3rd Circuit Court Of Appeals Wants Concrete Harm not just Technical Violations.

The third district court of appeals delivered a precedential opinion supporting the dismissal of a presumed consumer class action where the plaintiff failed to plead a concrete injury-in-fact stemming from an alleged technical violation of the Fair and Accurate Credit Transactions Act of 2003. The court’s decision had to do with Kamal v. J. Crew Group, Inc., — F.3d –, 2019 WL 1087350 (3d Cir. Mar. 8, 2019).

The plaintiff Ahmed Kamal alleged that he made three credit card purchases at retailer J. Crew which upon reviewing his credit card receipt found that the company printed out the first 6 digits of his credit card along with the last 4 digits constituting a violation of the Fair and Accurate Credit Transactions Act of 2003 (FACTA). FACTA explicitly states that “Except as otherwise provided in this subsection, no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction”.

The Third circuit court held that Kamal failed to prove that an actual concrete harm was done to prove violation of Article III citing the infamous (or famous) Spokeo, Inc. v. Robins decision which stated that a technical violation must lead to an actual harm in order to bring a class action suit. In determining the validity of the Plaintiffs claim the Court of Appeals analyzed Article III requirement of an injury or harm in fact:

[A] Plaintiff does not automatically satisfy the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Congress cannot statutorily manufacture Article III standing in the case of a bare procedural violation, divorced from any concrete harm. Rather, a procedural violation must yield or risk actual harm to meet the requirements of Article III.

The court found based on the Spokeo decision that an injury-in-fact didn’t occur by printing the extra credit card numbers on the receipt as it did not closely relate to the kinds of privacy violations that historically gave rise to cognizable injury. Furthermore, Kamal didn’t plead an injury-in-fact as a result of J. Crew violating the FACTA, instead relying on Congress’s general intent to reduce the risk of identity theft in forcing FACTA. The court instead analyzed if Kamal had “clearly and specifically set forth facts showing a risk of harm particular to Plaintiff”. In order for the court to side with Kamal they would speculate that the receipts with the credit card numbers would have been lost or thrown away, which potentially could lead to identity theft. However, Kamal neither alleged “third-party access” to his personal information nor that the receipts at issue included enough information “to likely enable identity theft,” his alleged risk of harm was too conjectural to confer Article III standing.

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