A man whose parking receipt exposed the full expiration date of his credit card lacked standing to sue over the data leak, a federal appeals court ruled this week, providing new case law in the wake of the U.S. Supreme Court’s Spokeo v. Robins decision.
In its Wednesday opinion, the U.S. Court of Appeals for the Ninth Circuit found that Steven Bassett lacked Article III standing to sue parking garage operator ABM Industries Inc. for violating the federal Fair and Accurate Credit Transactions Act. The unanimous panel, which affirmed dismissal of the case, said its ruling was in line with Spokeo and decisions in the two other circuits, as well as its own prior rulings that sided with the plaintiffs, largely because no one saw or stole Bassett’s receipt.
“Today 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?” wrote Judge M. Margaret McKeown. “We need not answer whether a tree falling in the forest makes a sound when no one is there to hear it. But when this receipt fell into Bassett’s hands in a parking garage and no identity thief was there to snatch it, it did not make an injury.”
The 2003 act, which amended the Fair Credit Reporting Act, states that no one who accepts credit or debit card transactions “shall print more than the last five digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transactions.” It provides statutory damages of $100 to $1,000 per violation.
Bassett alleged the disclosure of his credit card’s expiration date placed him at risk of identity theft.
In Spokeo, which also involved the Fair Credit Reporting Act, the Supreme Court held that in order to establish standing a plaintiff must allege an injury that is “particularized” and “concrete”—not just claim a bare statutory violation.
The Supreme Court remanded Spokeo v. Robins, but the Ninth Circuit sided with the plaintiff a second time.
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The ABM panel, however, relied on two other circuit decisions that addressed Spokeo in “identical class actions.” Those cases were the U.S. Court of Appeals for the Second Circuit’s June 26 ruling in Crupar-Weinmann v. Paris Baguette America, and the 2016 holding in Meyers v. Nicolet Restaurant by the U.S. Court of Appeals for the Seventh Circuit.
“The plaintiff’s bar had hoped that the Ninth Circuit’s post-remand decision in Spokeo was an indicator that the Court would split from the Second and Seventh Circuit’s decisions on this FACTA/FCRA issue, but it declined to do so,” said Joseph Dowdy of Kilpatrick Townsend & Stockton in Raleigh, North Carolina. “In Bassett, the Ninth Circuit declined to extend this analysis to cover a plaintiff who is the only person aware of his injury.”
As in the Second and Seventh circuit rulings, the Ninth Circuit focused on the intent of the Credit and Debit Card Receipt Clarification Act, which Congress passed in 2008 to curb abusive FCRA class actions. The legislation exempted businesses from FCRA lawsuits when they disclosed full expiration dates—but not entire credit card numbers—on receipts. That exception was for cases filed prior to 2008, but the Ninth Circuit found it was persuasive.
“We think our sister circuits are correct. History and congressional judgment ‘play important roles’ in our analysis of whether an injury is concrete,” McKeown wrote. “Both factors counsel that Bassett did not allege a concrete injury.”
The panel also distinguished the case from its prior holdings—specifically, Syed v. M-I and Van Patten v. Vertical Fitness Group. In those cases, the panel wrote, the plaintiffs suffered concrete injuries because they received unwanted text messages or their employers unlawfully accessed their consumer reports.
Ryan McBride, a shareholder at Lane Powell in Seattle, wrote in an emailed statement on behalf of New York-based ABM: “We are pleased with the Ninth Circuit’s ruling, which clearly validates our position and confirms our belief that the lawsuit had no merit.”
Plaintiffs attorney Darrell Cochran of Pfau Cochran Vertetis Amala in Tacoma, Washington, did not respond to a request for comment.