2019 IL App (1st) 180857
FIRST DISTRICT
SIXTH DIVISION
January 25, 2019
No. 1-18-0857
KAREN DUNCAN, Individually and on Behalf of ) Appeal from the
All Others Similarly Situated, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. ) No. 17 CH 14517
)
FEDEX OFFICE AND PRINT SERVICES, INC., )
a Texas Corporation, ) Honorable
) Sanjay T. Tailor,
Defendant-Appellee. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Cunningham and Connors concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Karen Duncan, appeals the judgment of the circuit court granting defendant
FedEx Office and Print Services, Inc.’s (FedEx) motion to dismiss her complaint, which alleged
that FedEx willfully violated the Fair and Accurate Credit Transactions Act of 2003 (FACTA)
(15 U.S.C. § 1681 et seq. (2012)) when it printed more than the last five digits of her credit card
number on its sales receipt. On appeal, Duncan contends that the court erred by relying on
federal case law to find that she lacked standing to pursue her claim in state court. For the
following reasons, we reverse and remand for further proceedings.
¶2 JURISDICTION
¶3 The trial court entered its judgment granting FedEx’s motion to dismiss on March 28,
2018. Duncan filed her notice of appeal on April 19, 2018. Accordingly, this court has
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jurisdiction pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. July 1,
2017), governing appeals from final judgments entered below.
¶4 BACKGROUND
¶5 Section 1681c(g)(1) of FACTA (15 U.S.C. § 1681c(g)(1) (2003 Supp. III)) (amending the
Fair Credit Reporting Act (Act) (15 U.S.C. § 1681 et seq.)) prohibits a merchant who accepts
credit cards from “print[ing] 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
legislative history of FACTA indicates that Congress sought to protect the consumer and prevent
identity theft and credit card fraud by requiring truncation of the credit card number on printed
receipts. As with all Visa cards, Duncan’s card had 16 digits on its face. The meaning of these
numbers corresponds to the 2015 standards set by the International Standards Organization,
which define the first six digits as the issuer identification number (IIN). These six digits identify
the card issuer, including the network, card level, card type, and bank.
¶6 On October 31, 2017, Duncan filed a one-count complaint alleging that FedEx issued her
a printed receipt in violation of FACTA. Duncan’s claim arose from her transaction with FedEx
at its retail location in Oak Lawn, Illinois. Duncan alleged that she used her personal Visa credit
card and FedEx issued her a printed receipt that listed the first two and last four digits of her
credit card number. She alleged that as a result of FedEx’s willful noncompliance with FACTA,
she and “thousands of FedEx’s customers have been burdened with a heightened risk of payment
card fraud and identity theft.” Duncan sought, on behalf of herself and all others similarly
situated, injunctive relief, statutory damages, costs, and reasonable attorney fees.
¶7 FedEx filed a combined motion to dismiss Duncan’s complaint under section 2-619.1 of
the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2016)). In its motion, FedEx
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argued that Duncan lacked standing because she failed to allege any injury beyond the improper
disclosure of the first two digits of her credit card number, where the first six digits comprise the
IIN which provides no personal information about Duncan. FedEx also argued that Duncan
failed to allege facts showing it willfully violated FACTA in issuing her receipt.
¶8 The trial court granted FedEx’s motion based on lack of standing, although it believed
that “there’s a basis here for a claim in the absence of actual damages just based on the statutory
framework.” However, it found that “three federal courts of appeals *** have determined that the
plaintiff, the consumer whose expiration date is printed on his receipt cannot seek—cannot bring
the claim under FACTA in the absence of actual damages.” The trial court saw no “distinction
between the illegal printing of the expiration date and the illegal printing of more than the last
five digits of the credit card number.” The court also determined that “there are sufficient facts to
allege a willful violation of the statute.” Duncan filed this timely appeal.
¶9 ANALYSIS
¶ 10 Duncan appeals the dismissal of her complaint pursuant to section 2-619.1 of the Code.
735 ILCS 5/2-619.1 (West 2016). A motion filed under section 2-619.1 seeks dismissal under
both sections 2-615 and 2-619 (id. §§ 5/2-615, 2-619). Dratewska-Zator v. Rutherford, 2013 IL
App (1st) 122699, ¶ 13. While a section 2-615 motion to dismiss challenges the legal sufficiency
of the pleadings, a section 2-619 motion admits the legal sufficiency of the pleadings but asserts
certain defects or defenses. Id. We review a dismissal under either section de novo. Kean v.
Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009).
¶ 11 FedEx argues that this court should affirm the dismissal because Duncan lacks standing
to pursue her FACTA claim in the trial court below. In her complaint, Duncan alleges that FedEx
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violated section 1681c(g)(1) of the statute by printing more than the last five digits of her card
number on her receipt. Section 1681n(a)(1)(A) provides that
“[a]ny person who willfully fails to comply with any requirement imposed under this
subchapter with respect to any consumer is liable to that consumer in an amount equal to
the sum of ***
(1)(A) any actual damages sustained by the consumer as a result of the
failure or damages of not less than $100 and not more than $1,000.” 15 U.S.C.
§ 1681n(a)(1)(A) (2012).
Without more, the clear language of the statute grants private citizens, like Duncan, the right to
seek recourse for violations made against them. Courts must give effect to clear statutory
language without resort to other aids for construction. Gruszeczka v. Illinois Workers’
Compensation Comm’n, 2013 IL 114212, ¶ 12.
¶ 12 FedEx, however, urges this court to follow federal cases finding that despite the clear
language of the statute, a claim alleging a bare procedural violation of FACTA is not sufficient
to satisfy federal standing requirements. As these federal cases cite Spokeo, Inc. v. Robins, 578
U.S. ___, ___, 136 S. Ct. 1540, 1544 (2016), as support, we set forth Spokeo and its analysis
here.
¶ 13 In Spokeo, the United States Supreme Court addressed whether Robins, who discovered
that a “ ‘people search engine’ ” had gathered and disseminated inaccurate information about
him, had standing to maintain an action in federal court under the Act. Id. at ____, 136 S. Ct. at
1544. The Court noted that the purpose of the Act is to ensure “ ‘fair and accurate credit
reporting’ ” by regulating the creation and use of “ ‘consumer report[s].’ ” Id. at ___, 136 S. Ct.
at 1545 (quoting 15 U.S.C. §§ 1681(a)(1), 1681a(d)(1)(A)-(C) (2006)). To achieve this goal, the
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Act requires consumer reporting agencies to follow reasonable procedures to assure the
maximum accuracy of such reports, to notify providers and users of consumer information of
their responsibilities under the Act, to limit the circumstances in which consumer reports can be
provided for employment purposes, and to post a toll-free number that consumers can call to
request reports. Id. at ___, 136 S. Ct. at 1545.
¶ 14 The district court found that although Robins claimed that the information about him was
inaccurate, he had not properly pled an injury in fact to confer standing. Id. at ___, 136 S. Ct. at
1546. The Ninth Circuit reversed, determining that Robins adequately alleged an injury in fact
because he had alleged that Spokeo violated “his statutory rights,” and “his personal interests in
the handling of his credit information are individualized rather than collective.” (Emphasis in
original and internal quotation marks omitted.) Id. at ___, 136 S. Ct. at 1546. The Supreme
Court, however, found the Ninth Circuit’s analysis “incomplete.” Id. at ___, 136 S. Ct. at 1545.
¶ 15 Under federal law, standing is an issue of jurisdiction that is limited by the authority
conferred on the federal judiciary by the United States Constitution. Id. at ___, 136 S. Ct. at
1546-47. Article III of the Constitution specifies that judicial power extends only to actual cases
and controversies. To satisfy the cases and controversies requirement and establish standing, a
“plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Id. at ___, 136 S. Ct. at 1547. “Injury in fact is a constitutional requirement,” and to satisfy this
element, a plaintiff must show not only that he or she suffered a particularized injury (one that
affected the plaintiff in a personal, individual way) but also that the injury is concrete. Id. at ___,
136 S. Ct. at 1547-48. While the Ninth Circuit found that Robins had alleged a particularized
injury from Spokeo’s violation of the Act, it failed to address whether he had adequately alleged
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No. 1-18-0857
a concrete injury. Id. at ___, 136 S. Ct. at 1548. A concrete injury is one that “actually exist[s].”
Id. at ___, 136 S. Ct. at 1548.
¶ 16 The Supreme Court recognized that through statutory enactments, Congress may exercise
its authority to elevate intangible harms previously inadequate in law to the status of legally
cognizable injuries. Id. at ___, 136 S. Ct. at 1549. The Court cautioned, however, that Congress’
identification and elevation of an intangible harm “does not mean that a plaintiff automatically
satisfies 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.” Id. at ___, 136 S. Ct. at 1549.
Therefore, even in the context of a statutory violation, “Article III standing requires a concrete
injury ***.” Id. at ___, 136 S. Ct. at 1549.
¶ 17 The Court made clear that a violation of a statute’s procedural requirements “can be
sufficient in some circumstances to constitute injury in fact,” notably in cases where the injuries
“may be difficult to prove or measure.” Id. at ___, 136 S. Ct. at 1549. In the case before it,
however, a procedural violation of the Act was not sufficient where not all violations result in
harm and “not all inaccuracies cause harm or present any material risk of harm.” Id. at ___, 136
S. Ct. at 1550. The Court remanded the case for a determination of whether “the particular
procedural violations alleged in this case” caused concrete harm to Robins. It “took no position
as to whether the Ninth Circuit’s ultimate conclusion—that Robins adequately alleged an injury
in fact—was correct.” Id. at ___, 136 S. Ct. at 1550.
¶ 18 Following Spokeo, a number of federal courts have found no standing for plaintiffs who
claimed their receipts improperly showed the card’s expiration date because “it is hard to
imagine how the expiration date’s presence could have increased the risk that [the customer’s]
identity would be compromised.” Meyers v. Nicolet Restaurant of De Pere, LLC, 843 F.3d 724,
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727 (7th Cir. 2016); see also Collier v. SP Plus Corp., 889 F.3d 894 (7th Cir. 2018);
Crupar-Weinmann v. Paris Baguette America, Inc., 861 F.3d 76 (2d Cir. 2017). Other federal
courts have come to the same conclusion regarding the inclusion of any of the first six digits of a
credit card number, the IIN, which identifies the card issuer. See Katz v. Donna Karan Company,
L.L.C., 872 F.3d 114 (2d Cir. 2017); Hullinger v. Park Grove Inn, Inc., No. 3:17-cv-004000,
2018 WL 3040571 (E.D. Tenn. June 19, 2018); Soto v. Great America LLC, No. 17-cv-6902,
2018 WL 2364916 (N.D. Ill. May 24, 2018).
¶ 19 Some federal courts, however, have noted Spokeo’s acknowledgement of Congress’
authority to define and elevate injuries and found that in FACTA, “Congress intended to create a
substantive right” to protect consumers’ credit identities. Guarisma v. Microsoft Corp., 209 F.
Supp. 3d 1261, 1265-66 (S.D. Fla. 2016). In other words, “Congress gave consumers the legal
right to obtain a receipt at the point of sale showing no more than the last five digits” of their
card number. (Emphasis in original.) Id. at 1266. To require a plaintiff to show a material risk of
harm in addition to a statutory violation “ignores the fact that Congress explicitly prohibited
merchants from printing ‘no more than the last five digits of the card number.’ ” Gennock v.
Kirkland’s, Inc., No. 17-454, 2017 WL 6883933, at *6 (W.D. Pa. Nov. 29, 2017). These courts
have found that harm from a FACTA violation is “concrete as soon as a company prints the
offending receipt.” Guarisma, 209 F. Supp. 3d at 1266. See also Muransky v. Godiva
Chocolatier, Inc., 905 F.3d 1200, 1210 (11th Cir. 2018) (finding that FACTA provides
consumers with “the right to enforce nondisclosure of their untruncated credit card numbers” and
concluding that “printing more than five digits of a credit card number in willful violation of
FACTA causes the person *** to suffer a concrete injury”).
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¶ 20 FedEx contends we should follow the federal cases that require Duncan to show she
suffered a concrete injury in addition to a procedural violation of FACTA, but there is no
consensus among the federal courts on this issue. Although we give considerable weight to the
federal courts’ uniform interpretation of federal law, “if the federal courts are split, we may elect
to follow those decisions we believe to be better reasoned.” State Bank of Cherry v. CGB
Enterprises, Inc., 2013 IL 113836, ¶ 35. We find the reasoning of Guarisma, Gennock, and
Muransky more persuasive. Federal courts that have found no standing when a plaintiff alleged
only a procedural violation of FACTA relied on Spokeo’s requirement of a concrete injury. The
standing issue in Spokeo, however, concerned violations of the procedural requirements of the
Act, and some of those requirements have no discernible connection to any harms the Act seeks
to protect against. The Supreme Court in Spokeo did not consider FACTA or the statute’s clear
prohibition against the printing of more than the last five digits of a consumer’s card number.
¶ 21 Furthermore, Illinois courts are not required to follow federal law on issues of
justiciability and standing. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 491
(1988). Standing under federal law is grounded in the jurisdictional case and controversy
mandates imposed by article III, while standing in Illinois is not jurisdictional. Instead, standing
is an affirmative defense that is the defendant’s burden to plead and prove. People v. $1,124,905
U.S. Currency & One 1988 Chevrolet Astro Van, 177 Ill. 2d 314, 328-30 (1997). As a result,
Illinois courts generally are not as restrictive as federal courts in recognizing the standing of a
plaintiff to bring a claim. Id. at 329. Although federal law and Illinois law both require an “injury
in fact” to find standing, it “does not necessarily mean that both forums define that requirement
in the same way.” Soto, 2018 WL 2364916, at *5.
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¶ 22 Standing law in Illinois requires that the injury-in-fact, whether actual or threatened, “be
(1) distinct and palpable; (2) fairly traceable to the defendant’s actions; and (3) substantially
likely to be prevented or redressed by the grant of the requested relief.” Glisson v. City of
Marion, 188 Ill. 2d 211, 221 (1999). An injury-in-fact that is “ ‘actual’ does not mean that a
wrong must have been committed and an injury inflicted; rather, the term requires a showing that
the underlying facts and issues of the case are not moot or premature.” Messenger v. Edgar, 157
Ill. 2d 162, 170 (1993). A distinct and palpable injury refers to an injury that cannot be
characterized as “a generalized grievance common to all members of the public.” Id. at 172;
Greer, 122 Ill. 2d at 494 (finding that due to their proximity to the challenged housing
development, the plaintiffs’ alleged injuries were “ ‘distinct and palpable,’ rather than a
generalized grievance common to all members of the public”). In Illinois, “[t]he doctrine of
standing is designed to preclude persons having no interest in a controversy from bringing suit,
but it should not be an obstacle to the litigation of a valid claim.” $1,124,905 U.S. Currency, 177
Ill. 2d at 330.
¶ 23 Importantly, under Illinois law, when a plaintiff alleges a statutory violation, no
“additional requirements” are needed for standing. Glisson, 188 Ill. 2d at 222. In Greer, our
supreme court refused to adopt the zone-of-interest test for standing used by federal courts when
a plaintiff alleges a statutory violation by an administrative agency. This test requires that the
interest a plaintiff seeks to protect is “ ‘within the zone of interests to be protected or regulated
by the statute *** in question.’ ” Greer, 122 Ill. 2d at 489 (quoting Ass’n of Data Processing
Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970). In rejecting the test, the court
reasoned that “it tends to lead to confusion between standing and the merits of the suit” because
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an “examination of the goals, purposes, and objectives” of a statute is the same examination
needed to show that the plaintiff has “in fact stated a claim for relief.” Id. at 492.
¶ 24 In Glisson, our supreme court reaffirmed its holding in Greer and also rejected the test
used by the appellate court in Lynch v. Devine, 45 Ill. App. 3d 743 (1977). Glisson, 188 Ill. 2d at
222. The Lynch test provides that, “where the suit alleges injury due to violation of a statute, the
doctrine of standing requires that the plaintiff be a member of the class designed to be protected
by the statute.” Id. (citing Lynch, 45 Ill. App. 3d at 748). In refusing to adopt the zone-of-interest
and Lynch tests, the court found that “[b]oth tests require a consideration of the underlying
purposes of the statute at issue” and, as such, they “improperly confuse standing with the merits
of the underlying suit.” Id. Instead, our supreme court “adhere[s] to the principle that standing in
Illinois requires only some injury in fact to a legally cognizable interest.” Greer, 122 Ill. 2d at
492.
¶ 25 We find that Duncan has standing to bring her FACTA claim under Illinois law. In
enacting FACTA, Congress elevated intangible harms associated with the printing of more than
the last five digits of a person’s card number to the status of legally cognizable injuries.
Duncan’s complaint alleges “the very harm that Congress sought to prevent by turning the
disclosure of such information into an actionable tort” (Gennock, 2017 WL 6883933, at *5), and
FACTA does not require a person to suffer actual damages in order to seek recourse for a willful
violation of the statute. Illinois federal courts have acknowledged that Illinois state courts could
find that a procedural violation of FACTA is “sufficient to confer standing in state court.” Soto,
2018 WL 2364916, at *5. As the Seventh Circuit recognized, “a state’s standing doctrine is ‘the
business’ of its own courts; ‘it is not for [this court] to venture how the case would there be
resolved.’ ” Collier, 889 F.3d at 897 (quoting Smith v. Wisconsin Department of Agriculture, 23
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F.3d 1134, 1142 (7th Cir. 1994)). “Although this means that a state court potentially has
jurisdiction over a federal statutory violation in an instance where a federal court does not, ‘this
is in fact a notable quirk of the United States federalist system.’ ” Soto, 2018 WL 2364916, at *5
(quoting Miranda v. Magic Mountain LLC, No. CV 17-07483 SJO (SS), 2018 WL 571914, at *3
(C.D. Cal. Jan. 25, 2018)).
¶ 26 The trial court below also found that “there are sufficient facts to allege a willful
violation of the statute,” and FedEx does not challenge this finding. See Ill. S. Ct. R. 341(h)(7)
(eff. May 25, 2018) (“[p]oints not argued are forfeited and shall not be raised in the reply brief,
in oral argument, or on petition for rehearing”). Since we have determined that Duncan has
standing to bring her claim and she has sufficiently alleged a willful violation, dismissal of her
complaint pursuant to section 2-619.1 of the Code was error.
¶ 27 Maglio v. Advocate Health & Hospitals Corp., 2015 IL App (2d) 140782, a case on
which FedEx relies, is inapposite. The plaintiffs in Maglio brought claims against Advocate after
four of Advocate’s computers containing patient information were stolen from its offices. Id. ¶ 1.
The court in Maglio found no standing because the plaintiffs’ allegations that they faced an
increased risk of identity theft due to Advocate’s negligence were merely claims of speculative
injuries. Id. ¶ 24. Maglio, however, is not a FACTA case, and there is no indication that the
statutes on which the Maglio plaintiffs based their claims expressly grant a private cause of
action to a customer for a violation, as does FACTA.
¶ 28 CONCLUSION
¶ 29 For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is
remanded for further proceedings consistent with this opinion.
¶ 30 Reversed and remanded.
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