On October 4, the Eleventh Circuit agreed to review en banc a panel decision holding that a consumer’s heightened risk of identity theft is enough to establish Article III standing.

• Named plaintiff David Muransky filed a putative class action against Godiva Chocolatier, alleging that the chocolate maker printed 10 digits of his credit card number on his receipt in violation of the Fair and Accurate Credit Transactions Act (“FACTA”).
• Godiva admitted that it knew of 342,025 noncompliant receipts—which, with FACTA statutory damages ranging from $100 to $1,000, could have resulted in several hundred million dollars in potential exposure even though there was no evidence that the FACTA violation caused any measurable economic harm to any plaintiff.
• Several months after the lawsuit was filed, the plaintiff moved for approval of a class action settlement of $6.3 million. After the district court approved the settlement, several objectors appealed, arguing, among other things, that the named plaintiff lacked standing to pursue the action.
• In affirming the district court on appeal, a three-judge panel of the Eleventh Circuit held that the named plaintiff had suffered a sufficiently concrete injury to confer Article III standing under Spokeo because the improper printing of his credit card number created a heightened risk that his identify would be stolen.
• In April 2019, that same three-judge panel sua sponte revisited its standing decision, but held again that the heightened risk of identity theft was a sufficient injury to confer Article III standing, comparing the plaintiff’s harm to that suffered under the common law tort of breach of confidence.
• Muransky created a circuit split concerning the type of injury a FACTA plaintiff must allege to establish standing under Article III. In Kamal v. J. Crew Group, Inc., 918 F.3d 102 (3d Cir. 2019), for example, the Third Circuit held that a FACTA plaintiff must have suffered actual identity theft to satisfy Article III. The Eleventh Circuit’s reasoning is also arguably at odds with opinions issued by the Second, Seventh, and Ninth Circuits.
• On October 4, the Eleventh Circuit voted to vacate the panel’s decision and granted a rehearing en banc to revisit the panel’s holding. Read the Eleventh Circuit panel’s April 2019 decision here.