On August 19, the United States District Court for the District of Nevada dismissed a putative Fair Credit Reporting Act class action against two taxi companies that had allegedly violated the Fair and Accurate Credit Transactions Act by including the first digit and last four digits of consumers’ credit card numbers on fare receipts. The case was brought on the basis that FACTA generally prohibits companies from printing more than the last five digits of a consumer’s credit card on the receipt.
The court considered a five-digit credit card number, but which consisted of the first number and the last four numbers of the credit card. The court held that no finding of a willful violation of FACTA was possible under that scenario. The court found the plain language of the statute to be ambiguous, and then held that “[t]here is no liability where a company’s reading of the relevant statute is objectively reasonable, i.e., where one of several reasonable interpretations is complied with, despite any evidence of subjective bad faith … . The court finds that at a minimum, defendants’ reading of the statute to permit the printing of the first number plus the last four numbers is reasonable.”
The Court then considered issues of Article III standing, including under the Supreme Court’s recent decision in Spokeo, Inc. v. Robins. The court dismissed the claim for lack of standing, holding that the plaintiffs had not suffered any concrete injury in fact. The court reasoned that including the digit from the front end of the credit card number along with the last four digits did not provide potential identity thieves with any more information than printing the last five digits of the credit card number. “That means plaintiffs have no standing to complain of the putative technical violations of the statute alleged here, because the putative violations created no ‘concrete’ harm of the type sought to be prevented by Congress, and plaintiffs have not separately alleged any actual harm, i.e., they have not alleged any resulting credit card fraud.”
This decision continues the ongoing debate over the contours of “willfulness” under the FCRA, including whether the subjective intent of the defendant is relevant. It also bears on issues of Article III standing under the FCRA after Spokeo and what is required to state a plausible claim consistent with the requirements of Article III. Troutman Sanders will continue to monitor such developments.