On February 2, 2018, the United States District Court for the Northern District of Alabama dismissed a Fair and Accurate Credit Transaction Act (“FACTA”) lawsuit because, among other things, 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 or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.” In Taylor v. Fred’s, Inc., plaintiff Tiffany Taylor alleged that the defendant retail store owner violated FACTA in two ways. First, the plaintiff alleged a truncation violation. According to the plaintiff, the defendant printed receipts that displayed more digits of her card number than FACTA permits. Second, the plaintiff alleged an expiration date violation. The plaintiff claimed that the defendant—contrary to FACTA—printed receipts that displayed the expiration date of her debit card.
The defendant responded with a motion to dismiss. The company, among other things, argued that the district court lacked subject matter jurisdiction over the dispute because the plaintiff lacked Article III standing. According to the company, the plaintiff lacked Article III standing because she had failed to allege even one injury that was concrete. The plaintiff contended that the defendant’s conduct had caused her to suffer a sufficient injury in two ways. First, the plaintiff argued that a mere statutory FACTA violation—without more—was enough to satisfy Article III standing’s concrete injury requirement. Second, the plaintiff claimed that the defendant’s conduct caused her to suffer an increased risk of identity theft.
The court determined that the plaintiff lacked Article III standing. First, relying on Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), as revised (May 24, 2016), the court rejected the plaintiff’s contention that the alleged statutory FACTA violations—on their own and unconnected to any actual injuries—could satisfy Article III standing’s concrete injury requirement. Second, the court determined that both of the alleged violation types—truncation violations and expiration date violations—did not amount to concrete injuries. Neither of the alleged violation types materially increased the plaintiff’s risk of identity theft. The statutorily impermissible digits that the defendant printed on receipts—the first six digits of the plaintiff’s card number—only indicated which entity issued the card. Additionally, the court noted that Congress recognized that including an expiration date on a receipt does not materially increase the risk of identity theft as long as the receipt otherwise complies with FACTA. Therefore, the presence of the first six digits of the plaintiff’s card number on some receipts and the expiration date on others did not materially increase the plaintiff’s risk of identity theft. Moreover, the Court concluded that any distress regarding identity theft or preventative measures the plaintiff took did not amount to injuries that could satisfy Article III standing’s concrete injury requirement.
Without an allegation of a concrete injury, 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, dismissed the lawsuit.
A copy of Taylor v. Fred’s, Inc. is available here. King & Spalding previously reported on a similar case in its January 22, 2018 issue.