DKNY boutique
DKNY boutique (WIKI)

The U.S. Court of Appeals for the Second Circuit added further clarification Tuesday to concrete injury requirements in claims of bare procedural violations of statutes in the wake of the U.S. Supreme Court’s 2016 Spokeo v. Robins.

In Katz v. The Donna Karan Company, 15-464, Second Circuit Chief Judge Robert Katzman, along with Judges Rosemary Pooler and Denny Chin, upheld U.S. District Judge Paul Crotty of the Southern District of New York’s decision in the case now before the appellate court, even as he was ordered to amend the dismissal to be without prejudice.

The suit is the most recent affected by the Spokeo ruling, here focused on the bare procedural claims under the Fair and Accurate Credit Transactions Act of 2003. The act aims to protect consumers from identity fraud by, among other things, restricting what credit card information can appear on a sales receipt.

The panel noted that, in a related case, Crupar-Weinmann v. Paris Baguette America, simply including a card’s expiration date without more information did not increase the risk of material harm.

In Katz, the panel agreed with the district court that the information the plaintiff found on two separate receipts from Donna Karan stores—the first six digits of his credit card—also failed to present a material issue of harm even though the letter of the federal law was broken.

Crotty based his decision on information provided by defendants in their motion to dismiss, which showed the first six digits merely identified who issued the card, such as Visa or MasterCard. Yehuda Katz argued that information could be used for malicious reasons to narrow the universe of possible number combinations and, therefore, make it easier for identity thieves to use.

The panel found the district court’s finding of a lack of subject matter jurisdiction was not clearly erroneous, as the federal law does not expressly prohibit printing the identity of the card issuer on the receipt.

The panel, noting the abbreviated fact-finding process in Katz, said going forward that “evidentiary production via affidavits, and even limited jurisdictional discovery, may sometimes be appropriate” to allow plaintiffs time to satisfy the burden of demonstrating standing.

Private attorney Shimshon Wexler represented Katz on appeal. Proskauer Rose partner Gregg Mashberg led the Donna Karan team. Neither could be reached for comment.