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WBK Industry News - Litigation Developments

3rd Circuit Finds No Real Risk of Harm Means No Article III Standing in FACTA Suit

The U.S. Court of Appeals for the Third Circuit recently affirmed the dismissal of a putative class action under the Fair and Accurate Credit Transactions Act (FACTA).  The court ruled that the plaintiff failed to plead a concrete harm sufficient to confer Article III standing under the analysis set forth by the 2016 U.S. Supreme Court decision in Spokeo, Inc. v. Robins.

The plaintiff alleged that he had made three credit card purchases at a national clothing retail chain, and that on each of those occasions, the store printed both the first six digits and last four digits of his credit card number in violation of FACTA, which prohibits printing more than the last five digits of credit card number on a receipt.  The plaintiff claimed that the mere printing of those extra digits on his receipts constituted an actionable injury, and further that such alleged statutory noncompliance increased his risk of identity theft.  The district court held that neither of these harms was concrete under Spokeo, and dismissed the complaint for lack of standing.

On appeal, the panel rejected both of plaintiff’s alleged injury-in-fact arguments.  Under guidance from Spokeo, the court found that the mere procedural violation of printing extra credit card numbers on plaintiff’s receipts did not closely relate to the kinds of privacy violations that historically gave rise to cognizable injury.  The court also found that the plaintiff had not pleaded an injury-in-fact based on the allegedly increased risk of identity theft stemming from the company’s technical violation of FACTA because the alleged risk of identity theft “consist[ed] of a highly speculative chain of future events.”  Because the plaintiff neither alleged “third-party access” to his personal information, nor that the receipts at issue included enough information “to likely enable identity theft,” his alleged risk of harm was too conjectural to confer Article III standing.  Accordingly, the panel affirmed the district court’s judgment.