On August 29, a Florida federal court rejected a motion to dismiss filed by Doctor’s Associates, Inc., doing business as Subway, which relied on the U.S. Supreme Court’s recent decision in Spokeo v. Robins in a Fair and Accurate Credit Transactions Act (“FACTA”) putative class action. Plaintiff Shane Flaum claimed that Subway violated FACTA by printing his card’s full expiration date on a receipt, even after it had been sued in the past for similar violations in 2007, 2008, and 2009. Flaum’s complaint, filed in June 2016, stated that he and other customers who did business with Subway using a debit card were provided with purchase receipts that included too much of their personal credit card information. Among other things, FACTA requires retailers to omit card expiration dates on receipts.
In its motion to dismiss, Subway argued that that Flaum had failed to specify sufficient and actual harm. Furthermore, even if his allegations were true, it said, the only alleged harm is an elevated risk of identity theft, and courts have held that the risk of future harm is not injury-in-fact or sufficient to confer standing. In denying the motion, U.S. District Judge Cecilia M. Altonaga stated:
Here, because the FACTA created a substantive legal right for Flaum and other consumers to receive printed receipts that do not disclose “more than the last 5 digits of the card number” . . . and Flaum personally suffered a concrete harm in receiving a receipt that violated the statute, he has sufficiently alleged an injury-in-fact so as to satisfy subject matter jurisdiction.
Further, citing the Spokeo decision and the Eleventh Circuit’s recent ruling in Church v. Accretive Health Inc., the court acknowledged that “where Congress has endowed plaintiffs with a substantive legal right, as opposed to creating a procedural requirement, the plaintiffs may sue to enforce such a right without establishing additional harm.” It added:
Using Spokeo and Church as guideposts, the question before the court appears to be whether, in enacting the FACTA, Congress created a substantive right for consumers to have their personal credit card information truncated on printed receipts, or merely created a procedural requirement for credit card-using companies to follow. The court is persuaded Congress intended to create a substantive right.
The case is Shane Flaum v. Doctor’s Associates, Inc., Case No. 0:16-cv-61198, pending in the U.S. District Court for the Southern District of Florida.