Class Can’t Sue Restaurant for Credit Card Expiration on Receipt

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By Daniel R. Stoller

A restaurant that left credit card expiration dates on printed receipts didn’t harm privacy enough to let a class of customers sue, the U.S. Court of Appeals for the Second Circuit affirmed June 26 ( Crupar-Weinmann v. Paris Baguette Am., Inc. , 2d Cir., 6/26/17 ).

Chief Judge Robert A. Katzmann wrote that, under the Fair and Accurate Credit Transactions Act (FACTA), a receipt with a credit card expiration dates “on an otherwise properly redacted receipt” doesn’t “raise a material risk of identify theft.”

Additionally, the violation alone, without actual allegations of identity theft, doesn’t present enough harm to confer federal court standing, he said. The plaintiffs failed to show that the “bare procedural violation” of the law “posed a material risk of harm,” Katzmann wrote.

FACTA requires companies to redact all but a credit card’s last five numbers and the expiration date from receipts. Congress amended FACTA under the Credit and Debit Card Receipt Clarification Act “to clarify that a receipt containing a printed expiration data does not raise a material risk of identity theft,” the court said.

Gregory A. Frank, class action litigation partner at Frank LLP in New York and counsel in the present case, told Bloomberg BNA June 26 that, “Congress recognized that publication of credit card expiration dates brings an unacceptable risk of harm to consumers.” The Second Circuit’s decision “that a consumer must plead some additional risk is illogical,” he said.

The Second Circuit followed an earlier ruling by the Seventh Circuit in Meyers v. Nicolet Restaurant of De Pere, which held that, although failure to remove the expiration date is technically a violation of FACTA, the plaintiffs didn’t have standing because they failed show that they were actually harmed or that the violation created a risk of harm.

Judges Rosemary S. Pooler and Denny Chin joined in the Second Circuit opinion.

Representatives for Paris Baguette didn’t immediately respond to Bloomberg BNA’s email request for comment.

Troutman Sanders LLP represented Paris Baguette.

To contact the reporter on this story: Daniel R. Stoller in Washington at dStoller@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

For More Information

Full text of the opinion is available at http://src.bna.com/qd1.

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