This week, in Meyers v. Nicolet Rest. of de Pere, LLC, No. 16-2075 (7th Cir. Dec. 13, 2016), the Seventh Circuit narrowed standing to bring lawsuits under the Fair and Accurate Credit Transactions Act (FACTA) in holding that plaintiff’s allegation that defendant failed to truncate credit card expiration dates properly on its receipts in violation of FACTA was, on its own, insufficient to establish Article III standing. Plaintiff’s allegation of a statutory violation without alleging how that violation injured him failed to establish the concrete injury or harm required by Spokeo v. Robins.
The Fair and Accurate Credit Transactions Act
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 5 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
On February 10, 2015, after receiving a copy of his receipt from Nicolet Restaurant of de Pere (“Nicolet Restaurant”), Jeremy Meyers noticed that the receipt did not truncate the expiration date of his credit card, as required by FACTA. Two months later, Meyers filed a putative class action complaint purportedly on behalf of all individuals who had received non-FACTA compliant receipts at Nicolet Restaurant seeking statutory damages for the violation.1
The district court denied Meyer’s motion for class certification, finding that Meyers had failed to establish that class-wide issues would “predominate” over issues affecting only individual potential class members. See Meyers v. Nicolet Rest. Of de Pere, LLC, No. 15-C-444, 2016 WL 1275046, at *7 (E.D. Wis. Apr. 1, 2016).
Seventh Circuit Decision
The Seventh Circuit did not address the class certification question raised by the district court. Instead, in Meyers v. Nicolet Rest. of de Pere, LLC, No. 16-2075 (7th Cir. Dec. 13, 2016), the Seventh Circuit vacated the district court’s order and remanded the case with instructions to dismiss, concluding that Meyers’ allegation of a technical violation of FACTA, without more, failed to allege a concrete and actual injury sufficient to confer standing.
The Seventh Circuit began its analysis by observing the Supreme Court’s holding in Spokeo v. Robins, 136 S.Ct. 1540, 1549 (2016) that “Article III standing requires a concrete injury even in the context of a statutory violation.” The Seventh Circuit noted that “Congress’ judgment that there should be a legal remedy for a violation of a statute does not mean each statutory violation creates an Article III injury” and that such an injury “must actually exist.” Meyers, No. 16-2075, at *6 (quotation and citation omitted).
Turning to the factual allegations of the case before it, the Seventh Circuit found that Meyers had fallen short of the Spokeo standard and failed to allege any harm, or even any “appreciable risk of harm” arising from Nicolet Restaurant’s printing the expiration date of his credit card on his receipt. Id. Instead, Meyers had only alleged statutory violation without any actual injury resulting from that violation. The Court observed that it was “hard to imagine” how the expiration date’s presence on the receipt could have increased the risk of identity theft and, indeed, Congress had specifically declared that failure to truncate a credit card’s expiration date, without more, did not heighten such a risk. Id. at *6-7. The Court further observed that Congress had expressed concern that FACTA could be abused and sought to limit FACTA lawsuits to only those consumers “suffering from any actual harm.” Id. at *7 (citation omitted).
In finding that Meyers lacked standing to bring a lawsuit under FACTA, the Seventh Circuit noted that it was acting in accord with the other Circuit Courts that had also addressed similar statutory injury cases. The Second, Fifth, Eighth, Eleventh and D.C. Circuit Courts of Appeals had all found that plaintiffs lacked Article III standing where they alleged statutory violations but no injuries or harms caused by or flowing from those violations. Accordingly, the Seventh Circuit held that “the violation of a statute, completely divorced from any potential real-world harm” is not sufficient to satisfy Article III’s injury-in-fact requirement.
Takeaways
The implications of Nicolet Restaurants are significant at least as to pleading claims under FACTA. The decision further reinforces the limitations on Article III standing imposed by Spokeo on statutory injury cases and provides defendants in privacy lawsuits with additional ammunition to challenge complaints that are premised solely on a violation of a statutory right. Unless they can allege “potential real-world harm” caused by a statutory violation, plaintiffs in the Seventh Circuit will find Meyers to be a roadblock at the pleading stage.
1Meyers had brought another putative class action alleging the same facts. The Seventh Circuit denied certification of the putative class on grounds that Nicolet Restaurant, which is owned by the Oneida Tribe of Wisconsin, possessed sovereign immunity in Meyers v. Oneida Tribe of Indians of Wis., 836 F.3d 818 (7th Cir. 2016).