West Palm Beach, Florida - Class Action lawyer representedAppellant with filing a class action suit.

Following a purchase at a Red Wing shoe store, appellant filed a class

action suit in federal court alleging that the receipt provided by Red Wing

contained ten digits of his credit card number in violation of FACTA. 15

U.S.C. § 1681c reads as follows:

(g) Truncation of credit card and debit card numbers

(1) In general

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.

Appellant alleged that Red Wing willfully violated FACTA. A willful

violation holds the following civil liability:

(a) In general

Any 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.

The suit did not allege or seek to recover any actual damages. The class

members sought only statutory damages under section 1681n.

Red Wing filed a motion to stay the federal court action pending

resolution of a matter in front of the Eleventh Circuit. The federal district

court granted Red Wing's motion to stay, "pending final resolution of the

Muransky v. Godiva Chocolatier, Inc. (No. 16-16486) appeal in the Eleventh

Circuit.” During the stay, appellant filed the action in state court1, which

1 Actions for FACTA violations under 15 U.S.C. § 1681 are actionable in state

courts. "Federal law is enforceable in state courts . . . because the Constitution

and laws passed pursuant to it are as much laws in the States as laws passed by

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Red Wing removed to federal court on the basis of federal question

jurisdiction.

The Eleventh Circuit held in Muransky, on facts similar to the instant

case, that "a party does not have standing to sue when it pleads only the

bare violation of a statute.” Muransky v. Godiva Chocolatier, Inc., 979 F.

3d 917, 920 (11th Cir. 2020). Thus, the parties agreed to dismiss the

federal action and remand the later-filed action to state court. Appellant

proceeded in state court on the theory that state standing was plenary and

therefore less restrictive than federal standing. Appellant's argument for

standing is based solely on the alleged "legal injury” derived from the

statutory damages of 15 U.S.C. § 1681n(a)(1)(A).

Red Wing filed a motion to dismiss, alleging that appellant did not have

standing to bring the action because he had not suffered a concrete or

actual injury. Red Wing argued that "[a]n alleged noncompliant receipt,

without more, does not confer standing.” (emphasis omitted). Because

appellant did not allege that he had suffered any actual damages, and did

not allege that his receipt had been stolen, that another copy existed, or

that anyone else had seen the receipt, Red Wing believed it was entitled to

dismissal.

The trial court granted Red Wing's motion to dismiss, finding that

Florida requires a concrete injury to have standing, which appellant did

not argue he sustained. The trial court held that alleging a mere statutory

violation does not convey standing per se. Rather, "Plaintiff must have a

concrete, non-hypothetical injury. Merely obtaining a receipt in alleged

violation of FACTA does not satisfy this requirement.” This appeal follows.

Legal Analysis

We review de novo the dismissal for lack of standing. Wilmington Sav.

Fund Soc'y, FSB v. Stevens, 290 So. 3d 115, 117 (Fla. 4th DCA 2020).

1. Florida Standing Law

In Florida, judicial authority and the courts emanate from article V,

section 1 of the Florida Constitution. Access to the courts is derived from

article I, section 21 (1968), which states that "[t]he courts shall be open to

the state legislature.” Howlett By & Through Howlett v. Rose, 496 U.S. 356, 367

(1990). Thus, "a state court may not close its doors to claims of right finding

their source in federal law.” Brown v. Butterworth, 831 So. 2d 683, 689 (Fla. 4th

DCA 2002).

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every person for redress of any injury, and justice shall be administered

without sale, denial or delay.” "Redress” is defined as being "the receiving

satisfaction for an injury sustained.” Black's Law Dictionary (4th ed.

1968). "[I]njury” is further defined as "[a]ny wrong or damage done to

another, either in his person, rights, reputation, or property.” Black's Law

Dictionary (4th ed. 1968). Consequently, key points can be derived from

a plain reading of these Constitutional provisions. Florida courts were

conceived and designed to be available for those seeking redress for an

injury sustained, whether that injury is enumerated as a wrong or by

damages.

Florida courts are generally considered "tribunals of plenary

jurisdiction.” Dep't of Revenue v. Kuhnlein, 646 So. 2d 717, 720 (Fla.

1994). Whereas federal standing doctrine emanates from Article III of the

United States Constitution which "limits the jurisdiction of federal courts

to 'Cases' and 'Controversies.'” Lujan v. Defenders of Wildlife, 504 U.S.

555, 559 (1992). Still, Florida jurisdiction clearly has limitations. "While

'the Florida Constitution guarantees . . . access to our courts for redress

of injuries, [citation omitted] that right has never been understood as a

limitless warrant to bring the worlds [sic] litigation here.” Tananta v.

Cruise Ships Catering & Servs. Int'l., N.V., 909 So. 2d 874, 888 (Fla. 3d

DCA 2004) (citation omitted) (alteration in original). Thus, "except as

otherwise required by the constitution, Florida recognizes a general

standing requirement in the sense that every case must involve a real

controversy as to the issue or issues presented.” Kuhnlein, 646 So. 2d at

720.

The Florida Supreme Court has stated that there are "three

requirements that constitute the 'irreducible constitutional minimum' for

standing. First, a plaintiff must demonstrate an 'injury in fact,' which is

'concrete,' 'distinct and palpable,' and 'actual or imminent.' Second, a

plaintiff must establish 'a causal connection between the injury and the

conduct complained of.'” State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla.

2004) (citations omitted). Finally, "a plaintiff must show 'a "substantial

likelihood” that the requested relief will remedy the alleged injury in fact.'”

Id. (citation omitted).

The Florida Supreme Court's standing analysis in State v. J.P. has been

cited with approval and utilized in other Florida cases analyzing standing

since it was issued. See Giuffre v. Edwards, 226 So. 3d 1034, 1039 (Fla.

4th DCA 2017) (quoting the "three minimal requirements for standing” and

finding that the plaintiff did not meet the third requirement); DeSantis v.

Fla. Educ. Ass'n, 306 So. 3d 1202, 1213 (Fla. 1st DCA 2020) (denying

standing under J.P. where the appellees established none of the three

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standing elements); see also Cmty. Power Network Corp. v. JEA, 327 So.

3d 412, 415 (Fla. 1st DCA 2021) (finding that the plaintiff lacked standing

where it did not prove that the defendant's action caused it harm).

Of key importance in the present case is the first prong of the threepart test, that requiring the alleged injury to be "concrete,” "distinct and

palpable,” and "actual or imminent.” In the present case, where appellant

kept the credit card receipt with the ten digits listed, no actual damages

occurred since nothing was alleged to have been charged to appellant's

account. Nor was there an imminent possibility of injury, since appellant

retained possession of the receipt. A material risk of harm may be

sufficient in certain circumstances to meet the concreteness requirement;

however, there is no risk of harm at all here as appellant has possessed

and retained his receipt. See Spokeo, Inc. v. Robins, 578 U.S. 330, 341-43

(2016).

Appellant alleges that a FACTA violation without resulting harm

enables him to sue for statutory damages. However, a purely illegal action

in the absence of resulting harm does not confer standing on an individual.

Rather, "individuals 'must allege some threatened or actual injury

resulting from the putatively illegal action.'” Olen Props. Corp. v. Moss, 981

So. 2d 515, 517 (Fla. 4th DCA 2008) (quoting Linda R.S. v. Richard D., 410

U.S. 614, 617 (1973)). This court found that the plaintiff in Olen Properties

had standing because she alleged to have actually been charged an illegal

cancellation fee at the conclusion of her lease. Id. at 518; see also Terzis

v. Pompano Paint & Body Repair, Inc., 127 So. 3d 592, 596 (Fla. 4th DCA

2012) ("Here, the plaintiff alleged an actual injury resulting from the

putatively illegal action.”). Thus, here, Red Wing's purely illegal action of

printing too many digits on appellant's receipt does not confer standing to

maintain a suit, because appellant did not "allege some threatened or

actual injury resulting from the putatively illegal action.” See Olen Props.

Corp., 981 So. 2d at 517. Appellant makes neither such allegation;

therefore, he cannot bring this suit.

Appellant cites to Kuhnlein and Kaklamanos, but both cases dealt with

imminency of an injury, not concreteness. See Kuhnlein, 646 So. 2d at

720 (finding standing to challenge a $295 impact fee for plaintiffs who had

not yet paid the fee, nor requested a refund of the fee, where "[t]he fact

that these plaintiffs face penalties for failure to pay an allegedly

unconstitutional tax is sufficient to create standing under Florida law”);

Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003) (finding no

requirement for medical providers to institute a collection action against

insured parties prior to suing insurers for unpaid benefits). The imminent

economic injuries in both cases were certain to occur and therefore were

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"concrete,” even if they had not yet been suffered by the plaintiff. In this

case, there is no allegation that appellant will be harmed by the improper

receipt. Again, there is also not a risk of imminent injury as appellant is

still in possession of the improper receipt.

Further, like in federal court, standing for a class action claim requires

a "case or controversy” between the parties, which exists "if a party alleges

an actual or legal injury.” Sosa v. Safeway Premium Fin. Co., 73 So. 3d

91, 116-17 (Fla. 2011). The Florida Supreme Court determined that the

plaintiff in Sosa suffered an economic injury when he was charged an

additional service charge, even though he was credited for the overcharge.

Id. at 117. The economic injury constituted "an actual injury . . . for which

the relief sought will grant redress.” Id. Like State v. J.P., the court in

Sosa also cited to the "distinct and palpable, not abstract or hypothetical”

standard for injury. Id.

2. Federal Standing Law

We also find federal case law as to standing to be persuasive. Maestas

v. State, 76 So. 3d 991, 994 (Fla. 4th DCA 2011). In Sosa, the Florida

Supreme Court also cited with approval the heart of federal standing

requirements by noting that to satisfy a standing requirement for a class

action claim, a "class representative must illustrate that a case or

controversy exists between him or her and the defendant, and that this

case or controversy will continue throughout the existence of the

litigation.” Sosa, 73 So. 3d at 116 (emphasis added). This "case or

controversy” standard remains central to federal standing analysis. See

Lujan, 504 U.S. at 574.

Plaintiff's case is similar to Muransky v. Godiva Chocolatier, Inc. Like

this case, the plaintiff in Muransky also received a receipt with ten digits

of his credit card number. 979 F.3d at 922. Muransky's identity was

never stolen, and the complaint requested only statutory damages with no

damages alleged for personal injury. Id. The Eleventh Circuit held that

Muransky did not have standing to pursue an action identical to

appellant's in this case because "alleging a statutory violation is not

enough to show injury in fact.” Id. at 924.

The Eleventh Circuit was also persuaded that Congress subsequently

issued the Clarification Act. See Credit and Debit Card Receipt

Clarification Act of 2007, Pub. L. No. 110-241 § 2(a)(1). This Clarification

Act noted that "hundreds of lawsuits” had been filed for receipts printed

with card expiration dates, although "[n]one of these lawsuits contained

an allegation of harm to any consumer's identity.” Id. at § 2(a)(4)-(5).

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Congress explicitly held that cases with printed expiration dates without

further noncompliance were not willful, therefore not subjecting

companies to statutory damages. 15 U.S.C. § 1681n(a), (d). Congress

described "the continued appealing and filing of these lawsuits” as "a

significant burden on the hundreds of companies that have been sued and

could well raise prices to consumers without corresponding consumer

protection benefit.” Pub. L. No. 110-241 § 2(a)(7).

Under the facts of the instant case, we find Muransky persuasive, which

aligns with our holding that appellant has not shown a concrete injury

sufficient for standing.

Muranksy relied in large part on the Supreme Court's holding in

Spokeo, Inc. v. Robins, which is also similar to the instant case. The

plaintiffs sued Spokeo for disseminating incorrect personal information on

its search engine under the Fair Credit Reporting Act ("FCRA”). 578 U.S.

at 333. The FCRA awarded damages similar to FACTA, either actual

damages or statutory damages ranging from $100 to $1,000 per violation.

Id. at 335. The Supreme Court in Spokeo held that "a bare procedural

violation, divorced from any concrete harm” did not confer standing. Id.

at 341.

We note that Justice Thomas's concurrence in Spokeo also drew a

distinction in the common law between enforcing "private rights” and

"public rights.” Id. at 343. As Justice Thomas stated: "Historically,

common-law courts possessed broad power to adjudicate suits involving

the alleged violation of private rights, even when plaintiffs alleged only the

violation of those rights and nothing more. 'Private rights' are rights

'belonging to individuals, considered as individuals.'” Id. at 344 (quoting

3 W. Blackstone, Commentaries *2). In contrast, violations of public

rights, those "rights that involve duties owed 'to the whole community,

considered as a community, in its social aggregate capacity,'” require a

showing of further injury to the plaintiff. Id. at 345 (quoting 4 W.

Blackstone, Commentaries *5).

Using this paradigm, FACTA creates a "public right.” It requires

"general compliance with regulatory law.” Id. (quoting Ann Woolhander &

Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev.

689, 693 (2004)). Similar to the FCRA in Spokeo, FACTA "creates a series

of regulatory duties.” Id. at 348. "A plaintiff,” such as appellant, "seeking

to vindicate a public right embodied in a federal statute, however, must

demonstrate that the violation of that public right has caused him a

concrete, individual harm distinct from the general population.” Id. Here,

appellant did not allege that he suffered a concrete, individualized harm

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as a result of the credit card numbers being printed on his receipt. Thus,

appellant does not have an injury-in-fact that is concrete and

particularized to meet standing requirements.

The United States Supreme Court in TransUnion recently reiterated its

adherence to the three-part standing test, as cited in State v. J.P.: "[T]o

establish standing, a plaintiff must show (i) that he suffered an injury in

fact that is concrete, particularized, and actual or imminent; (ii) that the

injury was likely caused by the defendant; and (iii) that the injury would

likely be redressed by judicial relief.” TransUnion, 141 S. Ct. at 2203

(citing Lujan, 504 U.S. at 560-61).

TransUnion also stated that "this Court has rejected the proposition

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 2205 (quoting

Spokeo, 578 U.S. at 341). TransUnion reemphasized what the United

States Supreme Court said in Spokeo, that "standing requires a concrete

injury even in the context of a statutory violation.” Id. In the present case,

like in Spokeo and TransUnion, the facts lacked a concrete injury even in

the context of an alleged statutory violation. TransUnion concluded that

"[o]nly those plaintiffs who have been concretely harmed by a defendant's

statutory violation may sue that private defendant over that violation.” Id.

In TransUnion, inaccurate alerts were placed in the TransUnion credit

files. Id. at 2201. As to those plaintiffs where the false information was

disseminated, the Court found that the individuals had suffered concrete

harm. Id. at 2208-09. But as to those plaintiffs for whom false information

was never provided to third parties or never resulted in a denial of credit,

the United States Supreme Court found no concrete injury:

Here, the 6,332 plaintiffs did not demonstrate that the risk

of future harm materialized—that is, that the inaccurate

OFAC alerts in their internal TransUnion credit files were ever

provided to third parties or caused a denial of credit. Nor did

those plaintiffs present evidence that the class members were

independently harmed by their exposure to the risk itself—

that is, that they suffered some other injury (such as an

emotional injury) from the mere risk that their credit reports

would be provided to third-party businesses. Therefore, the

6,332 plaintiffs' argument for standing for their damages

claims based on an asserted risk of future harm is unavailing.

Id. at 2211.

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Similarly, in the present case, the risk of future harm to appellant is

also unavailing, since appellant kept the credit card receipt and there is

no danger that the credit card number could result in any concrete injury

to appellant.2

In summary, we find appellant did not demonstrate an injury in fact

that was “concrete,” “distinct and palpable,” and “actual or imminent.”

Failing this test, the trial court correctly granted Red Wing’s motion to

dismiss. As such, we affirm.



Affirmed.