Dec. 14, 2016 – Jeremy Myers really wants someone to pay for violating a federal law that requires merchants to block out the last five digits of a credit card number on receipts. But a federal appeals court has ruled against Myers for the second time in three months.
In September, the U.S. Court of Appeals for the Seventh Circuit ruled that the Oneida Tribe of Indians of Wisconsin was immune from Myers’ lawsuit under the federal Fair and Accurate Credit Transaction Act (FACTA), which prohibits merchants from printing more than the last five digits of a credit card number or the expiration date on receipts.
Myers had purchased items from stores owned by the tribe. The receipts showed expiration dates and more than the last five digits of Myers’ card number. But the three-judge appeals panel ruled that the tribe had tribal sovereign immunity.
Recently, in Myers v. Nicolet Restaurant of de Pere LLC, No. 16-2075 (Dec. 13, 2016), Myers struck out again on the same claim against a restaurant in de Pere. This time, a three-judge panel ruled that Myers lacked standing because he did not suffer any injury.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Myers alleged the Nicolet Restaurant of de Pere, in Wisconsin, did not truncate the expiration date on his credit card receipt after he dined there in 2015. He filed a class action lawsuit. The district court declined to certify the class, and Myers appealed.
A three-judge panel for the Seventh Circuit Court of Appeals vacated that decision with instructions to dismiss for lack of jurisdiction, precluding any class action certification.
The panel noted that Congress can give a right of action for violations of federal law, but “Congress does not have the final word on whether a plaintiff has a sufficient injury for the purposes of standing,” which requires a litigant to have suffered an injury in fact.
That is, a plaintiff must allege a concrete and particularized injury. On this point, the panel agreed with the defendant: The FACTA violation caused no injury to Myers.
“The allegations demonstrate that Myers did not suffer any harm because of Nicolet’s printing of the expiration date on his receipt,” wrote Judge Daniel Manion, noting the purpose of the FACTA is to deter identity theft. “After all, Myers discovered the violation immediately and nobody else ever saw the non-compliant receipt.”
Judge Manion also noted that Congress sought to limit lawsuits to those litigants that suffer from “actual harm,” cognizant that consumers could abuse their FACTA rights, and the decision is consistent with the U.S. Supreme Court’s ruling in Spokeo Inc. v. Robins, 136 S. Ct. 1540 (2016), a case under the Fair Credit Reporting Act (FCRA).
“In sum, we hold that without a showing of injury apart from the statutory violation, the failure to truncate a credit card’s expiration date is insufficient to confer Article III standing,” Judge Manion wrote for the three-judge panel.