On December 13, 2016, the U.S. Court of Appeals for the Seventh Circuit issued an opinion in Jeremy Meyers v. Nicolet Restaurant of De Pere, LLC, __ F. 3d __, No. 16-2075, holding that the named plaintiff in a proposed class action brought under the Fair and Accurate Credit Transactions Act (“FACTA”) failed to establish Article III standing.  The court applied the U.S. Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), and joined a lengthening line of post-Spokeo decisions from federal courts of appeals that have held that a defendant’s mere violation of a statute, without accompanying actual, concrete injury, is insufficient to establish standing under Article III of the Constitution.

The action arose when Meyers received a printed receipt from the defendant restaurant that did not truncate his payment card’s expiration date, as FACTA requires.  (Meyers, slip op. at 2.) Meyers brought suit on behalf of himself and others similarly situated.  The U.S. District Court for the Eastern District of Wisconsin denied Meyers’ motion for class certification, and Meyers appealed to the Seventh Circuit. (Id. at 3.)

Without addressing the class certification issue, the court held that Meyers lacked Article III standing.  Quoting Spokeo’s admonition that “concrete injury is required ‘even in the context of a statutory violation’” (id. at 5 (quoting Spokeo, 136 S. Ct. at 1549)), the court analogized Meyers’ receipt to the Supreme Court’s hypothetical, in Spokeo, of an incorrectly-reported zip code. Without alleging an actual harm of the kind FACTA was intended to address (that is, an actual risk of identity theft), the Court determined that Meyers had no standing to maintain his action. (Id. at 7.)

When the Supreme Court decided Spokeo, some observers suggested that the opinion did not represent an across-the-board victory for defendants in statutory violation cases.  In the seven months since the issuance of Spokeo, however, the federal courts of appeals consistently have found a lack of standing in privacy and other statutory claims.  (See Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 514 (D.C. Cir. 2016) (District of Columbia consumer protection statute); Lee v. Verizon Comms., Inc., 837 F.3d 523, 529-30 (5th Cir. 2016) (ERISA); Braitberg v. Charter Comms., Inc., 836 F.3d 925, 930-31 (8th Cir. 2016) (Cable Communications Policy Act); Nicklaw v. Citimortgage, Inc., 839 F.3d 998, 1102-03 (11th Cir. 2016) (state satisfaction-of-mortgage statute).)  With the Meyers opinion, the Seventh Circuit now joins these other circuit courts in strictly applying the Spokeo ruling.

Taken together, these decisions and Meyers reinforce Spokeo’s holding that a violation of a statute, without more, may not be sufficient to grant standing, and suggest that plaintiffs who cannot show specific facts supporting their particularized injuries will face a steeper path to reach a jury.  This fact-based requirement, in turn, will likely hinder class certifications, which may be unable to show that issues common to the entire class still “predominate over” these individualized facts. (Fed. R. Civ. Pro. 23(b)(3).)

For a copy of the court’s decision, please click here.