Ahead of the Class

The Seventh Circuit has issued the first opinion of a federal court of appeals addressing, under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), whether a plaintiff has standing to sue under the Fair and Accurate Credit Transactions Act, 15 U.S.C. § 1681 et seq. (“FACTA”), when the only alleged “injury” is getting a receipt for a credit or debit card transaction that contains the card’s expiration date printed on it.  In Meyers v. Nicolet Restaurant of De Pere, LLC, No. 16-2075, 2016 WL 7217581 (7th Cir. Dec. 13, 2016), the court ruled that without more than just a non-compliant receipt, a plaintiff has not suffered the “concrete harm” required for Article III standing under Spokeo.   Meyers, 2016 WL 7217581, at *1.  The Seventh Circuit directed the district court to dismiss the case for lack of federal jurisdiction because the plaintiff had no standing to bring it.

FACTA amended the Fair Credit Reporting Act (“FCRA”) in 2003, and makes it unlawful to give a consumer a credit or debit card receipt with more than the last five digits of the card’s account number or the card’s expiration date printed on it.  In cases of “willful” violation of the FCRA – “willful” is not defined in the statute – a prevailing consumer can recover statutory damages of $100 to $1000, plus attorneys’ fees.  FACTA cases asserting willful violations are usually brought as class actions, which means that damages can be extremely large when there are large numbers of class members and transactions.

The potential for such damages has made FACTA class actions attractive to the plaintiffs’ bar, with hundreds of cases filed around a decade ago when businesses were transitioning payment systems to comply with FACTA’s limitations on account numbers and expiration dates.  At that time, district courts addressing standing generally ruled that the provision of a non-compliant receipt gave the plaintiff standing to sue.  While the frequency of FACTA class actions has diminished over the years, FACTA complaints continue to be filed.  And since the Supreme Court’s decision in Spokeo, standing to bring statutory damages claims under FACTA has become an increasingly contested issue in district courts.

In Meyers, the defendant restaurant gave the plaintiff a receipt containing his credit card’s expiration date.  The plaintiff noticed that and in April 2015 brought a class action in which he sought to represent all persons to whom the defendant gave a non-compliant receipt.  The plaintiff sought only statutory damages, and conceded that he had suffered no untoward consequences as a result of getting the receipt.  Meyers, 2016 WL 7217581, at *3 n.2 (“Even at argument, Meyers would not say that Nicolet’s violation had caused him any concrete harm. He staked his entire standing argument on the statute’s grant of a substantive right to receive a compliant receipt.”).

Meyers moved for class certification, which the U.S. District Court for the Eastern District of Wisconsin denied on April 1, 2016.  The district court found that Meyers satisfied each of the four requirements of Rule 23(a) of the Federal Rules of Civil Procedure – numerosity, commonality, typicality, and adequacy of representation – but that he failed to show that common questions predominated over individual questions and that a class action was a superior method of adjudication as required by Rule 23(b)(3).  Common questions did not predominate because whether each class member actually was provided with a receipt was a question of fact individual to each class member.  The defendant would have the right to cross-examine each class member on this element of a FACTA claim, which would make individual questions predominate and render a class action unmanageable. Meyers v. Nicolet Restaurant of de Pere, LLC, No. 2016 WL 1275046, at *7-8 (E.D. Wis. Apr. 1, 2016).

The Seventh Circuit granted review of the denial of class certification under Rule 23(f) on May 5, 2016.  Subsequently, the Supreme Court, on May 16, 2016, issued its opinion in Spokeo, in which the Court reiterated that “concrete injury” is an indispensable prerequisite to standing under Article III’s case-or-controversy requirement. Spokeo, 136 S. Ct. at 1546. The Seventh Circuit, determining that Meyers lacked standing, did not reach the question whether the district court erred in denying class certification.

Rather, the Seventh Circuit’s ruling turned on Meyer’s failure to show that the mere provision of the non-compliant receipt caused him any actual harm or any material risk that he would be harmed.  As the court explained:

The allegations demonstrate that Meyers did not suffer any harm because of Nicolet’s printing of the expiration date on his receipt. Nor has the violation created any appreciable risk of harm. After all, Meyers discovered the violation immediately and nobody else ever saw the non‐compliant receipt. In these circumstances, it is hard to imagine how the expiration date’s presence could have increased the risk that Meyers’ identity would be compromised.

Meyers, 2016 WL 7217581, at *3.  In short, “[a] violation of a statute that causes no harm does not trigger a federal case. That is one of the lessons of Spokeo.”  Id. at *3 n. 2.

With its ruling in Meyers, the Seventh Circuit joins a growing number of Courts of Appeals that have found that statutory violations with no showing of “concrete injury” do not raise a case or controversy under Article III.  See Hancock v. Urban Outfitters, Inc., 830 F.3d 511 (D.C. Cir. 2016); Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 930‒31 (8th Cir. 2016); Nicklaw v. Citimortgage, Inc., 839 F.3d 998, 1002–03 (11th Cir. 2016) (cited in Meyers, 2016 WL 7217581, at *3).  By ruling that plaintiffs do not have standing to bring FACTA claims based solely on being given a non-compliant receipt, Meyers breaks new ground in the continuing development of the case law on standing after Spokeo.