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Austin Whitten Pittman, Dutton & HellumsLast week, this expert opinion article written by Pittman, Dutton & Hellums attorney Austin Whitten was featured by Law360, a national, prestigious legal publication.

The answer to the question posed by the headline is probably still a resounding “no” in most areas of the law. However, recent case law suggests that the Eleventh Circuit is arguably the most favorable venue for plaintiffs with consumer protection lawsuits that are based on statutory violations where no “actual” damages are alleged.

As most folks in the class-action arena are aware by now, complaints filed for alleged statutory violations of the Fair Credit Reporting Act, Telephone Consumer Protection Act, Fair Debt Collection Practices Act, Fair and Accurate Credit Transactions Act, and Video Privacy Protection Act, among others, are now routinely being met with motions to dismiss for lack of Article III standing. Specifically, defendants argue that the plaintiff(s) fails to allege any “concrete injury” suffered due to the statutory violations. This tactic has become popular since the U.S. Supreme Court issued its decision in Spokeo Inc. v. Robin[1] in 2016.

In Spokeo, the plaintiff alleged violations of the FCRA by the defendant but no actual damages in addition to the violation of the statute. The Supreme Court restated that Article III standing requires an injury-in-fact that is both concrete and particularized, and the court held that the Ninth Circuit had failed to thoroughly analyze the concreteness of the plaintiff’s alleged injuries. The court went on to clarify that the term “concrete” means “‘real,’ and not ‘abstract,’” but also that an injury does not have to be tangible to be concrete and that “Congress may ‘elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.’”[2] Since then, there has been little uniformity in the application of Spokeo and many district and circuit courts across the country have agreed with defendants’ arguments and affirmed dismissal of the consumers’ complaints.

On Oct. 3, 2018, the Eleventh Circuit took another crack at interpreting and applying Spokeo in Muransky v. Godiva Chocolatier Inc.[3] In its opinion, the court left little doubt that the bar for what constitutes a concrete injury in the statutory violation context is very low within the Eleventh Circuit. This precedential opinion does not seem to have received the attention it deserves, likely because the case was not originally appealed as a standing question.

In Muransky, the plaintiff sued Godiva for violations of FACTA, which requires merchants to mask all but the last five digits of a customer’s payment card number, as well as the expiration date, when providing printed receipts to their patrons. Muransky sued after Godiva provided him with a receipt showing the first six and last four digits of his credit card. However, this all occurred pre-Spokeo, so Godiva did not attempt to dismiss due to an alleged lack of concrete injury. Instead, Godiva eventually agreed to a class-wide settlement. The settlement was approved by the district court, but a few class members filed objections to it based on an alleged insufficiency of notice to the class, the amount of Austin Whitten attorneys’ fees, and the incentive award to the class representative. One of the objectors then raised the Spokeo issue of the class representative’s Article III standing for the first time at the fairness hearing. The district court overruled the objections, ignored the standing issue and approved the settlement. The objectors appealed.

On appeal, the Eleventh Circuit took it upon itself to analyze the plaintiff’s standing and ultimately determined that the plaintiff did in fact suffer multiple concrete injuries when he received a receipt in violation of FACTA.[4] The Muransky court focused its analysis on two of the Supreme Court’s guiding principles from Spokeo: the judgment of Congress and whether the harm from the statutory violation at issue has roots in any common law causes of action.

First, the court examined “the duties imposed and the rights conferred by FACTA,” as well as its structure and history, because Congress “is well positioned to identify intangible harms that meet minimum Article III requirements.”[5] They reached the conclusion that, because Congress had articulated a clear duty of care for merchants to uphold and also made willful violations of FACTA actionable even in the absence of actual damages, “Congress conceived of the of the harm as happening when the merchant provides a customer with an untruncated receipt.”[6]

The court’s analysis then turned to “whether the intangible harm that results from the statutory violation bears a ‘close relationship’ to harms that have ‘traditionally been regarded as providing a basis for a lawsuit in English or American courts.’”[7] They concluded that the harm from a defendant’s violation of FACTA is akin to the harms that provided basis for two separate common law torts: breach of confidence and breach of an implied bailment agreement. The court explained that, in both of these traditional torts, a customer entrusts something to a merchant, and the customer is harmed when the that trust is violated. Similarly, a customer is harmed when he entrusts his payment card information to a merchant and the merchant violates that trust by not complying with the FACTA requirements, according to the court.

By this point in the opinion, the Muransky court had already made clear that the plaintiff suffered a concrete injury just by receiving the violative receipt from the defendant and had standing to pursue his lawsuit. However, the court then went a step further to hold that the plaintiff had also sufficiently alleged additional actual injury when he pled that he received the receipt from Godiva and has kept up with it. The court pointed out that the plaintiff had to use his time and wallet space to safeguard the receipt that contained 10 digits of his credit card number. The court held that “[t]ime spent safely disposing of or keeping the untruncated receipt is, of course, a small injury, but it is enough to confer standing.”[8] Again, the Eleventh Circuit set an extremely low threshold for concrete injuries with this opinion.

The Eleventh Circuit’s conclusions in Muransky are in stark contrast to the conclusions of every other circuit court that has decided whether FACTA violations without actual damages result in concrete injury to the consumer. The Second, Seventh and Ninth circuits have all published opinions affirming the dismissal of plaintiffs’ complaints for failing to allege any concrete injury resulting from other FACTA violations.[9] Consequently, the majority of district courts around the country have been following suit.

The Eleventh Circuit’s inclusive interpretation of what constitutes a “concrete injury” in Muransky should come as no surprise for those following this issue. Muransky is just the most recent of the Eleventh Circuit’s seemingly consumer-friendly line of precedence on this issue and was a logical extension of its reasoning in previous opinions. The first decision was Church v. Accretive Health Inc.[10], an unpublished opinion decided less than two months after Spokeo was issued. The Church court held that the plaintiff had sufficiently alleged a concrete injury when the defendant violated her right to certain information created by the FDCPA. Then, in Perry v. Cable News Network Inc.[11], the court held that the defendant’s violation of the VPPA constituted a concrete injury to the plaintiff. The court reached the same conclusion in The Florence Endocrine Clinic PLLC v. Arriva Medical LLC [12] for alleged violations of the TCPA, and again in Pedro v. Equifax Inc.[13] for alleged violations of the FCRA.[14] These decisions are all still the controlling law in the Eleventh Circuit at this point, and it’s hard to imagine an abrupt change of course anytime soon unless the Supreme Court weighs in again.[15]

However, there is one appeal currently pending in front of the Eleventh Circuit that may test the limits of what constitutes a concrete injury. Oral arguments recently took place in Salcedo v. Hanna, et al.[16] over whether a single, unsolicited text message allegedly sent in violation of the TCPA causes sufficient harm to confer standing upon the recipient. If the court continues its trend and concludes the Salcedo plaintiff suffered a concrete injury from receiving the text message, it will become even more difficult to argue that the Eleventh Circuit has not become one of the most “consumer friendly” circuits in this area of law.

So, whether you’re looking for a place to file a new lawsuit based on a statutory violation or you’re advising a corporate client that’s considering challenging a plaintiff’s standing, you must bear in mind that district courts in the Eleventh Circuit are going to be applying some of the most consumer-friendly precedence in the country — even if that’s only true in regards to the narrow, threshold issue of concrete injury in an Article III standing analysis.

[1] Spokeo, Inc. v. Robins, 136 S. Ct 1540 (May 13, 2016).

[2] Id. 136 S. Ct. at 1548-1549.

[3] Muransky v. Godiva Chocolatier Inc ., 2018 U.S. App. LEXIS 27980 (11th Cir. Oct. 3, 2018).

[4] The court also thoroughly discussed the other issues originally raised by the objectors and created guiding precedent in those areas as well, ultimately confirming the terms of the settlement.

[5] Id. 2018 U.S. App. LEXIS 27980 at *11

[6] Id. 2018 U.S. App. LEXIS 27980 at *16

[7] Id. 2018 U.S. App. LEXIS 27980 at *11

[8] Id. 2018 U.S. App. LEXIS 27980 at *18

[9] Bassett v. ABM Parking Servs. Inc., 883 F.3d 776 (9th Cir. 2018); Katz v. Donna Karan Co., 872 F.3d 114, 116 (2d Cir. 2017); Crupar-Weinmann v. Paris Baguette Am. Inc., 861 F.3d 76 (2d Cir. 2017); Meyers v. Nicolet Rest. of De Pere LLC, 843 F.3d 724 (7th Cir. 2016).

[10] Church v. Accretive Health Inc., 654 Fed. Appx. 990 (11th Cir. July 6, 2016)

[11] Perry v. Cable News Network, 854 F.3d 1336 (11th Cir. April 27, 2017)

[12] Florence Endocrine Clinic PLLC v. Arriva Med. LLC, 858 F.3d 1362, 1366 (11th Cir. 2017)

[13] Pedro v. Equifax Inc., 868 F.3d 1275 (11th Cir. 2017)

[14] While the Eleventh Circuit concluded the plaintiffs had standing in all these opinions, it must be noted that the court went on to affirm dismissal of some of them for other reasons.

[15] The Supreme Court may weigh in on the issue sooner rather than later: on Nov. 6, 2018, the justices called for additional briefing on the issue of the plaintiffs’ standing in Frank v. Gaos, S. Ct. Docket No. 17-961, a class-settlement appeal that was recently argued.

[16] Salcedo v. Hanna, 11th Cir. Docket No. 17-14077

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