Submitted December 5, 2017 [*] Seattle, Washington
from the United States District Court for the Western
District of Washington Thomas S. Zilly, Senior District
Judge, Presiding D.C. No. 2:16-cv-00947-TSZ
Darrell L. Cochran and Christopher E. Love, Pfau Cochran
Vertetis Amala PLLC, Tacoma, Washington, for
P. McBride, Abraham K. Lorber, and Randall P. Beighle, Lane
Powell PC, Seattle, Washington, for Defendants-Appellees.
Before: Michael Daly Hawkins, M. Margaret McKeown, and Morgan
Christen, Circuit Judges.
/ Fair Credit Reporting Act
panel affirmed the district court's dismissal due to lack
of standing in a putative class action alleging a violation
of the Fair Credit Reporting Act when the plaintiff received
a credit card receipt displaying the card's full
Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), the
Supreme Court held that to have Article III standing when
alleging only a statutory violation, a plaintiff must allege
a concrete injury in fact.
panel joined the Second and Seventh Circuits in affirming
dismissal under identical circumstances, and held that the
plaintiff failed to allege a concrete injury in fact
sufficient to give him standing. The panel held that when the
plaintiff received the credit card receipt and there was no
identity thief there to snatch it, there was no injury.
MCKEOWN, CIRCUIT JUDGE:
we answer a question that would certainly sound exotic to our
nation's founders: Is receiving an overly revealing
credit card receipt-unseen by others and unused by identity
thieves-a sufficient injury to confer Article III standing?
response to growing credit card fraud and identity theft,
Congress enacted a series of protective laws. When Steven
Bassett used his credit card at an ABM parking garage, he
received a receipt displaying the card's full expiration
date-a violation of the requirement that businesses redact
certain credit card information on printed receipts. 15
U.S.C. § 1681c(g). Bassett sued but alleged only a
statutory violation and a potential for exposure to actual
injury. Like the district court, we conclude that Bassett
failed to allege a concrete injury sufficient to give him
standing. In doing so, we join the Second and Seventh
Circuits in affirming dismissal under identical
circumstances. See Crupar-Weinmann v. Paris Baguette Am.,
Inc., 861 F.3d 76 (2d Cir. 2017); Meyers v. Nicolet
Rest. of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016).
legislative backdrop for this case centers on FACTA and FCRA.
The Fair and Accurate Credit Transactions Act of 2003
("FACTA"), Pub. L. No. 108-159, 117 Stat. 1952,
amended the Fair Credit Reporting Act ("FCRA") to
limit the information printed on receipts: "[N]o person
that accepts credit cards or debit cards for the transaction
of business shall print more than the last 5 digits of the
card number or the expiration date upon any receipt provided
to the cardholder at the point of the sale or
transaction."15 U.S.C. § 1681c(g). The statute
provides that "[a]ny person who willfully fails to
comply with [that requirement] with respect to any consumer
is liable to that consumer" for statutory damages of
between $100 and $1, 000 per violation or "any actual
damages sustained by the consumer, " costs and
attorney's fees, and potential punitive damages.
Id. § 1681n.
the passage of FACTA, consumers filed a spate of lawsuits
against merchants who printed receipts showing credit card
expiration dates. In response, Congress enacted the Credit
and Debit Card Receipt Clarification Act (the
"Clarification Act"), Pub. L. No. 110-241, 122
Stat. 1565 (2008). The Clarification Act reiterated that the
FCRA prohibits the printing of receipts bearing a card's
expiration date. Id. at 1566. But the congressional
findings also noted that "hundreds of lawsuits were
filed alleging that the failure to remove the expiration date
was a willful violation of the [FCRA] even where the account
number was properly truncated, " and "[n]one of
these lawsuits contained an allegation of harm to any
consumer's identity." Id. at 1565. Congress
went on to find that "[e]xperts in the field agree that
proper truncation of the card number, by itself as required
by the [FCRA], regardless of the inclusion of the expiration
date, prevents a potential fraudster from perpetrating
identity theft or credit card fraud." Id.
"ensure that consumers suffering from any actual harm to
their credit or identity are protected while simultaneously
limiting abusive lawsuits, " the Clarification Act
granted a temporary reprieve for merchants: "[A]ny
person who printed an expiration date on any receipt . . .
between December 4, 2004, and [June 3, 2008], " but
otherwise complied with the card number truncation
requirements, did not willfully violate ...