Fifth Third Bancorp plans to ask the full 3RD U.S. Court of Appeals in Philadelphia to review a recent ruling by a three-judge panel from the court that would open the door for card issuers to seek damages from third-party processors for costs of merchant-data breaches. Pennsylvania State Employees Credit Union and Sovereign Bank both filed suit against BJ's Wholesale Club Inc. and Fifth Third seeking reimbursement for the costs of reissuing cards compromised in a data beach at BJ's in 2004. Fifth Third was the merchant acquirer for the Natick, Mass.-based chain when the breach occurred. The issuers charge Fifth Third was responsible for BJ's failure to comply with Visa USA operating rules that bar merchants from retaining credit card data after completing transactions. A Massachusetts District Court dismissed the issuers' suit against Fifth Third, but July 16 the appeals-court panel unanimously reversed the ruling and sent the case back to the district court. Fifth Third's lawyers immediately petitioned the appeals court for a review of the July 16 ruling. If accepted, all nine judges of the appeals court would review the panel's ruling. Last week, the court granted Fifth Third an extension, until Aug. 15, to file a petition for the review.

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