U.S. District Court for the Southern District of Florida on Jan. 30, claiming it has violated a federal law with its receipt policy.

Muransky alleges that the restaurant gives out receipts that have sensitive customer information on them. The accusation falls under the Fair and Accurate Credit Transactions Act (FACTA) of 2003.

The complaint came after Muransky allegedly received a receipt on Jan. 22 that contained too much of his credit card information. The complaint specifically states that the receipts from the Cheesecake Factory contain the first six digits of their cards and the last four digits. The plaintiff argues that this puts customers at risk for identity theft.

A spokesperson for the restaurant said it is planning to exhibit a strong defense.

“We are aware of the complaint filed by Mr. Muransky. We intend to vigorously defend against this complaint but are not able to comment specifically regarding this matter due to the pending litigation,” Alethea Rowe, senior director, public relations for the Cheesecake Factory Inc. told Legal Newsline in a written statement.

Muransky is represented by Keogh Law in Chicago, Brett Luskin of Aventura, FL, and Scott D. Owens of Hollywood, FL.

They are the same attorneys who are representing Muransky in a class action lawsuit against Godiva Chocolates that makes similar receipt allegations. It was filed in April 2015.

The $6.3 million proposed settlement in the case has drawn objections, though, after it was approved in September by Judge William Dimitrouleas.

Two such class members have taken their fight against the settlement to the U.S. Court of Appeals for the 11th Circuit.

Class member Eric Alan Isaacson, a class action plaintiffs lawyer, objects to the $10,000 incentive payment proposed to Muransky for his role as lead plaintiff. He noted that his class action was filed within a week of receiving his receipt from a Godiva store in Aventura.

He also says Muransky is not an adequate class representative because of a previous fraud conviction. Muransky was accused of charging Medicaid for spinal manipulations he never performed, though the amount in question was a relatively small sum - $245.

"I mean the whole thing was a joke," Muransky said in a deposition for another case, filed by Aventura Chiropractic Care. "The other offices were changing dates and doing wrong things.

"I didn't do anything wrong... They disregarded my testimony. So yes I'm still angry."

The FBI investigation into Muransky's billing practices began in 1984. He pleaded guilty in 1989 and was sentenced to three years probation and restricted from the Medicare and Medicaid systems for five years.

Aventura Chiropractic Care Center has filed four class actions under the Telephone Consumer Protection Act, alleging faxes it received do not include an opt-out clause required by the law.

Aventura used different lawyers for those claims - Anderson + Wanca of Rolling Meadows, IL, is listed on all four, and Cohen Milstein's Palm Beach Gardens, FL, is listed on one, as is Mracheck Fitzgerald of West Palm Beach, FL.

Addison & Howard, of Tampa, FL, also represented Aventura on one of its cases.

As for Muransky's Godiva case, Isaacson said he received a notice that he would be eligible to receive $235 from the Godiva settlement and believes Muransky's attorneys settled the case for a fraction of what they were seeking to avoid the fallout from the U.S. Supreme Court's 2016Spokeo decision, which requires a plaintiff to show concrete and particularized harm.

Fellow objector James Price took issue with the amount Muransky's attorneys stand to make in a class action in which a motion for class certification was never submitted.

"A lawyer who recovers a common fund for a class is justly entitled to reasonable attorneys' fees and expenses," Price's brief to the 11th Circuit, filed Feb. 22, says.

"Here, however, the substantial size of the award vastly over-compensates Class Counsel, especially considering the little work they performed, the abbreviated time-span of the litigation, and the minor, if any, risks they took."

Price says Muransky's attorneys filed only three substantive documents over the short life of the case - the complaint, an amended complaint and a response to a motion to dismiss. He says they only attained a "mediocre result" for class members.

Muransky's lawyers will soon file response briefs with the 11th Circuit. They have argued in the district court that the objectors should have to pay a large bond while the appeal is heard.

Instead, the court turned down the $115,934 figure requested. The objectors were ordered to pay only a $2,500 bond.

A class action plaintiffs attorney based in California said the Cheesecake Factory lawsuit seems straightforward.

“Based on the allegations in the complaint, this seems like a fairly typical FACTA claim,” Aaron Blumenthal of Girard Gibbs told Legal Newsline.“The particular legislation that they are suing under was designed to ensure that all businesses are complying with the law and truncating credit card numbers so that the full credit card numbers are not appearing on receipts.”

Blumenthal explained that FACTA had been enacted to ensure that vendors were truncating credit card numbers.

“There was a concern at the time that fraudsters were going dumpster diving at restaurants to find old receipts and if all the credit card numbers were appearing on the receipts that made it quite easy for fraudsters, so that is why the litigation was enacted,” he said.