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By Jimmy H. Koo
A medical marijuana dispensary customer failed to convince a federal court that his payment card receipt revealing the card expiration date was harmful enough to pursue a class action ( Llewellyn v. AZ Compassionate Care Inc. , 2017 BL 134818, D. Ariz., No. CV-16-04181-PHX-DGC, 4/24/17 ).
Allegations that the receipt revealed too much information in violation of the Fair and Accurate Credit Transactions Act , without more, doesn’t implicate traditional privacy interests, the U.S. District Court for the District of Arizona held April 24.
The case serves as a reminder that federal trial courts are more strictly demanding proof of harm even for cases in which the governing statute allows for specific payment of damages per individual violation. The legal issues surrounding proof of harm in statutory damages cases has largely been settled by the U.S. Supreme Court. That has played out in lower federal courts on a case-by-case basis, but the trend has been to disallow more statutory damages claims.
Judge David G. Campbell said that under the U.S. Supreme Court’s ruling in Spokeo v. Robins, “a bare procedural violation, divorced from any concrete harm” is insufficient to satisfy standing. In the only federal appeals court opinion after Spokeo to address standing to allege a FACTA claim, the U.S. Court of Appeals for the Seventh Circuit held in Meyers v. Nicolet Restaurant of De Pere LLC 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.”
According to plaintiff Jason Llewellyn’s class action complaint, at some point after Dec. 3, 2006, AZ Compassionate Care Inc., doing business as TruMed, printed receipts with the full expiration date and the last four digits of customers’ debit cards. FACTA requires that receipts don’t show expiration dates or any more than the last five digits of card numbers.
Plaintiff sued for violation of FACTA. The Arizona dispensary moved to dismiss the action, alleging that the plaintiff hasn’t suffered an injury in fact and lacks standing to bring suit. The court agreed.
Under Spokeo, an injury may actually exist even if it is intangible, but to determine whether an intangible injury is concrete, courts must consider the judgment of Congress, the court said. Congress amended FACTA with the Credit and Debit Card Receipt Clarification Act “‘to ensure that consumers suffering from any actual harm to their credit are protected while simultaneously limiting abusive lawsuits,’” the court said.
“Congress itself found that mere printing of the expiration date does not create a risk of identity theft,” the court said, granting TruMed’s motion to dismiss.
TruMed didn’t immediately respond to Bloomberg BNA’s email request for comment.
Chant & Company and Davis Miles McGuire Gardner PLLC represented the plaintiff. Jennings Strouss & Salmon PLC represented TruMed.
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Full text of the court's opinion is available at http://src.bna.com/odY.
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