A district judge in the Southern District of Florida recently dismissed a FACTA class action on Spokeo grounds even though he had previously approved a near-$600,000 settlement in the same case. In 2016, lead plaintiff Eric Kirchein filed suit against Pet Supermarket, Inc, contending that the retailer violated the Fair and Accurate Credit Transactions Act ("FACTA") when it printed more than five digits of his and other consumers' credit card numbers on sales receipts. The parties reached a preliminary settlement agreement later that year, with Pet Supermarket agreeing to pay $580,000 to a class of almost 30,000 consumers.
The deal ran into trouble soon thereafter, as the parties had difficulty finding and locating individual class members. Further complicating matters, the size of the class increased, as Pet Supermarket discovered the class was approximately ten percent larger than initially thought. Plaintiffs' counsel requested additional settlement funds to compensate for the additional class members, leading the parties to try to renegotiate the settlement. Despite these issues, the court declined requests to vacate the settlement agreement.
Even though the parties had an agreement in principal, Pet Supermarket later challenged the court's subject matter jurisdiction based on Spokeo grounds. The court agreed with the retailer that Kirchein could not show he had suffered concrete harm resulting from the alleged FACTA violation. Judge Robert N. Scola, Jr. chiefly relied on his own previous decisions in similar FACTA cases – specifically Gesten v. Burger King, which found that the plaintiff failed to allege that any disclosure of his private information actually occurred – to reach a similar conclusion regarding Kirchein's claims. Without any allegation that his private data had been divulged, the court found that Kirchein could not establish standing.
Though the court acknowledged that there was "substantive work that remains to be done" in the case, the absence of subject matter jurisdiction prevented further activity by the court, including a fairness hearing or issuing an order approving the proposed settlement agreement.
The case is Kirchein v. Pet Supermarket, Inc., Case No. 0:16-cv-60090.
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