Statutory violation of FACTA confers standing in DC Circuit

On July 2, 2019, the US Court of Appeals for the District of Columbia Circuit held that a violation of the Fair and Accurate Credit Transactions Act of 2003, 15 USC § 1681c(g) (FACTA), without proof of resulting identity theft, is sufficient to confer Article III standing.  

The plaintiff used her credit card to make a purchase from Volume Services America, LLC, doing business as Centerplate, and received a receipt showing all 16 digits of the credit card, along with the expiration date.  The plaintiff did not discard the receipt, and did not allege that identity theft had occurred as a result of the violation.  She brought a class action suit against Centerplate on the grounds that the company had violated the FACTA requirement that no more than the last 5 digits of the card number be printed on the receipt.  FACTA provides that a person who willfully violates the prohibition against printing the full card number is liable for actual damages or “damages of not less than $100 and not more than $1,000” along with punitive damages in the discretion of the court.  15 USC §§ 1681n(a)(1)(A) and (a)(2).

The district court determined that the plaintiff had not suffered an increased risk of identity theft -- by not discarding the receipt, she had prevented exposure to potential thieves -- and granted Centerplate’s motion to dismiss for lack of standing.  The district court also concluded that the injury suffered by the plaintiff in bearing the burden of safeguarding the receipt was not sufficiently concrete to confer standing.  

Citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) and Muransky v. Godiva Chocolatier, Inc., 922 F.3d 1175 (11th Cir. 2019), the Circuit Court concluded that the interest protected by FACTA -- avoiding the risk of identity theft -- is sufficiently concrete to confer Article III standing.  The court reversed the dismissal, and remanded the case to the district court. 


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