FILED
NOT FOR PUBLICATION
MAR 09 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRETT NOBLE; et al., No. 16-16573
Plaintiffs-Appellants, D.C. No.
2:15-cv-02322-RCJ-VCF
v.
NEVADA CHECKER CAB MEMORANDUM*
CORPORATION, DBA Checker Cab
Company; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted November 17, 2017
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON,** District
Judge.
Appellants contend that Appellee taxi companies have violated the Fair and
Accurate Credit Transactions Act of 2003 by printing and distributing receipts that
*
This disposition is not appropriate for publication and is not precedent except as provided
by Ninth Circuit Rule 36-3.
**
The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska,
sitting by designation.
contain the first digit as well as the final four digits of the cardholder’s credit card
number. Appellants do not allege that a breach of privacy occurred, nor do they
point to any tangible harms resulting from Appellees’ violations. Thus, the
question before this Court is whether Appellants have alleged harm sufficient to
warrant standing under Article III of the Constitution.
BACKGROUND
The Fair and Accurate Credit Transactions Act of 2003 (“FACTA”), Pub. L.
No. 108-159, 117 Stat. 1952, amended the Fair Credit Reporting Act (“FCRA”) to
provide that “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.” 15 U.S.C. § 1681c(g)(1). The statute provides for “any actual
damages sustained by the consumer as a result” or statutory damages between $100
and $1,000 per violation, plus costs and attorney's fees, and potential punitive
damages. Id. § 1681n(a).
Appellants alleged that the credit card receipts printed by Appellees
contained the first digit in addition to the last four digits. Appellants do not allege
that the receipts were given to anyone other than the individual cardholders who
made the purchases.
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Appellants filed suit in the District of Nevada, naming as a class all
consumers receiving such receipts within the two-year period preceding the filing
of the complaint. On August 19, 2016, the district court granted Appellees’ motion
to dismiss Appellants’ Second Amended Complaint. Appellants timely appealed.
ANALYSIS
The situation in this case resembles a number of recent cases which have
addressed when a plaintiff has standing to sue under a statutory damages provision.
See, e.g., Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549-50 (2016) (holding that
because “Article III standing requires a concrete injury even in the context of a
statutory violation . . . [Plaintiffs] cannot satisfy the demands of Article III by
alleging a bare procedural violation”). One of our recent opinions addressed facts
very similar to this case. In Bassett v. ABM Parking Services, Inc., _ F.3d _, 2018
WL 987954 (9th Cir. Feb. 21, 2018), the plaintiff alleged that defendants violated
FACTA by printing a receipt that included the plaintiff’s credit card expiration
date. Citing Spokeo, we held that the plaintiff had not alleged a concrete injury
sufficient to warrant Article III standing because he “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 apart from his lawyers viewed the
receipt.” Id. at *6. Nor did plaintiff “allege that any risk of harm is real, ‘not
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conjectural or hypothetical,’ given that he could shred the offending receipt along
with any remaining risk of disclosure.” Id. (citing Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992)).
As in Bassett, Appellants here did not allege that anyone else had received or
would receive a copy of their credit card receipts. As in Bassett, Appellants’
alleged injury depended entirely on a FACTA violation. Bassett’s reasoning
controls the issue in this case, and we are bound by it. See Miller v. Gammie, 335
F.3d 889, 892-93 (9th Cir. 2003) (en banc).
Also like in Bassett, the alleged FACTA violation here does not involve the
sort of revelation of information that Congress determined could lead to identity
theft. In Bassett, we observed that Congress had suggested that the alleged
violations of FACTA were not concrete by passing a law that included a “finding
that a disclosed expiration date by itself poses minimal risk” and temporarily
eliminated statutory damage liability for such violations. 2018 WL 987954, at *5.
Likewise, here, the first digit of a credit card number merely identifies the brand of
the card, and Congress has not prohibited printing the identity of the credit card
issuer along with the last five digits of the credit card number. Thus, giving the
deference to Congress’s expertise that Spokeo requires, 136 S. Ct. at 1549,
confirms that Appellants lack standing here.
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AFFIRMED.
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