In the latest installment of what has become a quickening trend, a New York federal court recently dismissed another yet putative FACTA class action for lack of Article III standing. On her fourth (and final) attempt, the court in the case (Fullwood v. Wolfgang’s Steakhouse, Inc.) held the plaintiff once again failed to plead a concrete injury against a New York City steakhouse that provided her with a receipt displaying the full expiration date of her credit card in 2013.
Although plaintiff did not allege that she had been a victim of identity theft or credit card fraud, she nonetheless sought statutory damages of “$100 to $1,000” on behalf of herself and a nationwide class of similar situated customers who had dined at a Wolfgang’s steakhouse and received a credit card receipt with an expiration date. The district court had granted defendants’ motion to dismiss plaintiff’s third amended complaint after joining the chorus of other courts holding that a mere technical violation of FACTA —without more—does not result in any actionable harm.
The fourth time around, plaintiff tried to salvage her case by alleging that she had used credit cards for previous purchases from defendants, received credit card receipts, and then threw out those earlier receipts “without burning them or otherwise destroying them.” Relying on a trilogy of recent Supreme Court and Second Circuit cases, the court held that a bare procedural violation—in the absence of allegations of concrete harm—does not confer Article III standing. Finding that any attempt at amending her complaint would be futile considering controlling case law, the court dismissed plaintiff’s case with prejudice.
Putting it Into Practice: This case is a reminder that while plaintiffs may continue to bring FACTA cases when companies display a full expiration date on a credit card, courts are less willing to allow these cases to continue when plaintiffs cannot establish harm. For all intents and purposes, run-of-the-mill FACTA claims are now an extinct breed in the Second Circuit, as well as in the Seventh Circuit.