On July 13, 2022, the Florida District Court of Appeal for the Fourth District affirmed an order dismissing a putative class action filed under the federal Fair and Accurate Credit Transactions Act (FACTA) for lack of standing. Southam v. Red Wing Shoe Company, Inc., No. 4D21-3338 (July 13, 2022). FACTA provides, in part, that “except as otherwise provided in this subsection, no 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. FACTA further provides that “any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of … any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000 ….” 15 U.S.C. § 1681n.
The plaintiff (Plaintiff) filed in federal court a putative class action in which he alleged that he received a receipt from Red Wing Shoe Company (Red Wing) that contained 10 digits of his credit card number and violated FACTA. Plaintiff did not allege that his credit card was used, lost or stolen but, rather, acknowledged that the receipt remained in his possession. Plaintiff did not allege or seek to recover actual damages but sought only statutory damages on behalf of himself and the class. After the Eleventh Circuit decision in Muransky v. Godiva Chocolatier, Inc. (11th Cir. 2020) held that such allegations did not establish federal standing in a similar case, the parties remanded the case to Florida state court.
Red Wing filed a motion to dismiss, arguing that Plaintiff did not have standing to assert the FACTA claim because he had not suffered a concrete or actual injury. The trial court granted Red Wing’s motion to dismiss, holding that Plaintiff must have a concrete, non-hypothetical injury to have standing and that “[m]erely obtaining a receipt in alleged violation of FACTA does not satisfy this requirement.” Plaintiff appealed.
On appeal the Florida District Court of Appeal for the Fourth District explained that Florida law imposes three requirements that a plaintiff must establish for standing: (1) an “injury in fact, which is concrete, distinct, palpable, and actual or imminent”; (2) a “causal connection between the injury and the conduct complained of”; and (3) a “substantial likelihood that the requested relief will remedy the alleged injury in fact.” The appellate court concluded that Plaintiff’s allegations did not establish an actual injury since “nothing was alleged to have been charged to appellant’s account … [n]or was there an imminent possibility of injury, since appellant retained possession of the receipt.” Additionally, the appellate court found federal case law on standing to be persuasive, applying the U.S. Supreme Court’s analysis in Spokeo, Inc. v. Robins and Ramirez v. TransUnion and concluding that “[i]n the present case, like in Spokeo and TransUnion, the facts lacked a concrete injury even in the context of an alleged statutory violation. TransUnion concluded that ‘only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation.’”
Note that the decision is not final until disposition of a timely filed motion for rehearing, if any.
The bottom line: As federal courts decline jurisdiction over federal statutory claims for lack of standing, defendants who find themselves defending federal statutory claims in state court should be mindful of respective state law on standing and relevant guidance from federal courts. Florida standing law follows federal standing law.