United States: Appellate Court Joins Growing Chorus Finding That Procedural FACTA Violations On Their Own Are Insufficient For Standing

In keeping with its recent decision in Bassett v. ABM Parking Services, the U.S. Court of Appeals for the Ninth Circuit held in Noble v. Nevada Checker Cab (March 9, 2018) that alleged procedural violations of the Fair and Accurate Credit Transactions Act, such as the inclusion of a credit card's first digit on a receipt, were insufficient to constitute a concrete injury sufficient for Article III standing absent some other allegation of harm. Thus far, every circuit court that has addressed allegations of technical FACTA violations unaccompanied by actual injuries has found that these violations do not establish standing.

The Fair and Accurate Credit Transactions Act

The FACTA was a 2003 amendment to the Fair Credit Reporting Act and provides that "no person that accepts credit cards or debit cards for the transaction of business shall print more than the last five digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction." 15 U.S.C. 1681c(g)(1). Willful noncompliance with FACTA entitles consumers to "any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000." 15 U.S.C. 1681n(a)(1)(A).

Background

The plaintiffs filed a putative class action complaint against Nevada Checker Cab and other taxi companies, alleging that these companies had violated the FACTA by providing receipts that contain the first digit as well as the last five digits of the cardholder's credit card number. The plaintiffs did not allege that the receipts were given to anyone other than the cardholder customers. The district court dismissed the complaint, finding that the plaintiffs lacked standing.

Ninth Circuit Decision

The Ninth Circuit affirmed, finding that the plaintiffs had failed to allege a concrete injury sufficient for Article III standing. 

Citing Spokeo v. Robins (2016), the Ninth Circuit explained that Article III standing required that a plaintiff allege a "concrete and particularized" injury, which may be intangible, in the context of statutory violations and not simply a "bare procedural violation, divorced from any concrete harm." 

The court referenced its recent decision in Bassett v. ABM Parking Services, where it held that the alleged inclusion of a credit card's expiration date on a receipt in violation of the FACTA without an actual injury did not constitute a concrete injury adequate to warrant Article III standing. In particular, the court noted that Bassett "did not allege that another copy of the receipt existed, that his receipt was lost or stolen, that he was the victim of identity theft, or even that another person apart from his lawyers viewed the receipt." In addition, the court observed that Bassett could not even allege that "any risk of harm is real,... given that he could shred the offending receipt along with any remaining risk of disclosure."

The Ninth Circuit found that, like Bassett, the plaintiffs in the present case had not alleged a concrete injury as they failed to allege that "anyone else had received or would receive a copy of their credit card receipts." Moreover, the court also found that the first digit of a credit card number which only identifies the card issuer was not the sort of "information that Congress determined could lead to identity theft," and, therefore, "Congress ha[d] not prohibited printing the identity of the credit card issuer along with the last five digits of the credit card number." 

Takeaways

Beginning with Bassett and continuing now with Noble, the Ninth Circuit has decisively joined the ranks of circuit courts that have clarified and strengthened the limitations on Article III standing imposed by Spokeo in statutory violation cases, particularly those involving FACTA.  Coupled with the Second Circuit in Crupar-Weinmann v. Paris Baguette America, and Katz v. Donna Karan Company and Seventh Circuit in Meyers v. Nicolet Restaurant of De Pere, Noble narrows standing to bring cases premised strictly on procedural violations of the FACTA. The plaintiffs in the Second, Seventh and Ninth Circuits must allege actual injuries, such as financial losses due to identity theft, to satisfy the requirements of Article III and survive a motion to dismiss for lack of standing. Read our recent analysis of the circuit split on this topic in " Appellate Court Finds Risk of Identity Theft Sufficient to Establish Standing, Circuit Split Worsens."​​​

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