On January 5, 2018, the United States District Court for the Southern District of Florida (the “Court”) granted the defendant’s motion to dismiss in a Fair and Accurate Credit Transaction Act (“FACTA”) case because the plaintiff failed to allege a concrete injury.

Section 1681c(g)(1) of FACTA prohibits merchants from printing “more than the last 5 digits of the card number . . . upon any receipt provided to the cardholder at the point of the sale or transaction.” In Tarr v. Burger King, the plaintiff — Andrew Tarr — alleged that Burger King violated FACTA. According to the plaintiff, on at least two occasions when he purchased goods at Burger King with his debit card, the company printed a receipt that displayed the first six digits and last four digits of his debit card number.

Burger King responded with a motion to dismiss. The company argued that the district court lacked subject matter jurisdiction over the dispute because the plaintiff lacked Article III standing. According to Burger King, the plaintiff lacked Article III standing because the plaintiff had failed to allege a concrete injury. The plaintiff contended that Burger King’s conduct had caused him to suffer a particularly high risk of identity theft because ten of his card’s digits were displayed on receipts and that the high risk amounted to a concrete injury.

The Court determined that the plaintiff failed to satisfy Article III standing’s concreteness requirement. According to the Court, the plaintiff’s alleged concrete injury—suffering a higher risk of identity theft because the defendant printed the first six digits of his card number on a receipt—did not constitute a concrete injury. The Court reached that conclusion because the first six digits of a card number merely identify the institution that issued the card and are not part of a consumer’s unique account number. Since the display of the statutorily prohibited information—the first six digits of the plaintiff’s card number—did not involve the plaintiff’s unique account number, the plaintiff was not actually subjected to a higher risk of identity theft. The Court also noted that many other courts had reached the same conclusion in cases with similar facts that alleged violations of FACTA.

Without an allegation of a concrete harm, the plaintiff failed to satisfy Article III standing’s concrete injury requirement. Moreover, because the plaintiff lacked Article III standing, the Court lacked subject matter jurisdiction over the dispute. The Court, therefore, granted Burger King’s motion to dismiss.

A copy of Tarr v. Burger King is available here. Additionally, the plaintiff filed a notice of appeal on January 18, 2018.