Steven Hammer v. Sam's East, Inc.

492 parts all of its be deter- drilling requirement and must construed to

between the here as in meaning any consideration is the same particular part bonus mine the as whole.”). damages liqui That here were Frein. well as of the Lawrence v. Cf. Frein, dated, required proof but does 310, 340, Mahony, 145 Ark. S.W. analysis. Foran v. change not (1920) (affirming provision a surrender Cf. Co., Ark. Ark. Wisconsin & Lumber gas exploration given an oil and lease (1923) 848, (finding sig 246 S.W. consideration), Guffey citing nominal surety liquidated nificant a bond—not Smith, 101, 115-16, damages—in upholding drilling require (1915). 59 L.Ed. 856 clause). ment over a surrender Frein is the evidence of best Arkansas First Tennessee believes the surrender distinguishable.3 law. This case distinguishable. clauses are The lease in ‡ ‡ ‡ stated, may any Frein “Lessee at time surrender or cancel this lease in or judgment whole is affirmed. Frein, Here, part.” 366 S.W.3d 369. states, may

the lease “Lessee time

... any part surrender this lease as to

parts.” limiting language, Absent surren- “any” part necessarily

der as to includes

surrender or cancellation of the “whole.” generally Phillips Fuller v. Petroleum (5th Cir.1989) (“In Co., HAMMER, individually Steven E. and gas industry, the oil and the term ‘surren- similarly on behalf of all others situ- der’ right refers to the contractual of a ated; White, individually Michael D. voluntarily relinquish lessee to to the les- similarly and on behalf of all others sor all or part premises.”) of the leased situated, Plaintiffs-Appellants added); Miller, (emphasis Ford v. Ark. (equat- 232 S.W. America, United States of Intervenor ing “surrender” and “cancellation” of lease). this, with Consistent the lease not- ed that “the unilateral release of this EAST, INC., doing SAM’S business as lease” Pathfinder abrogate does not its Club; Does, 1-10, inclusive; Sam’s obligation pay up-front bonus con- West, Inc., doing Sam’s business as sideration. Club; Stores, Inc., Sam’s Wal-Mart Frein, large up-front payment As individually, doing business

with a option surrender clause creates an Club, doing business as Sam’s Whole- lease, to cancel the which Pathfinder exer- Club; Does, 1-8, inclusive, sale Defen- Frein, cised. See 366 S.W.3d at 371 dants-Appellees (“[T]he appellee express option had the Hammer, individually E. cancelling the Steven on leases and exercised that similarly situated; option behalf of all eighteen elapsed.”); before months others Co., White, individually Hughes v. El Dorado 160 Michael D. and on Union Oil (1923) (“A similarly situated, Ark. behalf all 254 S.W. others whole, Plaintiffs-Appellees contract must be construed as a to, appeal, Deceptive On First alludes Tennessee but Arkansas Trade Practices about, Act, separate argument seq. no makes violation Ark.Code 4-88-101 et America, Intervenor States United East, Inc., doing business

Sam’s Club, Defendant-

as Sam’s

Appellant inclusive,

Does, 1-10, Defendant doing West, Inc., as business

Sam’s Stores, Inc., Club; Wal-Mart

Sam’s

individually, doing as business Sam’s

Club, doing Whole- business Club, Defendants-Appellants

sale inclusive,

Does, 1-8, Defendant. 12-3724, 12-3858.

Nos. Appeals,

United States Court

Eighth Circuit. 25, 2013. Sept.

Submitted: 5, 2014.

Filed: June Jay Singer, Noel

Michael Christine brief, DC, Kohl, Washington, on Intervenor. RILEY, Judge, Chief BRIGHT

Before BYE, Judges. Circuit BRIGHT, Judge. Circuit action, plaintiffs (appellants) In this Ste- allege ven Hammer and Michael White Stores, Inc., East, Sam’s that Wal-Mart West, Inc., (collectively Inc. and Sam’s Club”)1 a willfully provi- “Sam’s violated the Fair and Accurate Credit sion of (FACTA), Act Transactions U.S.C. § a ac- 1681e(g)(l), prohibits person which for a consum- cepting credit or debit cards more than “printing] er transaction from number ... digits the last five of the card to the cardhold- upon any receipt provided its conclusion that Sam’s Despite er.” FACTA, the district court2 Club violated summary judgment of dismissal in granted that the ground favor of Sam’s Club on the agree, not willful. and violation was We therefore affirm. Background retailer, Club, membership-only

Sam’s membership requires customers to have shop at a card and number order Walters, City, Kansas Roy argued, F. store. Sam’s Club members Sam’s Club MO, Appellant/Cross-Appellee. for Private may apply for a Sam’s Club also Renwick, Matthew R. Crim- Karen W. Card, which doubles as Label Credit brief, MO, mins, City, for on the Kansas credit card. The membership card and a Appellant/Cross-Appellee. card number. 19-digit card has a credit Eiszner, Shah, ar- R. Patrik A. James Bank comprise the digits The first seven MO, City, Appel- for gued, Kansas Number, identifies the Identification which lees/Cross-Appellants. card, and is issuing the banking institution publicly and avail- Schwartz, brief, identical on all cards on the for J. Rebecca dig- twelve remaining of the able. Eleven Appellees/Cross-Appellants. Sachs, F. United Howard plaintiff in the 2. The Honorable was the sole named 1. Hammer subsequently Judge the Western District original complaint. Hammer States District complaint adding asWhite filed an amended of Missouri. Stores, Inc., WalMart named West, Inc., as defendants. and Sam’s It unique point its are to the credit card holder. the cardholder of the sale or to the initiation of transaction. undisputed prior action, designed its Pri- Sam’s Club Appellants allege that Sam’s Club violat- vate Label Credit Cards such that the last by printing ed this statute more than the twelve of that card number read digits digits last five of their credit card numbers digits identical to the last twelve on electronically-printed receipts despite membership cardholder’s number. fact that receipts listed the numbers as Appellants “member” numbers. further Private appellants hold Sam’s Club allege that the violation was willful because multiple Label Credit On occa- Cards. persisted in printing Club credit 2007-2008, they purchased sions from card numbers on receipts despite knowing products at Sam’s Club stores Kansas repeatedly being informed about FAC- using and Missouri their cards and were receipt requirement. Appellants TA’s do given electronically-printed at the receipts allege damages, actual but seek to point only The receipts sale. disclosed recover damages provi- under a appellants’ the last four credit Reporting sion the Fair Credit Act . numbers; however, receipts card also (FCRA), 1681n, 15 U.S.C. which governs separately showed the last ten consecutive liability pro- for FACTA violations. That digits membership of their numbers. vision states: Thus, given designed that Sam’s Club the Any person willfully who comply fails to digits membership last twelve and credit any with requirement imposed under same, receipts card numbers to be the the subchapter this respect any with con- showing appellants’ “member” number sumer is hable to that in consumer in fact disclosed the last 10 consecutive equal amount to the sum of ... digits appellants’ credit card numbers. actual damages sustained the con- following example The illustrates how sumer aas result of the failure or dam- receipts disclosed the appellants’ mem- ages of not than less and not more $100 (“V Member”) bership numbers and credit $1,000. than (“Account ”): card numbers # 1681n(a)(l)(A) (hereinafter 15 U.S.C. V Member: 101-00123456789 liability provision”). “the FCRA Appel- Account #: 6789 punitive damages lants also seek and rea- example, com- bold numbers attorneys’ sonable fees. prise digits the last ten of the consumer’s After the district court denied Sam’s credit card number. Club’s motion to dismiss under Fed. Appellants subsequently filed this action 12(b)(6), R.Civ.P. appellants moved for on behalf of themselves and others similar- summary judgment on the issue of wheth- ly asserting situated that Sam’s Club its er Sam’s receipt Club violated FACTA’s receipts provided to Pri- consumers with requirement by printing receipts with vate Label Credit Cards violated FACTA’s membership numbers that included more receipt requirement, 15 limitation U.S.C. digits than five of customers’ credit card § 1681c(g)(l), reading: numbers. The granted district court motion, person accepts that credit reasoning

[N]o cards or that “one cannot avoid debit cards for the prohibition by transaction of busi- referring on the print ness shall more than the last 5 to a if in fact ‘membership number’ digits expira- of the card number or the collection of numbers includes a long upon any receipt provided tion date string of more than five that are also 24, (July standing card proceeding as credit numbers.” address before to the used 2.) district Although merits. Order concluded Sam’s Club violated court Standing A. Article III FACTA, it reserved for consideration of whether the violation was willful— issue “Article III statutory precondition liability. question in every threshold federal court case.” United States v. Lincoln Nav One summary then moved for Sam’s Club igator Cir. on the judgment issue willfulness. 2003). judicial “The exercise of un power granted court the motion and dis- district depends der Art. Ill of the on Constitution appellants’ Relying action. on the missed controversy.” the existence of a case or Ins. Supreme Court’s decision Safeco Newkirk, Preiser Burr, 551 U.S. Co. (1975). A cen (2007), L.Ed.2d 1045 the district court component tral of the “case or controver violat- although concluded Sam’s Club sy” requirement standing, “which re FACTA, ed the violation was not -willful quires demonstrate the now- interpretation because Sam’s Club’s fact, of injury familiar elements causa objectively was not unreasonable. statute tion, and redressability.” Lance v. court Coff The district reasoned man, 1194, 167 439, 127 the statute—that Club’s (2007). L.Ed.2d 29 language only of the statute related to number, shortening of a card so credit mind, principles these re- With we only reasonably possi- seems labeled—“not quested supplemental briefing from the likely, rather at least for those not ble but parties prior argument to oral on the fol- (or to think philosophically (1) inclined about lowing appellants, issues: whether the at) (Oct. Congressional guess purpose.” having alleged damages, no actual “have ” 6.) court Order The district ‘injury fact,’ in Lujan suffered an v. De- emphasized that Club had “no also Sam’s 555, 560, Wildlife, 112 fenders of except wording of the guidance (2) bare (1992), 119 L.Ed.2d 351 in determining statute whether a ‘member- appellants suffered an whether have number’ as well as a ‘credit card’ or ship likely by “that is a injury to be redressed truncated.” ‘account’ number must be decision,” Ky. v. E. Wel- favorable Simon (Id.) 26, 38, Org., 426 96 Rights U.S. fare (1976), in of light appeal filed a Appellants timely notice dicta from our decision in Dowell v. Wells this court. to Bank, NA, 1026 Fargo F.3d Cir.2008) (“It necessarily II. Discussion does not follow that liability provision] from FCRA [the (1) assert that the district Appellants damages statutory are available where by that concluding court erred Sam’s Club prove damages.”). fails to actual willfully violate did FACTA the district to recuse on the judge parties that failed submitted briefs they opposing himself the case after disclosure of issues which took above appeal, positions. Appellants of interest. cross Hammer and White conflict On challenges Congress may legal court’s create argue Club the district that Sam’s statute, rights that it via invasion of which conclusion violated FACTA. Here, they argues standing also that lack Arti- to sue. as- appellants Club creates sert, standing by enacting III their claim. We U.S.C. bring cle 1681n(a)(l)(A), Congress taking position appellants § created a stat- brief that receipts that disclose utory right to receive maintain Article III standing bring their digits more than the last five no action. Thus, cardholder’s credit card number. considering parties’ After sub argue they suffered an in- appellants missions, appellants we conclude that do

jury-in-fact as a result Sam’s Club’s standing bring their claim. statutory violation sufficient to confer standing. opposition, Sam’s Club con- i. Injury-in-fact statutory mere fact of a “[t]he tends It is well established that actual “[t]he violation, any disconnected from real-world injury required by or threatened Art. Ill impact” not suffice to confer Article does may solely by exist virtue of statutes cre- Thus, standing. argues III Sam’s Club ating legal rights, the invasion of which appellants cannot maintain Seldin, standing.” creates Warth v. showing damages. absent some of actual 45 L.Ed.2d encourages interpret Sam’s Club also us to (1975) (citation omitted) (internal quo- liability provision requiring the FCRA omitted); tation marks see also Charvat v. proof damages precon- some of actual as a Union, Mut. First Fed. Credit recovering dition to actual or (8th Cir.2013). Notably, this lan- damages in order to “avoid serious Article guage is without limitation: the actual- III concerns.” injury requirement may be solely satisfied argument, After oral the United States legal right the invasion of a that Con- proceed- filed motion to intervene gress created. This is not a princi- novel ings supplemental to file a brief on the two ple standing.3 within the law of standing questions that posed we had 2403(a) By enacting 1681c(g)(l), U.S.C. parties. (per- U.S.C. Congress gave consumers mitting legal right the United States to intervene for a receipt point to obtain at the argument question on the sale of constitutional- action, showing no more than the last ity suit or five proceeding “[i]n court of the United ... consumer’s credit or debit card States wherein the constitutionality Appellants number. Congress of Act of contend that Sam’s affecting public right. the interest in Club invaded this is drawn Such is the “actu- question”). granted We al injury” alleged by the motion and the It appellants. subsequently consequence United States filed a of no appellants’ injury that Coleman, Realty Corp. injuries 3. See Havens cognizable v. 455 that are purposes for of 363, 373-74, 1114, standing by U.S. 102 S.Ct. enacting 71 L.Ed.2d Article III statutes which (1982) (holding legal rights.”); Corp. 214 that an individual Boesky, who create FMC v. 981, (7th Cir.1988) receives false (concluding information in violation of sec- 852 F.2d 993 804(d) Flousing plaintiff sufficiently tion of the Fair Act alleged has stand- that the the viola- ing bring regardless right a claim of whether the tion of a state-law "that in would itself injury satisfy violation results in injury require- actual to the indi- suffice to Article Ill's vidual); Corp., Edwards v. First Am. specific 610 F.3d ment” even in the absence of find- 514, (9th Cir.2010) added)); (holding ing 517 injury (emphasis Dry- that Real of actual Co., granted Estate Settlement Procedures Act den v. Lou Budke’s Arrow Fin. 630 F.2d 641, (8th Cir.1980) plaintiff rights judicial (explaining certain relief suffi- 647 cient they confer Article III even claimants "need not show that sustained though plaintiff damages stemming did not suffer actual dam- actual from the [Truth ages); Robey Shapiro, Cejda, Lending v. proved they Marianos & Act] violations before L.L.C., 1208, (10th Cir.2006) may 434 statutory damages F.3d recover the Act for”). ("Congress may expand range scope provides of also legal violation to plaintiff of a statute. avoid on the existence dependent D., Article III concerns. v. Richard U.S. Linda R.S. 1146, 3, 617 n. 93 S.Ct. appellants allege they Because have injury-in-fact that the (emphasizing actual, an individualized invasion suffered though no “even requirement is satisfied statutory they conclude that right, we statute”). without the injury would exist injury-in-fact require- have satisfied the Thus, appellants conclude that we standing. III ment Article to con- injury-in-fact sufficient alleged Redressability ii. standing. Article III

fer question appel- As to the of whether the sure, places Article III To be injury likely lants have suffered an “that is in types on the meaningful limitations decision,” by a to be redressed favorable judi Congress may define as terests that Simon, 96 S.Ct. we First, rights. party cially enforceable also answer in the affirmative. among must “be himself seeking review liability provision, per- Under FCRA’s alleges that he injured” the sense “willfully” who fails to comply son with his that defendants violated aggrieved FACTA is liable to the consum- Morton, 405 Sierra Club v. rights. See “any damages by er for actual sustained L.Ed.2d the consumer as a result of the failure or Franco, Inc., (1972); Steger see also damages of not less than and not $100 Cir.2000). (8th Such is F.3d $1,000.” more than 15 U.S.C. allege that it Appellants the case here. 1681n(a)(l)(A). § that contain num receipts their own was Referring provision in Do of 15 U.S.C. printed bers violation Bank, NA, Fargo we stated well Wells Second, “Congress may 1681e(g)(l). as dicta: only to sue based on empower individuals necessarily It does not follow from the injuries.” ‘personal individualized]’ statutory damages language cited Carter, 979, 989 Cir. In re fails to are available where 2009) n. Lujan, 504 U.S. (quoting A prove damages. actual reasonable (alteration original)). 112 S.Ct. 2130 require could still reading of the statute not, Congress may example, permit damages simply but sub- proof of actual abstract, “an self- individuals to enforce statutory rather than actual dam- stitute contained, ‘right’ to have noninstrumental calculating ages purpose for the procedures re the Executive observe damage award. 504 U.S. at Lujan, law.” quired dis- at 1026. For reasons 517 F.3d Again, po this limitation below, pos- we decline to follow cussed liability The FCRA ses no obstacle here. liability of the FCRA interpretation sible “[a]ny person states that who provision suggested in Dowell and instead provision any willfully comply require fails to with of the plain language that conclude subchapter with imposed ment under this recovery statutory permits provision to consumer is liable to that respect damages. in the absence of actual damages 1681n(a)(l)(A) § 15 U.S.C. consumer.” added). a Hence, liability permits liability provision (emphasis FCRA damages by “any actual authorize suits mem consumer to recover provision does not than damages of not less large, at but creates a ... or public $100 bers of the $1,000.” 15 U.S.C. more than the individual not nexus between sufficient added). 1681n(a)(l)(A) gress expressly statutory created a dam- (emphasis Nota- ages compensate that permissible these scheme intended bly, Congress described disjunctive, damages actual potential which indicates individuals for damages violations, a claim to re- bring resulting can from FACTA without that a consumer “of not less than statutory damages requiring prove cover individuals actual $1,000” Servs., an harm.”); more than as Beaudry and not v. TeleCheck $100 damages. Inc., (6th Cir.2009) (ex- for actual to a claim alternative 579 F.3d “ Statutory 1A Statutes and See Sutherland plaining damages’ represent that ‘actual 2009) (“The (7th § 21:14 ed. Construction an alternative form of relief’ under 15 disjunctive usually indicates al- use of the per- § 1681n and that “the statute U.S.C. those alterna- requires ternatives and recovery mits a when there are no identifi- separately.”); see also tives be treated damages”); able or measurable actual (“Our Charvat, Court ... 725 F.3d fact, Murray, 434 at 953. F.3d we actu- plaintiffs has held that need show single cannot locate a that interprets case violation, beyond statutory damages, al liability provision requiring as FCRA statutory damages.”). in order to recover something more than a violation reject Club’s invitation to fore- We “damages order to recover of not less statutory damages in the absence of close $1,000.” than and not more than $100 damages language actual when the By permitting consumer to recover liability provision dictates other- FCRA statutory damages under the FCRA liabili- wise. ty provision, Congress require did not pur- is consistent with the Our prove consumers actual themselves victims requirement. pose receipt of FACTA’s identity bring theft in order claim Congress prevent enacted FACTA “to violation the FACTA truncation re- theft,” identity Fair and Accurate Credit Therefore, quirement. we conclude that Act of Transactions Pub.L. No. 108- appellants’ against action Sam’s Club for Stat.1952, and the restriction on violating requirement FACTA’s printing more than the last five of a can be redressed the absence of a claim specifically card number is intended “to Simon, damages. for actual opportunities limit the number of for iden- 96 S.Ct. 1917. tity ‘pick key thieves to off card account Finally, we note that a recent decision information,” 108-166, S.Rep. No. at 13 by strong support the Ninth Circuit offers (2003). However, matter, a practical for appellants’ they claim that have Article violated, losses, when FACTA is individual bring III their claim. See if any, may be small. “That actual loss is Inc., Spokeo, Robins v. 413- quantify why small and hard to statutes (9th Cir.2014) (holding sat- Reporting such as the Fair Credit Act III standing require- isfied the Article provide damages for modest proof without alleging ments violation of his statuto- injury.” Murray Mortg. v. GMAC Cir.2006) ry rights seeking under the FCRA Corp., 434 F.3d added). statutory damages liabili- under the FCRA (emphasis showing ty provision without a of actual support reading We also find for our damages). See, the decisions of our sister circuits. Multi-Cinema, Inc., e.g., appellants Bateman v. Am. conclude that have satis- We (9th Cir.2010) (“Con- III requirements 623 F.3d fied the of Article stand- ing.4 that Sam’s willfully Club did not violate First, they argue

FACTA. that such judg- under Safeco B. Willfulness inappropriate ment was in light of the prior district court’s conclusion that Sam’s now turn to the merits. We As dis- Club violated the “clear” “unambigu- cussed, the district court concluded that language ous” receipt require- FACTA’s violated FACTA’s Sam’s Club re- ment, Second, § 1681c(g)(l). U.S.C. quirement by printing more than the last appellants contend that the district court appellants’ five credit num- card held them to an “impermissibly high stan- electronically printed bers on receipts de- proof.” dard of Finally, appellants argue spite the fact that those numbers were that the district court inappropriately re- However, labeled “member” numbers. lied disputed on facts and considered the appellants’ district court dismissed action enormity of potential damages in granting summary judgment, holding on that Sam’s contrast, a dismissal. In Sam’s Club ar- willfully did not Club violate the statute. gues that it did act wilfully because its purposes analysis, For the of our ac- we reading of objectively the statute was rea- cept ruling the district court’s that Sam’s sonable. Nevertheless, Club violated FACTA. we agree with the district court that the viola- observed, already As we have tion was not willful. person comply who fails to with FACTA’s grant This court reviews a of sum receipt requirement does not incur liability novo, mary judgment de applying the same for damages unless the violation is willful. standard as the district court. Naucke v. 1681n(a)(l)(A). 15 U.S.C. The Supreme Hills, City Park 284 F.3d Court has that a held violation becomes Cir.2002). “Summary judgment appro “willful” if it “knowing” is either or “reck priate when the evidence viewed in the Safeco, less.” 551 U.S. at light nonmoving par most favorable to the company 2201. A acts reckless disre ty presents genuine no issue of material gard of FACTA when its “action is not fact moving party and the is entitled to only a violation under reasonable read

judgment a matter of law.” Coates v. ing terms, of the statute’s but shows that Powell, (8th Cir.2011). 639 F.3d the company violating ran a risk of Questions of law “particularly appro are substantially greater law than the risk as priate summary judgment.” Team- merely sociated with a that was Bank, McClure, N.A. v. 279 F.3d careless.” Id. at In (8th Cir.2002). essence, the central inquiry focuses on

Appellants assert that “objective the district court Fuges reasonableness.” v. Sw. respects Servs., Ltd., (3d erred in in concluding several Fin. dissenting knowledge, 4. The author every asserts that we have our federal circuit court of "[i]gnor[ed] thirty-nine years appeals the last of Arti- plaintiff to have addressed whether a standing jurisprudence” holding permitted cle III statutory damages to recover un- that Hammer and White liability provision have Article III der the FCRA in the ab- standing bring support, their damages claim. sence of actual has answered in the Moreover, author cites score cases in which the U.S. affirmative. not one of these Supreme repeats Court liability unremarkable courts has concluded that the FCRA proposition provision that a must have suffered violates constitutional particularized injury-in-fact principles. jurisprudence concrete and supports Federal satisfy standing. order to holding respect Article III our with to Article III stand- infra dissent, repeating ing. Part I.A. But it bears that to

Cir.2012). may a con- Thus, though reading a dis- even such be even when court interpretation trary of of identi- party’s purposes preventing a to the agrees with FACTA, unless impose liability ty it not card may theft or credit fraud. We conclude an the statute in party interpreted the has the reading that Club’s of statute Sam’s objectively text,” manner. See statutory unreasonable in “has foundation the a 69, 127 Safeco, 551 at S.Ct. U.S. that though acknowledge even we the not (concluding that violation was Safeco’s may be deemed erroneous under reading “reading of the stat- reckless because its 69-70, Safeco, the at law. erroneous, ute, objectively was not albeit S.Ct. 2201. unreasonable”). the Our is bolstered lack conclusion guidance in of available to determining whether an authoritative unreasonable, objectively At the was filed terpretation is Sam’s Club. time this suit a the “has guidance we assess whether in no had been October in statutory text” or wheth foundation the by appellate regulatory courts or rendered party interpreting the statute “had er agencies question on the of whether a guidance the benefit of from the courts of number,” card” “membership like “credit appeals” regulatory agencies or federal number, or must be shortened “account” e it might away “that have warned from the pursuant to th statute. To this court’s 69-70, it took.” at 2201. view Id. only one circuit knowledge, decision has read the in an party When has statute meaning referenced the “card number” of objectively manner, reasonable we need in the context of willfulness under FACTA. relating not consider to the party’s facts Co, Straaten v. Shell Oil Prods. Van subjective assessing intent in willfulness. LLC, Cir.2012). In 678 F.3d 486 that 70, 20, 127 n. Id. case, recognized the Seventh Circuit regulatory of a defi “absence or Applying analytical framework ” number,’ phrase nition of ‘card but in Safeco, set forth we conclude that Sam’s interpreting that the term concluded was interpretation of FACTA’s Club’s unnecessary alleged because the FACTA requirement applicable as not to the mem violation was willful. Id. 489-91. designation bership receipts on the did not event, And came after in decision objectively amount unreasonable appellants filed suit. also fail Appellants noted, reading of statute. As we FAC- identify any authority avail regulatory provides: TA able Club which demonstrated to Sam’s its person accepts credit cards or [N]o printing receipt containing of a customer’s debit cards for the transaction of busi- membership includes number that more ness shall more than the last 5 print digits than the last five of the customer’s digits expira- of card number or credit card violated FACTA. number provided upon any receipt tion date point at the cardholder the sale note, reject appellants’ On final we transaction. commit- assertions that the district court analysis ted legal various errors its § 1681c(g)(l). 15 U.S.C. Given this lan- contrary, To the willfulness. record reasonably guage, Sam’s could have Club correctly that the court establishes district only prohibits assumed the statute inquiry on whether focused its printing more than the last five number, objec- reading of the was the credit so A Club’s statute card labeled. tively reasonable accordance with the company literal-minded executive could manner, reasonably the statute set forth read standards Safeco. interpre- conclude that Sam’s Club’s who all We knows the relevant of a facts case.” applicable as not to a In re Emp. Sys., tation FACTA Kan. Pub. Ret. 85 F.3d (8th Cir.1996). membership printed number on custom- Because a “judge “has a foundation in the statu- presumed er’s is impartial,” be text,” 69-70, tory Safeco, 127 party seeking recusal “bears the substan- objectively and is therefore not tial proving burden of otherwise.” United Denton, Accordingly, unreasonable.5 we affirm the States 434 F.3d Cir.2006) (citation omitted) (internal appellants’ dismissal of action on the quota- omitted). ground that Sam’s Club’s viola- tion marks A “relationship be- tion not party judge’s was willful. tween a and a daugh- son or per ter not se judge’s does necessitate a Appellants’

C. Denial of Motion to Rather, disqualification. the determina- Recuse conflict tion of whether a given exists in a factually situation is bound.” See In re Finally, appellants argue that the dis- Emp. Kan. Pub. Sys., Ret. 85 F.3d at 1364 judge recusing trict court erred in not (citations omitted). ground himself from the case on the attorney his son was an in a law firm that We conclude that appellants have (GE), represented General Electric not satisfied their burden of showing that company partners with Sam’s Club required recusal was under 28 U.S.C. financing credit to certain Sam’s Club cus- 455(a). § appellants allege While that the Appellants tomers. contend that judge became aware of the potential con judge’s failure to recuse violated 28 U.S.C. flict with long judge GE before the dis 455(a) § average person because an know- it, closed appellants adequate do not offer ing the surrounding relevant facts the case support for this claim. appellants The do reasonably question would judge’s im- point anything not in the district court’s partiality based on his son’s connection to orders or the record that convincingly GE. judge shows that deliberately con “The denial of a motion to re cealed a conflict from parties. More cuse is reviewed for abuse of discretion.” importantly, alleged the nature of the con Ruff, remote, United States v. 472 F.3d 1046 flict “simply speculative, too (8th Cir.2007). judge A contingent” must recuse him give rise to a situation in any proceeding self “in impar judge’s impartiality which his which the might rea tiality might reasonably be questioned.” sonably questioned by be a member of the 455(a). 455(a), § public. U.S.C. Under section Emp. re Kan. Pub. Ret. judge’s this court considers “whether the Sys., 85 F.3d at 1362. record does impartiality might reasonably ques lawsuit, and, party be show as a GE by average person observes, tioned on the street Sam’s Club there is little realis- 1681n(a)” Having recklessly purposes § concluded that Sam’s Club's inter- or pretation c(g)(l) objec- of 15 U.S.C. company’s reading when the of the statute is reasonable, tively we do not consider evi- reasonable); objectively Levine v. World. Fin. put by appellants dence in the record forth Bank, Network Nat’l allegedly shows an intentional bad (11th Cir.2009) ("Safeco makes that evi- clear faith violation of FACTA Sam’s Club. See subjective support dence of bad faith cannot Safeco, U.S. at 70 n. 127 S.Ct. 2201 finding company’s ‘a willfulness ... when the (stating subjective that evidence of bad faith objectively of the statute is reason- should not be taken into account "in deter- ”). able.' mining company knowingly whether acted much shoppers the suffered so allegation party will become a that it possibility

tic psycho other night or sleepless as a only company the that Sam’s Club given plaintiffs failed the logical harm. Unlike with a appellants provided to have alleged USA, Amnesty International Clapper in receipt. electronically-printed questioned U.S. -, -, 133 S.Ct. Furthermore, dispute do not appellants (internal (2013) quotation judge’s that the son L.Ed.2d 264 Club’s assertion case, omitted), not even claim to shoppers in this and that the do way involved is in no ap- costly and burdensome law firm has ever undertaken lawyer in that “have no Ap- from the any capacity. protect” case in themselves in this measures to peared grasping shoppers to be face. The they supposedly counsel seems pellants’ risk standing. in the in order III blowing assuredly wind lack Article straws most this case further. litigate court acted that the district conclude

We Injury in Fact A. appellants’ motion to denying in properly only appearing shoppers’ The basis recuse. court, majority recognizes, is in federal statutory violation: “Sam’s a harmless III. Conclusion right to shoppers’ “legal Club invaded” reasons, foregoing we affirm. For the point at the of sale show- obtain a five of the more than the last ing no RILEY, Judge, dissenting. Chief card number.” credit or debit consumer’s expansive reading of Relying on an sure, invasion of a at 498. To be Ante Seldin, 422 in single line Worth injury law. But it statutory right is an 490, 500, established,” as the ma- far from “well (1975), majority unnecessarily decides id., asserts, trivial jority that this standing question III Article difficult injury shop- violation is an in fact. circuit, leading to in our impression first injury damage, without pers have suffered I re- ruling on the merits. an unsound ordinarily not wrong” which “will legal “[a] dissent. spectfully no harm resulted a lawsuit because sustain Dictionary 856 from it.” See Black’s Law I. STANDING ed.2009) (9th injuria absque (defining plain- majority acknowledges, the As the added). damno) long- “It is a (emphasis allege actual in this case “do tiffs that there in civil law standing principle added). (emphasis damages.” Ante at 496 monetary recovery unless can be no “identity theft” case contains putative This v. Nu- has suffered harm.” Mira plaintiff identity actual theft. The no trace of Corp., 107 F.3d Measurements clear E. shoppers Steven plaintiffs, Sam’s Club also, (7th Cir.1997); e.g., Pierce v. see (shoppers), D. Hammer and Michael White Co., F.2d Ramsey Winch receipts containing their allege do not Cir.1985) damage cre- (“[Ijnjury without information were ever risk credit card By re- right compensation.”). ates no identity thieves. exposure to would-be injury fact, Supreme Court quiring lawsuit, apparently receipts Until this incorporates III that Article recognizes shoppers’ possessions, never left principle: this traditional safely receipts are ensconced now the injury in fact unrelated to An interest Even if credit card record. the sealed give receipts is insufficient on secured information listed standing. anxiety, there is no cause could somehow Natural Res. v. U.S. ex rel. Since Agency Story Vt. Justice decided Webb Stevens, 1838 and Justice Powell authored inWarth added). (emphasis L.Ed.2d 836 the standing doctrine has become more protective judicial branch’s thirty-nine years the last Ignoring limited role in our tripartite system of III ma- standing jurisprudence, Article government.7 days Gone are the when the extraordinarily jority adopts an broad federal rarely courthouse door was closed Supreme of the Court’s 1975 dic- “ plaintiffs, no matter how attenuated or tum in that actual or threat- ‘[t]he Warth See, speculative supposed their injury. injury required by may Art. Ill ened exist 343, e.g., Casey, 3, Lewis v. 518 U.S. 353 n. solely by creating legal virtue of statutes 2174, (1996) 116 S.Ct. 135 L.Ed.2d 606 rights, the invasion of which creates stand- ” (“This would perhaps have seemed like Warth, 422 ing.’ (quoting Ante 498 Cohen, good law at the time of v. Flast[ 2197). 500, Supreme U.S. at 95 S.Ct. The 83, 1942, 392 U.S. 88 S.Ct. 20 L.Ed.2d 947 actually Court has never held an un- (1968)], opinions but our later have made plaintiff standing by harmed had virtue of it explicitly clear that Flast erred as statutory a bare violation.6 suming that assurance of ‘serious and ad majority justifies adoption its of this versarial only treatment’ was the value theory actual-injury requirement that “the protected by standing.”). may solely by satisfied be invasion of a ” legal right Congress years, that created on the In recent Supreme Court has theory a strongly basis this “is not novel suggested [one] have a case III, standing.” within the law of Ante at 498 under Article a must have (footnote omitted). aged theory This only legal suffered not the violation of a (the majority suggests. right “injury” “injury fact”), even less novel than the of but circuit, (the fact”). See, Riding Joseph Story Justice wrote also a factual harm “in 1838, “Actual, Int’l, perceptible damage e.g., is not Lexmark Inc. v. Static Control Inc., indispensable Components, U.S. -, -, as the foundation of an ac- 1377, 1386, tion. inquiry The law tolerates no farther 188 L.Ed.2d 392 (“The plaintiff than whether there has been the violation must have suffered or be Co., right.” Mfg. imminently of a Webb v. Portland threatened with a concrete and (D.Me.1838) (No. 506, 17,322). ”); ‘injury F.Cas. particularized fact.’ Monsan- EPA, 497, 6. ”[T]he Massachusetts v. 549 U.S. law of Art. Ill is built on a 1438, (2007), 167 L.Ed.2d 248 for exam- single separation basic idea—the idea of ple, Supreme conspicuously Court relied powers.” light overriding In the this and on the harm Massachusetts was in suffer- keeping fact time-honored concern about ing, statutory not on the bare violation of Judiciary's power proper within its consti- complained, which Massachusetts as the basis sphere, put tutional we must aside the natu- finding injury for in fact: "Because the urge proceed directly ral to the merits of portion Commonwealth owns a substantial important dispute and to it “settle” for "rising property" the state’s coastal seas efficiency. the sake of convenience and In- already begun to swallow Massachu- stead, carefully inquire we must as to land,” setts’ coastal has al- "[Massachusetts] appellees have their whether met burden leged particularized injury capacity a in its as establishing injury per- their claimed 522, a landowner.” Id. at 127 S.Ct. 1438 concrete, sonal, particularized, and other- (internal omitted). quotation cognizable. judicially wise 820, (footnote omitted) 811, Id. at 117 S.Ct. 2312 Byrd, In Raines v. 521 U.S. 117 S.Ct. (1997), (quoting Wright, example, Allen v. 468 U.S. (1984)). Supreme explained: Court 104 S.Ct. L.Ed.2d 556 that Con Farms, proposition uncontroversial Seed to Co. Geertson statute, can, legal through 177 L.Ed.2d create gress 130 S.Ct. (2010)(“Such ... are sufficient- harm. If there is remedy harms for a factual injury-in-fact satisfy the Congress ly injury, concrete an act of damage without standing analy- constitutional prong Article III case where generate an can added)); Agency, Vermont (emphasis sis.” Lu be none. See there would otherwise (defining 771, 120 S.Ct. 1858 529 U.S. at For 112 S.Ct. 2130. jan, 504 U.S. “a harm that is both “injury in fact” assign can Congress example, imminent, not con- or and ‘actual ‘concrete’ experiences a person to the harm value ” (emphasis add- jectural hypothetical’ or racially segregated in a com living from Arkansas, 495 ed) (quoting Whitmore from company faces munity private 1717, 109 L.Ed.2d 149, 155, government-owned against competing (1990))); Election Comm’n Fed. 135 v. Metro. company. See Life Trafficante 1777, 11, 24, 141 Akins, 118 S.Ct. 524 U.S. 208-12, 364, Co., 205, 409 93 S.Ct. Ins. (1998) (“[Wjhere a harm is L.Ed.2d 10 (1972); Ky. 415 Hardin v. L.Ed.2d 34 shared, concrete, widely the Court though Co., 1, 6, 651, 19 88 S.Ct. 390 U.S. Utils. ” add- ‘injury (emphasis in fact.’ has found (1968). L.Ed.2d 787 ed)). justiciable Congress can create Whether Notably, Lujan in Wild- Defenders of pres there is no real harm injuries where 2130, 578, 555, 112 119 life, 504 U.S. extremely an difficult constitutional ents (1992), Supreme the Court 351 L.Ed.2d Foods, ConAgra See Wallace v. question. narrowly, explaining Congress’ read Warth Inc., Cir.2014). (8th Inc., 1025, F.3d 1032 standing by statute is to create power Supreme Court has question It is a “elevating legally to the status of limited to answered, today—neither and—until never concrete, inju- injuries de cognizable facto fact, recently court.8 In our court had our in previously inadequate ries that were in question’s difficulty Wal recognized “actual; existing in law.” De facto means to answer based on stat lace and declined Dictionary, supra, at Black’s Law fact.” added). utory and the canon of constitu grounds According to Lu- (emphasis 479 2012, avoidance.9 See id. And for the limited tional jan, stands Warth’s dictum Charvat, 498, citation, (empha- standing.” 725 F.3d at 822 majority’s ante at Despite the 8. Union, added). Credit 725 v. Mut. First Fed. sis of Charvat Cir.2013), (8th 822 that case neither F.3d adjudicating not a method of majori- 9. "The canon is supports the question nor decided the means,” Charvat, questions by other did no constitutional ty’s our court answer. Martinez, 543 U.S. 125 principle that a Clark v. than follow the settled more (2005), 734 so Wallace does injury” 160 L.Ed.2d constitutes in- factual "informational answering majority providing preclude the from jury pursuant to a statute not in fact 823; see, question today (although Wal- constitutional this real harm. Id. at redress for so). doing By Akins, logic against lace counsels e.g., 118 S.Ct. 1777. 's however, token, Co., majority's con- the same Dryden Budke’s Arrow Fin. v. Lou Cir.1980), ruling today our cannot affect stitutional similar informa- F.2d Wallace, statutory interpretation involving injury a defendant who court’s case tional Clark, 543 U.S. at plaintiff by providing 747 F.3d at 1032. actually in- harmed every (refusing stat- to "render incomplete id. at 125 S.Ct. information. See correct or chameleon, 643-44, meaning subject Contradicting majority’s ute a its presence or absence change depending on the analysis, recognized, "Be- standing Charvat in each individual require- of constitutional concerns injury a constitutional cause in fact is States, case”); ment, v. United grant standing see also Mader Congress may to an (stat- (8th Cir.2011) (en banc) F.3d would not otherwise individual who ral”; here, granted Court certiorari with no more Supreme than precise question on this argument heard five printed digits), Kennedy Justice re- Corp. v. Ed First American Financial marked: U.S. -, -,

wards, you circular for to say he was Dot's curiam), (per 183 L.Ed.2d denied something he is entitled to. im yet ultimately dismissed the writ as The question inju- is whether there is an evidently providently granted, because ry. requires inju- The Constitution an legal injury.10 a purely case did not involve ry.... you say If he were was enti- Although justices did not issue a therefore, tled to it and there is an American, questions decision in First their injury, just—that’s just that’s circular. argument difficulty reveal the Id. at 44:54. raised in both Ameri- standing issue First Regarding argu- this case. can and correct, If majority the federal injury that “violation of a statute is ment courts will find themselves deciding fact,” Chief Justice Roberts said: strange “cases” indeed. Without fac- thought I ability would have would be tual limits on its to create injury say, And injuries, called in law. when we Congress could transform the have, all ... our cases implementers majoritarian courts into required injury fact, (the what I economic social policies proper and branches) understand that to be in contradistinc- role of the elected rather than injury you tion to in law. And when tell majoritarian against bulwarks excess.11 you’ve got you me all that or all that See, -, e.g., Clapper, 568 U.S. at statute, plead want to is violation of the (“The S.Ct. at 1146 of law Article III injury that doesn’t sound like standing, separation-of- which is built on fact. powers principles, prevent serves to Am., the 32:25, at Argument Oral First judicial process being from at -, usurp used to (emphasis 132 S.Ct. branches.”). added). powers political the Responding argument— to an Congress give would be able to one’s paralleled by by shop one advanced the co-worker, neighbor, political adversary pers accepted by majority, and the ante at plaintiff injured by right way the the to sue if one fails to live the 498—that was be ing something majority Congress “denied he the thinks entitled to” one [wa]s (there, expert’s question “another refer- should.12 I whether the Supreme untainted it, ing prior then-Judge put we are bound Scalia law "[T]he decisions of As of standing roughly panels). restricts courts to their tra- protecting ditional undemocratic role of indi- Supreme 10.The Court seems to have discov against impositions viduals and minorities of argument ered at that the case turned on a majority, and excludes them from the dispute particular factual about whether a prescribing even more undemocratic role of fact, injury harm was an rather than on the how the other two branches should function legal question Congress whether could create majority in order to serve the interest of injury an in fact without actual harm. Chief Scalia, The Antonin Doctrine itself.” Standing of argument, you Justice Roberts said at tell "[I]f Sepa- as an Essential Element of what this about me case is is whether or not Powers, ration 17 Suffolk U.L.Rev. of fact, you’ve injury in ... shown it's not a (1983). case, significant your prove and client has to 34:02, Argument theory, majority’s shoppers at trial.” Oral 12. Under First Am., at -, (No. standing solely “Congress gave 567 U.S. 132 S.Ct. at 2537 because 10-708), legal right http://www.oyez.org/ available at consumers to obtain a cases/2010-2019/2011/2011_10_708. showing point no more than the at the of sale open to the at issue here is ju The statute injury in carefully crafted Court’s fact of- interpretation easily eminently circumvented reasonable can be so risprudence See, joined by Earth one opinion e.g., prior panel Summers fered in a by Congress. Inst., 129 S.Ct. today’s majority: 555 U.S. Island member of (2009) (“[T]he require 1142, 173 L.Ed.2d 15 U.S.C. language [in This floor of in fact is a hard injury of ment 1681n(a)(l)(A) clearly provides ] be re that cannot jurisdiction Article III statutory damages is avail- award added)). (emphasis by statute.” moved an award of an alternative to able as argue damages. plaintiffs actual Avoidance B. Constitutional fact overlooked this district court event, I no reason to decide see was, therefore, summary judgment and question in complex constitutional such disagree. It does inappropriate. We rule, “repeatedly It is a this case. bedrock the cited lan- necessarily follow from “ ” debate,’ that fed ‘beyond affirmed” statutory damages are avail- guage “ ‘grave deciding avoid eral courts must actu- prove fails to able where ” questions’ doubtful constitutional damages. A reasonable al by adopting a reason possible whenever proof require could still the statute interpretation poten of a able alternative substitute damages simply actual but v. United tially suspect statute. Jones damages statutory rather than actual 227, 239-40, States, 119 S.Ct. 526 U.S. calculating the purpose dam- (quoting Ed 143 L.Ed.2d 311 age award. Corp. DeBartolo v. Fla. Coast ward J. Gulf Bank, NA, Fargo Dowell v. Wells Council, Trades Bldg. & Constr. curiam). (8th Cir.2008) 1024, 1026 (per rejecting panel’s the Dowell Rather than (1988), Attorney and U.S. ex rel. Gen. does, majority I analysis as the reasonable 408, Co., 366, 29 Hudson 213 U.S. Del. & interpretation of would follow Dowell’s also, (1909)); 527, L.Ed. 836 see S.Ct. 53 1681n(a)(l)(A). a offering § Instead of v. TVA, 288, 297 U.S. 345- e.g., Ashwander to a difficult constitutional doubtful answer (1936) 466, 48, L.Ed. 688 56 S.Ct. I this case on the question, would resolve J., (Brandéis, concurring); Union Pac. ground that the unexceptional settled and DHS, 885, 738 F.3d 892-93 R.R. Co. standing III unless shoppers lack Article Cir.2013). confronting than the “Rather likely provide to success on the merits is question whether difficult constitutional 561, Lujan, redress. 504 U.S. See floor through can drill hard Congress th[e] reading Dowell’s of S.Ct. 2130. Under injury injury by creating an of in fact statute, hope no of shoppers the (i.e., statutory requir cause of action law a some sort of actual redress without personally was ing showing no “ economic) harm. necessarily harmed),” (though not ‘follow actually I would and ” actu- allege failed to Wallace, shoppers Because the 747 F.3d traditional rule.’ th[is] omitted) harm, standing.13 III (footnote they al lack Article (quoting Union 893). id. Pacific, F.3d at 500, misplaced Robins ante at because the consumer's credit or see last five theory card number.” Ante at 498. This a present debit Circuit with diffi- did not the Ninth limiting reducing any principle, lacks internal question could be that cult constitutional nullity. III to a

Article reading of by adopting an alternative avoided majority’s Spok reliance on Robins 13. The eo, Inc., 409, (9th Cir.2014), 412-13 States, Dowell, 1137, majority em- 450 U.S.

By rejecting shoppers’ (quoting 67 L.Ed.2d 275 Cannon v. braces 1681n(a)(l)(A), Chi, 677, 696-97, will lead to results § which Univ. have intended. Accord- Congress (1979), cannot 60 L.Ed.2d 560 and the stores are liable ing shoppers, to the States, Callanan v. United 364 U.S. statutory damages of dollars for billions (1961)). 81 S.Ct. 5 L.Ed.2d 312 any shoppers, evidence without “Congress legislates against the back- were they represent, wish to the class ground standing.” ... Bennett v. large at all. From small to retail- harmed Spear,

ers, interpretation could eas- shoppers’ (1997).14 Congress pre- A retailer earn- ily bankruptcy. result in sumably expected the federal to courts per average than ing less $100 require factual harm Article under Ill’s penalty per receipt, afford a could not $100 injury in fact It makes prong. sense $1,000. The district court took let alone 1681n(a)(l)(A) Congress § to per- intended damages “would exceed the fact $1 suffering mit real harm consumers from penny’s the absence of a despite billion retailer’s failure to truncate credit card injury,” sign Congress as a “that worth of statutory damages numbers to recover they wrought.” knew not what probably minimal even if actual damages were omitted). (Internal quotations But it quantify. difficult to does not make Congress sense assume intended to con- statute, writing Congress But in need fer windfall on consumers—like the already what is obvious from not restate face no shoppers this case—who reason- and the federal courts’ Constitution harm, able likelihood of let alone actu- jurisprudence. “Congress is constitutional shoppers’ receipts al harm. These secured body,’ it ‘predominantly lawyer’s identity possibly could not lead theft ‘to appropriate courts] for assume [the Congress prevent. wanted the FACTA people’s] representatives elected [the ” context, not pre- ... the law.’ Albernaz v. United our court should know record, 1681n(a)(l)(A). brought merely Whether a bare lurk in the neither injury gives rise to an in fact was not upon, violation nor ruled are the attention of the court open question Circuit. See Ninth having decid- not to be considered as been so ” 514, Corp., v. First Am. Edwards precedents.' Cooper In- ed as to constitute (9th Cir.2010). open question But it is an for dus., Servs., Inc., 157, Inc. v. Aviall 543 U.S. case, and "the hallowed our circuit in this 170, 577, (2004) 160 L.Ed.2d 548 125 S.Ct. preclude us rules of constitutional avoidance” Fall, 507, 511, (quoting Webster v. 266 U.S. answering question from this difficult without 148, (1925)). S.Ct. L.Ed. 411 And even if 900; necessity. Pacific, Union 738 F.3d at precedent on these other cases did constitute also, Clark, 381, e.g., 543 U.S. at 125 S.Ct. see issue, standing they the constitutional which 716. not, independent- do our court would remain Equally misplaced majority’s is the reliance ly Supreme bound to follow the Court and the fact that other circuits—without ex- on offering unnecessary answers to diffi- avoid standing— pressly considering constitutional questions. cult constitutional [plaintiffs] "permitted to recover statuto- 1681n(a)(l)(A) ry damages [§ ] under in the Though Supreme Court in Bennett fo- damages.” Ante at 501 n. absence of actual standing, prudential U.S. at cused on see 520 standing constitutional "was not 4. Because 163, 1154, places even 117 S.Ct. Article III cases, argued ... or decided in these it is Congress’ ability to create clearer limits on sup- they provide absolutely no axiomatic that remedies, see, e.g., Ass’n Data Process- civil port majority's "position.” United for the” Camp, ing Orgs., Inc. v. 397 U.S. Serv. Bruguier, 735 F.3d States v. " (1970). Cir.2013) (en banc). 'Questions 25 L.Ed.2d 184 which S.Ct. congressional clear intent and legislators elected thwarts people’s sume truly card- they wrought” impossible or intended makes it for harmed not “knew what statutory damages of all sizes bankrupt retailers holders to recover potentially any they in the absence of should be entitled. In ac- descriptions which principles harm. cordance with well-established construction, I statutory would instead avoidance “is The canon of constitutional unambiguous follow the clear and text of competing choosing a tool for between § 1681c(g)(l), giving Congress’ effect to statutory of a plausible interpretations expressed provide intent to a reme- plainly text, presump- on the reasonable resting dy cardholders who suffered real intend the alter- Congress tion that did not harm. raises serious constitutional native which The canon is thus a means of

doubts. Statutory A. Text intent, congressional giving effect Clark, 381-82, subverting it.” 543 U.S. at questions All construction added) (citations (emphasis 125 S.Ct. begin step: the same first with omitted). government, intervening in See, e.g., of the statute. Hawaii Office theory injury support shoppers’ of the 163, 173, Affairs, Hawaiian 556 U.S. fact, equals injury concedes that law (2009). 173 L.Ed.2d 333 panel’s interpretation plau- “is Dowell clear, When the text of the statute is That be the end of this sible.” should ‘judicial step inquiry first “is also the last: appeal.15 ” complete.’ Conn. Nat’l Bank v. Ger main, 503 U.S. II. MERITS (1992) (quoting 117 L.Ed.2d 391 Rubin v. Setting majority’s precarious aside the States, 424, 430, 101 United theory, majority’s I constitutional fear the (1981)). The text at strays resolution of the merits from the provides: issue unambiguous statutory Misreading text. person accepts credit cards or [N]o remedy provision applicable to the debit cards for the transaction of busi- claims, shoppers’ FACTA print ness shall more than the last 5 1681n(a)(l)(A), to confer expira- of the card number or the majority of actual harm absence leads upon any receipt provided tion date (1) unpleasant to an choice: either follow point at the cardholder sale or FACTA, plain text of 15 U.S.C. transaction. § 1681c(g)(l), and authorize unharmed added). § 1681c(g)(l) (emphasis Sam’s Club credit-cardholders to recover 15 U.S.C. only disproportionate damages, prohibition applies receipts misread This “to parts preclude electronically printed,” other of FACTA to such that are not “trans- damages even those who are harmed. actions which the sole means of record- for majority or By taking path, ing the second the a credit card debit card account proce My analysis prejudice. and the This 15. of Article III miss case without appropriate when a constitutional avoidance leads me to dissent dure is the course district judgment. judgment than concur in the Unlike court enters in a case in which it rather See, Stewart, jurisdiction. e.g., majority, Burton v. which the district court’s lacks affirms 147, 149, 793, 56(a) grant summary judgment of under Rule 549 U.S. 127 S.Ct. 166 L.Ed.2d (2007) curiam); entry judgment (per prejudicial and of in favor of 628 Rosebud Sioux Tribe 1031, Club, McDivitt, 1035 Cir. Sam’s I would vacate the district court’s rulings and remand with instructions to dis- 2002). 511 imprint points Court established two of law rele- by handwriting or number is (1) a appeal: § vant to this “willful”violation 1681c(g)(2). Id. of the card.” copy includes a of FACTA “reckless disre- spoken hardly could have Congress gard” requirements, its a viola- of five— Only five—the last plainly. more premised “objectively tion on an reason- any credit or debit card number digits of reading able” of the FACTA cannot be anywhere on electroni- may printed be 52, 69, 20, at 70 n. “reckless.” Id. is true whether cally printed receipt. This reasonable, objectively 2201. S.Ct. To be num- are labeled “credit card digits reading must have “a foundation in the “Member,” #,” la- ber,” or not “Account 69-70, statutory text.” Id. at 127 S.Ct. la- Congress all. Had intended beled at If “less-than-pellucid,” that text is matter, Congress easily could bels to guidance may authoritative the absence of digits than the last 5 of (e.g., said so “more analysis.16 also affect the reasonableness labeled”). Instead, card number so 70, 2201. But a Id. at terms, unequivocal pre- Congress spoke with the text pellucid which is inconsistent just it meant and sumably saying what statute, unsupported by any authori- exactly what it said. See Conn. meaning guidance, tative and at odds with the obvi- Bank, at 112 S.Ct. Nat’l 503 U.S. statute, purpose objectively ous of the task, then, sole is to 1146. Our court’s 69-70, unreasonable. See id. 127 S.Ct. plain language enforce imaginative reading 2201. Sam’s Club’s “according § to its terms.” Jim- c(g) squarely category. falls into this Accord- Quarterman, 555 U.S. enez Club, ing identify- all manner of (2009). By L.Ed.2d information—indeed, ing every single let- than the last 5 of the printing “more card, including on a credit ter and number “any receipt” on “electroni- card number” name, number, the holder’s the account plainly violated cally printed,” Sam’s Club code, expiration security 1681c(g). long on a so printed date—could be as the information was mislabeled or not Objective B. Reasonableness so, to the according labeled at all. Not unambiguously pro- Because the statute plain text of the statute. No reasonable num- printing many digits too hibits statute, majority’s reader of the even the ber, it not ob- regardless labeling, was executive,” ante company “literal-minded to read jectively reasonable Sam’s Club think could otherwise. into the statute. labeling requirement the court’s strains to direct Sam’s Club Carolina,

See, v. North e.g., Alabama number,” insisting focus to the term “card 2295, 176 L.Ed.2d 130 S.Ct. cannot a “card “membership number” be (2010) (“We do not—we cannot—add number,” from the in order to distract statute.”). provisions to a federal Perhaps the digits.” decisive term: “5 open in the abstract is Company Amer- term “card number” Insurance Safeco Burr, interpretations, but multiple reasonable ica v. (2007), prohibit printing card Supreme the statute does not reading should cut majority today supporting anee the stores’ turns on its 16. The Safeco by giving Sam’s Club the benefit of way head Sam’s Club’s because it means the other guidance though missing authoritative even unambigu- reading in the has no foundation statutory "less-than-pellucid,” text is not any extrastatutory ous text or in Safeco, 551 U.S. at 127 S.Ct. 2201. See guidance. Here, guid- at 501-02. the absence of ante numbers; An to a prohibits printing digits it of a individual able obtain member- (1) number and a member name has ship matters is how card number. What adequate engage information to a con- many digits printed are on the likely The fidence scheme. most scenar- digits whether those make receipt, and io would be one where individual of the card num- up sequential part some attempt duplicate would to obtain card explained, Circuit ber. As Seventh compromised on the account. The sub- essay a definition of ‘card “we need not ject previously could then use a avail- matter, original number’ as an because we attempt open able credit line or to a new why anyone should care how the can’t see credit line on a account. member[’]s precise term is defined. A definition does long as the contains not matter as added). To (Emphasis signifi- counter this identity too few to allow theft.” risk, report cant recommended “ob- Co., Van Straaten v. Oil Prods. Shell scuring]” all membership numbers—not (7th Cir.2012) (second F.3d em- simply duplicated those credit card added). phasis printed every The stores both sales and refund re- numbers—“on theft, single digit required identity ceipts.” reading no reasonable

practice FACTA Yet, shoppers as the discovered several would allow. years they later purchases when made us-

ing their membership/credit cards at two stores, different Sam’s Club Sam’s Club C. Willfulness Instead, ignored warnings. these internal Because the stores’ was not ob- shoppers receipts listing both received reasonable, jectively it question fact membership their names and numbers willful, whether the stores’ violation was (i.e.,.all unique digits eleven of their credit (with and the shoppers standing bestowed numbers)-—-precisely the information re- by majority) presented more than quired, according to Sam’s Club’s internal enough question evidence to this submit unit, security a previously “use available 56(a). jury. See Fed.R.Civ.P. attempt open credit line or a new [one].” early As In one Sam’s Club’s late October one week after the experts case, fraud that membership shoppers warned commenced this a WalMart and credit numbers differ employee point-of- should because sent an e-mail to senior handled—well, way membership “the personnel subject got in- sale with the “We trouble, cluding printing receipts, right on on City,” is less here Member warn- secure than how a ing emergency.” credit card number of a and terrible “terrific added). (Emphasis would be handled.” Yet Sam’s Club failed explained The e-mail , mitigate admittedly “unnecessary using gener- the member number to despite warnings. risk” numerous good ate the card number was “not [be- security an internal unit issued a there’s now a federal law stating cause] report, addressing “top-level only print issues” that we can the last four [sic] personal “where customer and associate digits of account number on the re- added). compromised ceipt.” (Emphasis information could be inten- Printing too tionally said, “top-level many digits, or otherwise.” The first the e-mail resulted “a “Membership dangerous remedy, issue”: numbers are not situation.” aAs the e- in a “reissuing handled manner that would minimize mail recommended the [mem- possibility being bership/credit] of the account number cards with a random non- compromised.” report immediately, warned: derived account number ... sooner,” not consider “we do because if KMAK, Plaintiff-Appellant Thomas completed.” until this is secure these cards added). course, Sam’s Club Of (Emphasis to achieve the failing for be faulted cannot COMPANIES, AMERICAN CENTURY than im- acting sooner task impossible INC., Defendant-Appellee. deliberately retailer mediately, but improve months to than three more waited No. 13-1530. unique each continuing print security, out of a identity Appeals, theft digit required United States Court holi- disrupting profitable Eighth desire to avoid Circuit.

day sales. Submitted: Feb. 2014. evidence, a reasonable on this Based Filed: June 2014. acted jury easily find Sam’s Club could statutory duty,” disregard of “reckless

Safeco, 551 U.S. “ unjustifiably high risk of running ‘an known or so obvi

harm that [was] either ” known,’ be[en] that it should [have] ous Farmer (quoting

id. Brennan, 825, 836, 114 S.Ct. (1994)).

1970, 128L.Ed.2d 811

III. CONCLUSION judiciary’s limited role

Mindful of III, join majori- Article I cannot

under unnecessary of a difficult

ty’s resolution Relying on Do- question.

constitutional

well, the district court’s I would vacate and remand with instructions to

judgment III If standing. lack of Article

dismiss for merits, I necessary to reach the

it were (if the judgment

would reverse the because standing) presents this case

shoppers jury question.17 agree abuse its recuse. the district court did not I denying shoppers’ motion to discretion

Case Details

Case Name: Steven Hammer v. Sam's East, Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 5, 2014

Citation: 754 F.3d 492

Docket Number: 12-3724, 12-3858

Court Abbreviation: 8th Cir.