United States District Court, S.D. New York
DEVORAH CRUPER-WEINMANN, individually and on behalf of all others similarly situated, Plaintiff,
PARIS BAGUETTE AMERICA, INC. d/b/a Paris Baguette, Defendant.
OPINION AND ORDER
bring any lawsuit, a plaintiff must have constitutional
"standing" to do so, which means, among other
things, that the plaintiff must have suffered a concrete
injury in fact as a result of the defendant's conduct.
The plaintiff here, on the face of her own complaint, lacks
Devorah Cruper-Weinmann, individually and on behalf of those
similarly situated, initiated this putative class action
against defendant Paris Baguette America, Inc. ("Paris
Baguette") on October 3, 2013. She alleged that
defendant willfully violated the Fair and Accurate Credit
Transactions Act of 2003 ("FACTA"), Pub. L. No.
108-159, 117 Stat. 1952 (codified as amended in 15 U.S.C.
§ 1681c(g)), by providing her with a receipt that
contained the expiration date of her credit card, and she
sought statutory and punitive damages as prescribed for
willful violations under the Act, as well as costs and
reasonable attorneys' fees. Defendant subsequently moved
to dismiss the Complaint under Federal Rule of Civil
Procedure 12(b)(6), and, on January 16, 2014, this Court
granted the motion, on the ground that plaintiff could not
plausibly plead that defendant's alleged violation was
appealed the dismissal of the Complaint. After the Court of
Appeals heard oral argument but before it had rendered a
decision, the Supreme Court decided Spokeo, Inc. v.
Robins, 136 S.Ct. 1540 (2016), which addressed the
standard for pleading an injury in fact for the purposes of
Article III standing when the alleged injury arises from the
violation of a statutory requirement. In light of
Spokeo, the Second Circuit remanded the case
"to allow plaintiff an opportunity to replead [her]
claims to comport with the pleading standards set forth in
Spokeo, and to allow the district court to address
any standing questions in the first instance."
Cruper-Weinmann v. Paris Baguette, Inc., 653
F.App'x 81, 82 (2d Cir. 2016) (summary order). Plaintiff
accordingly filed an Amended Complaint; defendant filed a
motion to dismiss the Amended Complaint under Federal Rule of
Civil Procedure 12(b)(1) and (6); and the parties were
instructed to submit briefing that addressed whether, under
Spokeo, plaintiff had now adequately alleged that
she suffered a "concrete" injury, a requirement for
Article III standing. Having reviewed the parties'
submissions, including supplemental authority consisting of
recently decided cases that analyze whether plaintiffs have
standing to bring claims for violations of FACTA's
requirements, the Court concludes that plaintiff lacks
standing and dismisses the Amended Complaint.
enacted FACTA, which amended the Fair Credit Reporting Act of
1970 ("FCRA"), with the purpose of preventing
identity theft facilitated by information on discarded credit
card receipts. In relevant part, FACTA requires businesses
that accept credit and debit cards to redact on
customers' receipts all but the last five digits of the
credit card number, as well as the expiration date. 15 U.S.C.
§ 1681c(g)(1). In 2007, FACTA was amended in order to
provide a retrospective safe harbor to persons who had
previously printed an expiration date on a receipt but
otherwise complied with FACTA's requirements. Credit and
Debit Card Receipt Clarification Act of 2007, Pub. L. No.
110-241, 122 Stat. 1565. That amendment contained
Congress's finding that "[e]xperts in the field
agree that proper truncation of the card number, by itself as
required by [FACTA], regardless of the inclusion of the
expiration date, prevents a potential fraudster from
perpetrating identity theft or credit card fraud."
§ 2(a)(6). Despite that finding, FACTA's redaction
requirements remained unchanged going forward.
Amended Complaint, Plaintiff alleges that on September 19,
2013, she ate at Paris Baguette's location on West
32nd Street in Manhattan, paid for her meal with a
credit card, and received an electronically printed receipt
that displayed the expiration date of her card. Am. Compl.
¶ 16, ECF No. 40. She does not allege that she suffered
identity theft as a result of the printing of the receipt, or
that anyone else ever saw or accessed the receipt.
doctrine of standing, rooted in Article Ill's restriction
of the judicial power to adjudicating cases or controversies,
limits the categories of litigants that may maintain a
lawsuit in federal court. The Supreme Court has established
that that "the irreducible constitutional minimum of
standing contains three elements." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).
"The 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." Spokeo, 136 S.Ct.
at 1547. An injury in fact, in turn, must be "concrete
and particularized" and "actual or imminent, not
conjectural or hypothetical." Lujan, 504 U.S.
at 560 (internal quotation marks omitted). The question here
is whether plaintiff has sufficiently pleaded that she
suffered an injury in fact by merely alleging that she
received a receipt containing her card's expiration date
in violation of FACTA.
Spokeo, the Supreme Court discussed the requirement
of "concreteness." Robins, the plaintiff in that
case, had alleged that defendant Spokeo, Inc., a "people
search engine, " collected inaccurate personal
information about him and disseminated that information on
the internet, in violation of FCRA, which is designed to
ensure "fair and accurate credit reporting" by
regulating consumer reports that contain certain types of
personal information. Spokeo, 136 S.Ct. at 1544-45.
The Supreme Court, finding that the decision below had elided
the concreteness and particularization prongs of the
injury-in-fact analysis and thereby neglected to address
whether Robins' alleged injury was sufficiently concrete,
vacated the decision and remanded the case so that the Ninth
Circuit Court of Appeals could determine "whether the
particular procedural violations alleged in this case entail
a degree of risk sufficient to meet the concreteness
requirement." Id. at 1550.
the Supreme Court did not decide whether Robins adequately
alleged an injury in fact, it did set out principles that
inform such a determination. "A concrete injury must be
Me facto, '" which means it "must actually
exist, " and it must be "real" rather than
"abstract." Id. at 1548. However,
intangible injuries may still qualify as concrete.
Id. at 1549. Of particular relevance here is the
Court's discussion of Congress's ability to
"identify and elevat[e] intangible harms" such
that allegations of those harms meet the injury-in-fact
requirement. Id. (citing Lujan, 504 U.S. at
578). It is not the case "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. Thus, the allegation of a "bare procedural
violation" of a statutory directive, on its own, does
not establish an injury in fact. Id. Nonetheless,
"the violation of a procedural right granted by statute
can be sufficient in some circumstances to constitute injury
in fact, " which means "a plaintiff in such a case
need not allege any additional harm beyond the one
Congress has identified." Id. (emphasis in
provides as examples two cases in which the violations of
procedures required by Congress were, on their own,
sufficient to establish injury in fact, each of which held
that the inability to obtain information that was subject to
disclosure constituted an injury sufficient for standing
purposes. See Federal Election Conim'n v. Akins,
524 U.S. 11 (1998); Public Citizen v. Pep't of
Justice, 491 U.S. 440 (1989). It also points out two
hypothetical procedural violations of FCRA that would not be
sufficient: the failure to provide a user with a required
disclosure when the information provided to the user happens
to be entirely accurate, and the dissemination of an
incorrect zip code. Spokeo, 136 S.Ct. at 1550.
Court of Appeals for the Second Circuit recently had occasion
to interpret the standard set out in Spokeo. In
Strubel v. Comenity Bank, the plaintiff, Strubel,
alleged four violations of the Truth in Lending Act
("TILA") based on the defendant's failure to
make certain required disclosures in the credit card
agreement that it provided, and the defendant argued that
Strubel failed to demonstrate that the violations caused her
concrete injuries. 842 F.3d 181 (2d Cir. 2016). The Court of
Appeals formulated the rule implied in Spokeo as
follows: "an alleged procedural violation can by itself
manifest concrete injury where Congress conferred the
procedural right to protect a plaintiff's concrete
interests and where the procedural violation presents a risk
of real harm to that concrete interest." Id. at
190 (internal quotation marks omitted). Applying that test,
the Court of Appeals found that Strubel had satisfied the
injury-in-fact requirement with regard to two of the four
alleged violations. The defendant's failure to disclose
two aspects of the plaintiff s obligations under the credit
card agreement necessarily threatened the plaintiff's
interest in the "informed use of credit, " which
TILA's requirements were designed to protect, since a
consumer cannot use credit in an informed way if she is
unaware of the obligations she must fulfill in order to
exercise her rights under the agreement. Id.
However, the failure to disclose the plaintiff s obligations
with regard to a payment plan that was never available to
plaintiff could not affect her use of credit, nor could the
failure to disclose the defendant's obligation to make
certain reports affect such use in the absence of additional
violations, and therefore those two failures of disclosure,
despite violating the requirements of TILA, did not give rise
to concrete injuries. Id. at 191-94.
following Spokeo and Strubel, to determine
whether a procedural violation alone constitutes an injury in
fact, a court must inquire (1) whether Congress conferred the
procedural right at issue in order to protect a concrete
interest of the plaintiff, and (2) whether the violation of
the procedure at issue presented a material risk of harm to
that interest. A plaintiff may fail to satisfy the second
condition when the violation in question could not result in
harm to the interest protected by statute either as a general
matter, see Spokeo, 136 S.Ct. at 1550 ("It is
difficult to imagine how the dissemination of an incorrect
zip code, without more, could work any concrete harm."),
or under the particular circumstances alleged, see
Strubel, 842 F.3d at 191-92.
Baguette contends that the alleged violation in this case was
merely procedural, divorced from any allegation of harm to
the interests that Congress in enacting FACTA sought to
protect, viz., the prevention of actual identity
theft by means of a third party obtaining a credit card
receipt. Moreover, it argues that such a violation could not
possibly put plaintiff at risk of harm according to
Congress's own finding, made when it amended FACTA, that
the redaction of the credit card number alone, with or with
or without redaction of the expiration date, is sufficient to
eliminate the risk of identity theft.
is correct that plaintiff has failed to allege facts
demonstrating that the violation in question put her at an
increased risk of identity theft. The Amended Complaint's
spare account of the circumstances in which plaintiff
received an improperly redacted receipt does not include any
allegation that any third party ever saw or accessed the
receipt. Under those circumstances, it is not apparent how
the presence of the full expiration date of her credit card
on that receipt might have threatened the security of her
identity. Therefore, it is not the case that "the
procedural violation present[ed] a risk of real harm to
[plaintiff's] concrete interest" in ...