By Nicole D. Prysby, J.D.
A consumer who suffered only a statutory injury had no standing to pursue a claim under the Fair Credit Reporting Act, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has held. Although a parking garage receipt printed the expiration date of the consumer’s credit card in violation of the FCRA, no one other than the consumer had access to the receipt and there was no real risk of harm. Because the consumer suffered no actual injury, he had no standing under Article III of the Constitution (Bassett v. ABM Parking Services, Inc., Feb. 21, 2018, McKeown, M.).
Alleged FCRA violation. The consumer used his credit card at a parking garage and received a receipt displaying the card’s full expiration date, which is a violation of the FCRA amendments made by the Fair and Accurate Credit Transactions Act of 2003. In his proposed class action against the parking garage and related parties, the consumer did not allege that he was a victim of identity theft, but rather alleged that the risk of harm created in printing the expiration date on the receipt was a sufficiently concrete injury to confer Article III standing.
Standing. The court found that the consumer had alleged no concrete injury-in-fact and therefore had no standing. The information was not disclosed to anyone other than the consumer himself, and the case was distinguishable from cases where there is a privacy-based injury, such as an intrusion into privacy from unrestricted telemarketing. Although the safe-harbor time frame under the FCRA for printing the entire expiration date was over, the fact that Congress allowed temporary immunity for such a violation was additional evidence that the consumer suffered no concrete injury from the mere disclosure of the expiration date.
The consumer argued that the FCRA created a substantive right that was violated by the statutory violation. But the court found that the right created by the FCRA could be characterized in a variety of ways: as the right to be free from identify theft; the right to be free from disclosure to others of his full credit card information; or the right to be free from receiving a receipt showing his credit card expiration date. Only the last "right" was implicated in this case. In addition, to the extent that the FCRA creates a substantive right, it is the right of nondisclosure of private financial information to identity thieves. Because the information was disclosed to no one other than the consumer, the right was not violated.
The consumer also argued that the FCRA created a procedural right. But the court found that there was no harm, because the consumer did not allege that another copy of the receipt existed, that his receipt was lost or stolen, that he was the victim of identity theft, or even that another person viewed the receipt. Given that he could simply shred the offending receipt at any time, there was no real risk of harm. The court concluded that even though the consumer alleged a statutory violation, the bare procedural violation, in the absence of any concrete harm, was insufficient to satisfy the injury-in-fact requirement of Article III.
The case is No. 16-35933.
Attorneys: Darrell L. Cochran and Christopher E. Love (Pfau Cochran Vertetis Amala PLLC) for Steven Bassett. Ryan P. McBride, Abraham K. Lorber, and Randall P. Beighle (Lane Powell PC) for ABM Industries, Inc., ABM Onsite Services-West, Inc., and ABM Parking Services, Inc.
Companies: ABM Industries, Inc.; ABM Onsite Services-West, Inc.; ABM Parking Services, Inc.
MainStory: TopStory CreditDebitGiftCards FairCreditReporting IdentityTheft Privacy
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