On March 9, the Ninth Circuit affirmed dismissal of a putative FACTA class action on Article III standing grounds, citing the requirement of a "concrete injury" reinforced by the U.S. Supreme Court's 2016 decision in Spokeo v. Robins. In Noble et al. v. Nevada Checker Cab Corp. et al., No. 16-16573, the court held that the plaintiffs had not alleged a concrete injury simply because the defendant taxi companies had included the first and last four digits of their credit card numbers on receipts. FACTA prohibits printing more than the last five digits of a card on receipts.
The panel noted that the plaintiffs failed to allege a breach of privacy or any tangible harms resulting from the first-digit disclosure. Further, the court relied on its February 2018 decision in Bassett v. ABM Parking Services Inc., in which it rejected standing for a plaintiff who claimed a FACTA violation for including his card expiration date on a receipt.
"As in Bassett, appellants here did not allege that anyone else had received or would receive a copy of their credit card receipts. As in Bassett, appellants' alleged injury depended entirely on a FACTA violation," the Ninth Circuit stated. "Bassett's reasoning controls the issue in this case, and we are bound by it."
Finally, the Ninth Circuit found that the alleged violation did not result in the disclosure of information envisioned by Congress in protecting against identity theft. Like the disclosed expiration date, the first digit of the card number (which simply identifies the brand of the card) by itself posed a minimal risk.
A copy of the decision can be found here.
Troutman Sanders will continue to monitor these developments and provide any further updates as they are available.
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