A New Jersey district court’s recent dismissal of a single count claim brought under the Fair and Accurate Transactions Act (“FACTA”) reinforces the need for consumers to carefully identify their injury in fact. In Kamal v. J. Crew Group, Inc., 2016 U.S. Dist. LEXIS 145392 (D.N.J. Oct. 20, 2016), the consumer filed a putative class action alleging that defendant violated FACTA by displaying the first six digits and last four digits of his credit card on the electronically printed receipt. FACTA, which was passed in part to curb credit card fraud and identity theft, prohibits printing more than five digits of a credit card number on a sales receipt. The plaintiff alleged that he became more susceptible to fraud as a result of the defendant’s violation of FACTA.
In considering the defendant’s motion to dismiss for lack of standing, the court considered whether, “in light of Congress’ decision to authorize private suits under FACTA, printing ten rather than five credit card digits on a sales receipt elevates the risk of fraud enough to work a ‘concrete’ injury for the purpose of Article III standing.” Kamal at *6. In determining that the motion to dismiss should be granted, the court found that the amended complaint did not provide facts sufficient to demonstrate a “risk sufficiently ‘actual or imminent’ to constitute a concrete injury.” Specifically, the court noted that: (a) there was no evidence that anyone had accessed or attempted to access plaintiff’s credit card information; and (b) there was nothing to indicate anyone will actually obtain one of the plaintiff’s discarded receipts and identify the remaining six digits of the credit card number and then attempt to use the card. Moreover, the court noted that “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirements whenever a statute gives a person a statutory right.” Id. at *10.
The court’s decision joins a growing body of case law which has emerged since Spokeo v. Robins which refuses to give credence to technical statutory violations without some allegation or indicia of real harm.