FACTA – Consumer Financial Services Watch

Ninth Circuit Doubles Down on Lack of Standing under Spokeo in FACTA Cases

Mar 16 2018

By Gregory N. Blase, Andrew C. Glass, and Roger L. Smerage

Recently, the Ninth Circuit held in Bassett v. ABM Parking Services, Inc. that an allegation that a business violated the Fair and Accurate Credit Transactions Act (“FACTA”) by printing a credit card expiration date on a customer’s receipt is, by itself, insufficient to establish Article III standing under Spokeo, Inc. v. Robins. (For more information, read K&L Gates alerts on the Bassett decision and FACTA standing jurisprudence.) Now, in Noble v. Nevada Checker Cab Corp., No. 16-16573 (9th Cir. Mar. 9, 2018), the Ninth Circuit reached the same conclusion with respect to an alleged FACTA violation arising out of the printing of the first digit of the card number in addition to the last four digits. In doing so, the Ninth Circuit appears to be sending a strong signal to potential FACTA plaintiffs that something more than a technical violation is necessary to have standing to pursue statutory damages in federal court under FACTA.

Ninth Circuit Ruling Rejects FACTA Suit under Spokeo, Avoiding Circuit Split

Feb 28 2018

By Andrew C. Glass, Gregory N. Blase, and Roger L. Smerage

The Ninth Circuit recently held in Bassett v. ABM Parking Services, Inc. that a plaintiff cannot establish Article III standing to maintain a Fair and Accurate Credit Transactions Act (“FACTA”)[1] claim merely by pleading that a business printed a credit card expiration date on the plaintiff’s receipt.[2] In so ruling, the Ninth Circuit followed similar rulings by the Second and Seventh Circuits, avoiding a potential circuit split. As explained below, the Bassett decision is the latest in a growing majority of cases in the wake of Spokeo, Inc. v. Robins[3] that demand a plaintiff allege actual harm to maintain a FACTA damages claim—even one for statutory damages based on an alleged willful violation.

Standing to Sue under the Fair and Accurate Credit Transactions Act after Spokeo

Jan 12 2018

By: Andrew C. Glass, Gregory N. Blase, and Roger L. Smerage

After paying for groceries with a credit card or debit card, the clerk hands the receipt to the customer. In addition to the last four digits of the card number, it contains the first digit. Or perhaps it contains the first six digits. Or maybe the expiration date. Is this a concrete injury that provides the customer standing to sue the grocery store?

That is the question federal courts have grappled with since the Supreme Court decided Spokeo, Inc. v. Robins[1] in May 2016. The Fair and Accurate Credit Transactions Act (“FACTA”)[2] regulates retailers’ conduct in printing card number information on customers’ receipts and provides a private right of action for alleged violations. But, as discussed below, a customer may not have standing to sue in federal court or even in certain state courts just because a violation may have occurred.

Tag:FACTA