A fight over a receipt for chocolate could end up in the Supreme Court. The Eleventh Circuit affirmed a $6.3 million settlement between Godiva Chocolatier, Inc. and a class of plaintiffs who alleged that Godiva violated the Fair and Accurate Credit Transactions Act by printing too many digits of the plaintiffs’ credit cards on their receipts. In holding that the class representative, Dr. David Muransky, had standing to bring a FACTA claim, the Eleventh Circuit split with other circuits, teeing the issue up for the Supreme Court.
Dr. Muransky made a purchase at a Godiva store and noticed that his receipt showed the first six and last four digits of his credit card number. Per FACTA’s “truncation requirement,” merchants cannot print “more than the last 5 digits of the card number . . . upon any receipt provided to the cardholder.” 15 U.S.C. § 1681c(g)(1). Dr. Muransky brought FACTA claims on behalf of himself and a class of plaintiffs, resulting in a $6.3 million settlement. One of the class members, Eric Isaacson, objected to the settlement by arguing, inter alia, that Dr. Muransky lacked Article III standing to bring a FACTA claim. The Court overruled Isaacson’s objections, and he appealed.
In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Supreme Court held that “Article III standing requires a concrete injury even in the context of a statutory violation.” The Supreme Court explained that a “risk of real harm” might satisfy the requirement, but that not all statutory violations “cause harm or present any material risk of harm.” Id. at 1549–50. Since Spokeo, the Second, Third, Seventh, and Ninth circuits—as well as several district courts—have dismissed FACTA claims for a lack of standing.
In Katz v. Donna Karan Co., L.L.C., 872 F.3d 114 (2d Cir. 2017), the Second Circuit held that printing the first six digits of a credit card number does not pose a risk of harm sufficient to confer standing. 872 F.3d at 120–21. As the Second Circuit explained, those digits simply “identify the institution that issued the card,” and “FACTA does not prohibit printing the issuer identity on a receipt.” Thus, although the printing of the digits themselves may be a technical violation of FACTA, the statute otherwise allows that same information to be printed on the receipt.
The Third Circuit reached the same conclusion in Kamal v. J. Crew Group, Inc., 918 F.3d 102 (3d Cir. 2019). Similar to Dr. Muransky, the plaintiff in Kamal alleged that his receipt violated FACTA by showing the first six digits of his credit card number. The Third Circuit held that the plaintiff did not show a concrete risk of harm absent an allegation that a third person ever saw the receipt at issue. Like Katz, the Kamal Court also held that the plaintiff failed to allege that “the receipt included enough information to likely enable identity theft.”
Now, the Eleventh Circuit stands alone in holding that a plaintiff has standing to bring a FACTA claim by simply alleging a procedural violation and a “heightened risk of identity theft.” Relying on pre-Spokeo precedent, the Eleventh Circuit held that the “risk [of harm] need be no more than an ‘identifiable trifle’ to be concrete” within the meaning of Spokeo.
Troutman Sanders will continue to monitor this developing circuit split.