Ahead of the Class

This post was co-authored by Erin A. Novak and John G. Papianou of Montgomery McCracken.

Until last week, certain district courts in the Eleventh Circuit were the only place left for class action plaintiffs to pursue run-of-the-mill statutory damage claims for failure to properly truncate credit card numbers under the Fair and Accurate Credit Transactions Act (“FACTA”).  Over the past year, virtually every federal court to decide this issue—including two Courts of Appeals—has held that plaintiffs lack standing to pursue these claims because they’ve suffered no concrete harm.  But now district courts in the Eleventh Circuit may be getting on board too.

Last week, Judge Scola in the Southern District of Florida dismissed Gesten v. Burger King Corporation, No. 1:17-cv-22541-RNS (S.D. Fla. Sept. 27, 2017), for lack of standing.  In Gesten, a Burger King customer claimed his credit card receipt displayed the first six digits and last four digits of his credit card number, more than the last five digits FACTA allows.  Relying on Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the court rejected his contention that the receipt exposed him to a heightened risk of identity theft or credit card fraud.  He retained the receipt, and the first six digits displayed were publicly available information that merely identified the issuing bank anyway, so he alleged no material risk of harm.

Judge Scola’s decision marks a significant departure from other district courts in the Eleventh Circuit, where over the past year and a half, five FACTA cases have survived motions to dismiss for lack of standing.  So what changed?

Gesten comes on the heels of two influential Second Circuit decisions:  Katz v. Donna Karan Company, LLC, 2017 WL 4126942 (2d Cir. Sept. 19, 2017), and Crupar‐Weinmann v. Paris Baguette Am., Inc., 861 F.3d 76 (2d Cir. June 26, 2017).  In those cases, the Second Circuit found that printing the first six digits of a credit card number (Katz) or the card’s expiration date (Crupar-Weinmann) presents no material risk of harm, particularly where the receipt is not alleged to have ended up in the hands of someone looking to steal an identity or commit fraud, and thus affirmed the Southern District of New York’s dismissal. On December 13, 2016, the Seventh Circuit had likewise found no standing where a restaurant’s receipts disclosed the expiration date.  Meyers v. Nicolet Restaurant of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016).

The change likely came because the earlier district court opinions rest on outdated authority.  Judge Scola noted that they relied heavily on an unpublished Eleventh Circuit decision in a Fair Debt Collection Practices Act case, Church v. Accretive Health, Inc., 654 F. App’x 990 (11th Cir. July 6, 2016).  That decision pre-dates the Eleventh Circuit’s precedential decision in Nicklaw v. Citimortgage, Inc., 839 F.3d 998 (11th Cir. Oct. 6, 2016), where the court held, as it must under Spokeo, that the violation of a statute, without more, does not automatically constitute harm.  Judge Scola also noted that the earlier district court cases relied on an Eighth Circuit decision—Hammer v. Sam’s East, Inc., 754 F.3d 492 (8th Cir. 2014)—that Spokeo effectively overruled.

Whatever precipitated the change, Gesten reflects a fundamental shift away from the generous reading of Spokeo Eleventh Circuit plaintiffs have so far enjoyed.  Mr. Gesten will likely appeal, so the Eleventh Circuit will soon weigh in.  If it joins the Second and the Seventh Circuits, the once frenzied world of FACTA litigation may soon come to a close.