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By Jimmy H. Koo
Burger King Corp. won’t have to face a consumer class complaint alleging it printed receipts revealing too much payment card information, a Florida federal court held Sept. 27 ( Gesten v. Burger King Corp. , 2017 BL 341816, S.D. Fla., No. 17-22541, 9/27/17 ).
The Fair and Accurate Credit Transactions Act (FACTA) requires merchants to print no more than the last five digits of credit and debit cards on receipts. Plaintiff Ryan D. Gesten alleged that Burger King printed a receipt displaying the first six and last four digits of his credit card number. Gesten alleged that he was subjected to a “heightened risk of identity theft” but didn’t allege actual identity theft or other injury.
Judge Robert N. Scola of the U.S. District Court for the Southern District of Florida wrote that a procedural violation of FACTA without an allegation of actual harm or a material risk of harm isn’t sufficient to confer federal court standing. Citing the U.S. Supreme Court’s opinion in Spokeo Inc. v. Robins, Scola said that “standing requires a concrete injury even in the context of a statutory violation.”
The court joins other federal district and circuit courts that have held a bare procedural violation of a statute isn’t enough to establish standing. In June, the U.S. Court of Appeals for the Second Circuit held that a receipt that had payment card expiration date in violation of FACTA, without actual allegations of identity theft, was insufficient for standing.
Allegations of FACTA violations can be very costly. In March, global sandwich chain Subway received preliminary approval to pay $30.9 million to settle class allegations it printed receipts revealing too much information. In February, Microsoft Corp. agreed to pay $1.2 million to settle similar class allegations.
Bret Lusskin PA and Keogh Law Ltd. represented Gesten. McDermott Will & Emery LLP represented Burger King.
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