Seventh Circuit addresses Spokeo standing issue in FACTA case

Since the Supreme Court’s ruling earlier this year in Spokeo, Inc. v. Robins, federal courts nationally have issued varying decisions analyzing the alleged injuries that a plaintiff must plead to pursue claims under statutes such as the Fair Credit Reporting Act, Telephone Consumer Protection Act and Fair Debt Collection Practices Act. Recently, the United States Court of Appeals for the Seventh Circuit applied Spokeo to determine whether a plaintiff had sufficiently alleged injuries to justify his standing to litigate a putative class action under the Fair and Accurate Credit Transactions Act (FACTA). In the first federal appellate ruling to address the question of standing in FACTA cases after Spokeo, the Seventh Circuit found that the plaintiff had not pled sufficient injury to avoid the dismissal of his suit. Meyers v. Nicolet Restaurant of De Pere, LLC, No. 16-2075 (7th Cir. Dec. 13, 2016).
FACTA was enacted as an amendment to the Fair Credit Reporting Act to reduce the amount of information produced on credit and debit card receipts. It prescribes that any person that accepts credit or debit cards for business transactions shall print no more than the card number’s last five digits or the expiration date upon any receipt provided to the cardholder. Each willful violation entitles consumers to recover either actual damages sustained because of the violation or statutory damages between $100 and $1,000.
The plaintiff alleged that he was given a copy of a receipt after dining at the defendant’s restaurant that did not truncate his card’s expiration date. He filed a putative class action on behalf of himself and others who had received a non-compliant receipt from the defendant. Plaintiff did not allege any actual injury caused from the transaction and sought only FACTA’s statutory damages.
The Seventh Circuit reversed a trial court’s determination that the plaintiff had pled sufficient standing to pursue the FACTA claims. Citing to Spokeo, the Seventh Circuit stated that the Supreme Court concluded that a concrete injury is required even in the context of a statutory violation. The appellate court stated “Congress’s judgment that there should be a legal remedy for a violation of a statute does not mean each statutory violation creates [an injury to have standing to sue].” Focusing on the plaintiff’s allegations, the Seventh Circuit stressed that he did not show any damages due to the printing of his card’s expiration date on his receipt, nor has the FACTA violation created any appreciable risk of harm. Plaintiff saw immediately that the receipt improperly printed the expiration date, and nobody else has ever seen the non-compliant receipt. "In these circumstances, it is hard to imagine how the expiration date’s presence could have increased the risk that [plaintiff’s] identity would be compromised.”
We will continue to analyze and report on the developing federal case law concerning what plaintiffs must allege to show standing to litigate statutory privacy claims.