On June 6, a federal judge in New Jersey for the second time dismissed a putative class action against clothier J. Crew Group, Inc. on the grounds that the plaintiff, Ahmed Kamal, had not pled a concrete injury sufficient for Article III standing light of Spokeo, Inc. v. Robins. Kamal alleged that J. Crew violated the Fair and Accurate Credit Transactions Act (“FACTA”) by including on printed customer receipts either four or six digits of credit card numbers, rather than just the last five, as permitted by FACTA.
The case was first filed in January 2015 and J. Crew moved, unsuccessfully, to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In December 2015, J. Crew successfully moved to stay the case pending the outcome of Spokeo. Following Spokeo, J. Crew moved to dismiss on the basis of subject matter jurisdiction, and the court dismissed the claims against J. Crew without prejudice, finding Kamal had not pled sufficient injury. Kamal filed an amended pleading and J. Crew again moved to dismiss, arguing that even Kamal’s renewed arguments could not demonstrate a concrete injury within the contours of Spokeo.
In defending his claims against J. Crew’s motions, Kamal argued he suffered two cognizable injuries. The first, he argued, was disclosure of information legally considered inherently private; the second was increased risk of future identity theft or credit card fraud. The court held that neither alleged a “concrete harm” that could satisfy the Article III test.
With respect to the disclosure of private information, the court rejected the idea that J. Crew’s conduct had any meaningful relationship to any privacy interest historically recognized at common law. The court noted that the information at issue had not been disclosed to any third party or used in a fraudulent manner. Instead, Kamal had given J. Crew his credit card and J. Crew had, in turn, handed the receipt back to Kamal for his own use.
With respect to the risk of future harm, the court was similarly unpersuaded. The court’s conclusion was grounded in the nature of credit card numbers, with the last ten digits of the card number reflecting a particular account number. That being true, the court remarked that printing four or six digits (as Kamal alleged J. Crew had done) did not provide any meaningful information to allow a wrongdoer to perpetrate fraud or other harm. Moreover, the court rejected the idea that thieves diving in dumpsters for receipts posed any definite risk of harm to Kamal and found unconvincing arguments about sophisticated cyber criminals phishing for information.
Finding that Kamal remained unable to plead harms sufficient for Article III, the court dismissed the case but left open the possibility of another round of re-pleading. On June 8, Kamal filed a motion for reconsideration or, in the alternative, for the court to certify the dismissal order as a final judgment and allow Kamal to take the matter to the Third Circuit Court of Appeals. Kamal’s motion on that point remains pending.