Doris Jeffries v. Volume Services America, Inc.Doris Jeffries v. Volume Services America, Inc.
I. BACKGROUND
“The crime of identity theft—in which a perpetrator assumes the identity of a victim in order to obtain financial products and services or other benefits in the victim‘s name—ha[d] reached almost epidemic proportions” in the early 2000s. H.R. Rep. No. 108-263, at 25 (2003). “A hotline established by the Federal Trade Commission to field consumer complaints and questions about identity theft logged over 160,000 calls in 2002 alone.” Id. “[E]lectronically printed receipts” provided criminals with “easy access to” credit and debit card information. S. Rep. No. 108-166, at 3 (2003). In response to the increasing identity theft threat, the Congress enacted
Doris Jeffries made a purchase at a Centerplate location. Centerplate provided Jeffries with a receipt containing all sixteen digits of her credit card number, her credit card expiration date and her credit card provider. She immediately recognized that the receipt contained her personal information and held on to it for safekeeping. Jeffries then filed this class action lawsuit against Centerplate, alleging willful violations of FACTA‘s truncation requirement. According to the complaint, Centerplate‘s conduct violated Jeffries’ statutory right and, as a result, exposed her to an increased risk of identity theft. Because of Centerplate‘s conduct, Jeffries was also forced to take steps to safeguard the non-compliant receipt.
Centerplate moved to dismiss the case for lack of standing. Jeffries, 319 F. Supp. 3d at 528. The district court determined that Jeffries did not suffer an increased risk of identity theft because Jeffries—and only Jeffries—viewed the receipt containing her credit card information. Id. at 533–34. The district court also concluded that the burden of safeguarding the non-compliant receipt—the second form of harm identified in the complaint—was insufficiently concrete to support standing. Id. at 530. Finding both harms alleged in the
II. ANALYSIS
Article III of the United States Constitution limits the federal “judicial Power” to “Cases” and “Controversies.”
Jeffries contends that the violation of her statutory right under FACTA constitutes an injury in fact without any additional showing of harm. “[T]he violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact.” Spokeo, Inc., 136 S. Ct. at 1549. The United States Supreme Court has long recognized that the “Congress may create a statutory right or entitlement the
The concreteness component of injury in fact sharply limits when a plaintiff can establish standing based solely on a violation of his statutory rights. An injury in fact must always be “concrete“—that is, “real” and ”de facto,” not “abstract.” Spokeo, Inc., 136 S. Ct. at 1548; Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 514 (D.C. Cir. 2016) (“[T]he legislature cannot dispense with the constitutional baseline of a concrete injury in fact.“). This means the Congress cannot authorize a lawsuit based on a “bare procedural violation” of a statute divorced from any “real” or ”de facto” harm. Spokeo, Inc., 136 S. Ct. at 1549. After all, a “procedural right in vacuo” is nothing more than an abstract “interest in the proper administration of the law.” Summers v. Earth Island Inst., 555 U.S. 488, 496–97 (2009). For a statutory violation to constitute an injury in fact, then, the statute must protect the plaintiff‘s concrete interest—i.e., afford the putative plaintiff a right to be free of a harm capable of satisfying Article III. Accord Strubel v. Comenity Bank, 842 F.3d 181, 190 (2d Cir. 2016) (“[A]n alleged procedural violation can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff‘s concrete interests.“); Robins v. Spokeo, Inc., 867 F.3d 1108, 1113 (9th Cir. 2017) (same).
Jeffries believes FACTA is such a statute and vests consumers with a concrete interest in using their credit and debit cards without incurring an increased risk of identity theft. We agree. FACTA‘s truncation requirement imposes on the merchant the duty not to print “more than the last 5 digits of the card number or the expiration date.”
The question now becomes whether the interest protected by FACTA—avoiding an increased risk of identity theft—is concrete. “In determining whether an intangible harm” like risk is concrete, “both history and the judgment of Congress play important roles.” Spokeo, Inc., 136 S. Ct. at 1549. The historical analysis focuses on “whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. “In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.” Id.
History tilts toward concreteness. “A common law breach of confidence lies where a person offers private
We also give weight to the Congress‘s determination that printing too much credit card information on a receipt creates a “real” or ”de facto” harm. It found that printing excess credit card information gives “criminals . . . easy access to such key information” and thus contributes to identity theft. S. Rep. No. 108-166, at 3. “After hearing from experts on the matter, Congress decided to set the tolerable level of risk at printing the last five digits of a card number.” Muransky, 922 F.3d at 1188. The line between a concrete and an abstract risk is, understandably, hard to draw. For that reason, the Congress‘s judgment about when increased risk becomes intolerable is entitled to respect. See Spokeo, Inc., 136 S. Ct. at 1549.
Our analysis does not stop with the conclusion that FACTA protects a concrete interest. See id. at 1550 (some statutory violations “may result in no harm” and thus do not constitute injury in fact); Owner-Operator Indep. Drivers Ass‘n, Inc. v. U.S. Dep‘t of Transp., 879 F.3d 339, 343 (D.C. Cir. 2018) (even if statute protects concrete interest, “the putative plaintiff” must have “suffered a de facto injury resulting from the procedural violation“). We must also determine whether the challenged violation of Jeffries’ statutory right harmed or created a “risk of real harm” to the concrete interests protected by FACTA. Spokeo, Inc., 136 S. Ct. at 1549. Jeffries views the inquiry as open and shut, arguing that every FACTA violation creates a risk of identity theft. Her view finds support in a recent Eleventh Circuit decision, which determined that “Congress decided to set the tolerable level of risk at printing the last five digits of a card
But not every violation of FACTA‘s truncation requirement creates a risk of identity theft. Several years after enacting FACTA, the Congress found that “hundreds of lawsuits were filed alleging that the failure to remove the expiration date was a willful violation of” FACTA “even where the account number was properly truncated” and that “[n]one of these lawsuits contained an allegation of harm to any consumer‘s identity.” Credit and Debit Card Receipt Clarification Act of 2007,
Although not every FACTA violation creates a concrete injury in fact, we conclude that the alleged violation of Jeffries’ right does so. The Act requires the truncation of two categories of information at the point of sale: credit card digits and expiration date.
Centerplate focuses much of its defense on the fact that Jeffries has not become a victim of identity theft because, through her own efforts, she has mitigated any risk of a third party accessing her credit card information. These facts, although true, are irrelevant. As noted earlier, FACTA itself does not prohibit the crime of identity theft; instead, it
Centerplate also contends that a decision in Jeffries’ favor will create tension with the Third Circuit‘s opinion in Kamal v. J. Crew Group, which held that a plaintiff failed to establish standing when a merchant printed the first six digits of his credit card number on a receipt, 918 F.3d at 116–17. Yet the Third Circuit determined that a FACTA violation can support standing if the plaintiff faces a real or material risk of identity theft. Id. at 116. The court found no standing in that case because the plaintiff failed to allege that “the receipt included enough information to likely enable identity theft.” Id. It expressly stated its “analysis would be different if, for example, [the plaintiff] had alleged that the receipt included all sixteen digits of his credit card number, making the potential for fraud significantly less conjectural.” Id. In other words, the Third Circuit recognized its analysis would be different if it were presented with the facts Jeffries presents to us.3 See id.
So ordered.
ROGERS, Circuit Judge, concurring in part and concurring in the judgment:
The question before the court is whether appellant Doris Jeffries has plausibly alleged an Article III injury by pleading a violation of the Fair and Accurate Credit Transactions Act of 2003 (“FACTA“),
In 2003, Congress found that identify theft had reached “almost epidemic proportions,” H.R. Rep. No. 108-263, at 25 (2003), and that “electronically printed receipts” provided criminals with “easy access to” credit and debit card information, S. Rep. No. 108-166, at 3 (2003). To lower the
The Supreme Court has long held that Congress has the power to “define injuries” and articulate “new rights of action that do not have clear analogs in our common law tradition.” Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 126 n.22 (1998) (O‘Connor, J., concurring) (quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring)); see Zivotofsky ex rel. Ari Z. v. Sec‘y of State, 444 F.3d 614, 617–19 (D.C. Cir. 2006); see also William Baude, Standing in the Shadow of Congress, 2016 Sup. Ct. Rev. 197, 199–203 (2016). For example, the Court has recognized Congress‘s authority to create new rights that allow individuals to be free from competitive injury, Hardin v. Ky. Utils. Co., 390 U.S. 1, 6 (1968); receive “truthful information considering the availability of housing,” Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982); and access a wide range of government documents, see, e.g., Pub. Citizen v. U.S. Dep‘t of Justice, 491 U.S. 440, 449 (1989). None of these cases involved an analogy to a common law harm. Instead, the Court has indicated that the violation of a private statutory right constitutes an injury-in-fact so long as the plaintiff alleges the type of harm against which the statute is meant to guard. See Havens, 455 U.S. at 373–74; Hardin, 390 U.S. at 5–7; see also FEC v. Akins, 524 U.S. 11, 20–22 (1998); Owner-Operator Indep. Drivers Ass‘n, Inc. v. U.S. Dep‘t of Transp., 879 F.3d 339, 344–45 (D.C. Cir. 2018); Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016).
Spokeo did not overrule this line of precedent. See 136 S. Ct. at 1549–50 (citing Akins and Public Citizen with approval). On the one hand, the Court observed that in assessing concreteness it can be “instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts” because such an historical inquiry may shed light on the case-or-controversy requirement of Article III. Id. at 1549 (citing Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 775–77 (2000)). At the same time, the Court reaffirmed Congress‘s “power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” Id. (quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring)). Thus, while the Court indicated that “historical practice” can be evidence of what constitutes a concrete injury-in-fact, it did not suggest that every plaintiff who alleges her statutory rights have been violated must analogize her injury to a harm recognized at common law. See id.
Here, it is unclear whether the proffered analogy between a FACTA violation and a breach of confidence supports Jeffries’ claim of standing. In Spokeo, 136 S. Ct. at 1549, the Court cited Vermont Agency, 529 U.S. at 775–77, to illustrate
It also bears mentioning that FACTA lawsuits do not implicate traditional separation-of-powers concerns. The Supreme Court has long held that “[t]he law of Article III standing . . . serves to prevent the judicial process from being used to usurp the powers of the political branches.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017)
Finally, because the parties have not raised the issue and it is unnecessary to the resolution of this appeal, I would leave for another day the question whether “printing an expiration date on a receipt without more,” in violation of FACTA, causes an Article III injury. Op. 9; see Muransky, 922 F.3d at 1189 n.5.