Jeremy Meyers, individually and on behalf of others similarly situated v. Nicolet Restaurant of D E Pere , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2075
J EREMY MEYERS, individually
and on behalf of others similarly
situated,
Plaintiff‐Appellant,
v.
NICOLET R ESTAURANT OF D E P ERE , LLC,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:15‐cv‐00444 — William C. Griesbach, Chief Judge.
____________________
A RGUED NOVEMBER 3, 2016 — D ECIDED D ECEMBER 13, 2016
____________________
Before BAUER , MANION, and HAMILTON, Circuit Judges.
MANION, Circuit Judge. Jeremy Meyers appeals the district
court’s denial of class certification in this case brought under
the Fair and Accurate Credit Transactions Act (FACTA). This
is Meyers’ second putative class action under the FACTA to
reach this court in a matter of months. In the prior appeal, we
held that sovereign immunity barred Meyers’ claim against

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2 No. 16‐2075
the Oneida Tribe of Wisconsin. This time, we conclude that
Meyers lacks Article III standing. Therefore, we vacate the
judgment of the district court and remand the case with in‐
structions to dismiss for lack of jurisdiction.
I. Background
The FACTA was a 2003 amendment to the Fair Credit Re‐
porting Act (FRCA), 15 U.S.C. § 1681 et seq. As we detailed in
Meyers v. Oneida Tribe of Indians of Wis., 836 F.3d 818, 819‒20
(7th Cir. 2016) [Meyers I], Congress enacted the FACTA in re‐
sponse to what it considered to be the increasing threat of
identity theft. The provision at issue here was intended to “re‐
duce the amount of potentially misappropriateable infor‐
mation produced in credit and debit card receipts.” Id. at 820.
To that end, it provides that “[n]o 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 expira‐
tion date upon any receipt provided to the cardholder at the
point of the sale or transaction.” 15 U.S.C. § 1681c(g)(1). Each
willful violation entitles consumers to recover either “any ac‐
tual damages sustained … as a result” of the violation or stat‐
utory damages of between $100 and $1,000. Id.
§ 1681n(a)(1)(A).
As in Meyers I, the facts of this case are simple and undis‐
puted. On February 10, 2015, Meyers was given a copy of his
receipt after dining at Nicolet Restaurant of de Pere in de Pere,
Wisconsin. He noticed that Nicolet’s receipt did not truncate
the expiration date, as the FACTA requires. Two months later,
Meyers filed a putative class action complaint in district court,
purportedly on behalf of everyone who had been provided a
non‐compliant receipt at Nicolet. He sought only statutory
damages.

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No. 16‐2075 3
The district court denied Meyers’ motion for class certifi‐
cation. Although the court held that Meyers had satisfied Fed‐
eral Rule of Civil Procedure 23(a)’s four prerequisites, it de‐
nied certification because he failed to establish that class‐wide
issues would “predominate” over issues affecting only indi‐
vidual potential class members. Fed R. Civ. P. 23(b)(3); Meyers
v. Nicolet Rest. of de Pere, LLC, No. 15‐C‐444, 2016 WL 1275046,
at *7 (E.D. Wis. Apr. 1, 2016).
At the same time, Meyers was pursuing his appeal in Mey‐
ers I. On September 8, 2016, we affirmed the dismissal of that
case on sovereign immunity grounds. Because we held that
the Tribe was immune from suit, we specifically declined to
address whether Meyers had suffered a sufficient injury for
Article III standing purposes. Meyers I, 836 F.3d at 821‒22. We
also had no occasion to determine the propriety of class certi‐
fication. This appeal presents both questions. However, be‐
cause we conclude that Meyers lacks standing, we do not
reach the certification question.
II. Discussion
The Supreme Court has consistently recognized that “[n]o
principle is more fundamental to the judiciary’s proper role in
our system of government than the constitutional limitation
of federal‐court jurisdiction to actual cases or controversies.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting
Raines v. Byrd, 521 U.S. 811, 818 (1997)). Standing to sue is an
important component of that limitation. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). The requirement that liti‐
gants possess standing ensures “that courts do not decide ab‐
stract principles of law but rather concrete cases and contro‐
versies.” Sierra Club v. Marita, 46 F.3d 606, 613 (7th Cir. 1995).
In short, “[s]tanding is a threshold question in every federal

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4 No. 16‐2075
case because if the litigants do not have standing to raise their
claims the court is without authority to consider the merits of
the action.” Freedom From Religion Found., Inc. v. Zielke, 845
F.2d 1463, 1467 (7th Cir. 1988).
To establish standing, Meyers “must have suffered an in‐
jury in fact—an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (inter‐
nal quotation marks and citations omitted). He says that Con‐
gress, through the FACTA amendment, has granted him the
legal right to receive a receipt that truncates the expiration
date on his credit card. Nicolet responds that its violation has
not caused Meyers any harm.1
The parties dispute the application of the Supreme Court’s
decision last Term in Spokeo. That case is indeed highly rele‐
vant and worthy of close examination. The plaintiff there al‐
leged that Spokeo (“a Web site that allows users to search for
information about other individuals by name, e‐mail address,
or phone number”) generated a profile of him that contained
inaccurate information. Spokeo, 136 S. Ct. at 1546. Particularly,
the plaintiff alleged that his Spokeo profile “states that he is
married, has children, is in his 50’s, has a job, is relatively af‐
fluent, and holds a graduate degree.” Id. According to the
plaintiff, none of this information is accurate. Id.
Upset about the apparently false information in his pro‐
file, the plaintiff filed a putative class action arguing that
Spokeo failed to comply with four provisions of the FCRA.
1 Because we conclude Meyers has not alleged a sufficiently concrete in‐
jury, we need not address the remaining two elements of Article III stand‐
ing: causation and redressability. Lujan, 504 U.S. at 560.

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No. 16‐2075 5
These sections imposed requirements on reporting agencies
to: (1) “follow reasonable procedures to assure maximum
possible accuracy of” consumer reports, 15 U.S.C. § 1681e(b);
(2) notify providers and users of information of their obliga‐
tions under the Act, id. § 1681e(d); (3) limit the circumstances
in which agencies provide consumer reports “for employ‐
ment purposes,” id. § 1681b(b)(1); and (4) post toll‐free num‐
bers by which consumers may request reports, id. § 1681j(a).
See Spokeo, 136 S. Ct. at 1545. Like Meyers, the plaintiff in
Spokeo sought statutory damages under 15 U.S.C.
§ 1681n(a)(1)(A).
The Ninth Circuit held that the plaintiff’s allegations were
sufficient for Article III standing, but the Supreme Court va‐
cated that decision. The Court held that a concrete injury is
required “even in the context of a statutory violation.” Id. at
1549. Indeed, Congress does not have the final word on
whether a plaintiff has alleged a sufficient injury for the pur‐
poses of standing, because “not all inaccuracies cause harm or
present any material risk of harm.” Id. at 1550. More than a
“bare procedural violation, divorced from any concrete
harm” is required to satisfy Article III’s injury‐in‐fact require‐
ment. Id. at 1549.
The Ninth Circuit’s principal error was that it conflated the
two independent components of an injury‐in‐fact: concrete‐
ness and particularity. See id. at 1546, 1548. That Congress has
passed a statute coupled with a private right of action is a
good indicator that whatever harm might flow from a viola‐
tion of that statute would be particular to the plaintiff. Yet the
plaintiff still must allege a concrete injury that resulted from
the violation in his case. As Spokeo explained, “Congress’ role
in identifying and elevating intangible harms does not mean

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6 No. 16‐2075
that a plaintiff automatically satisfies the injury‐in‐fact re‐
quirement whenever a statute grants a person a statutory
right and purports to authorize that person to sue to vindicate
that right.” Id. at 1549. In other words, Congress’ judgment
that there should be a legal remedy for the violation of a stat‐
ute does not mean each statutory violation creates an Article
III injury. See Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d
583, 590–91 (7th Cir. 2016) (rejecting the argument that a vio‐
lation of the Real Estate Settlement Procedures Act, without
more, is a sufficient injury‐in‐fact after Spokeo). Such an injury
“must be ‘de facto’; that is, it must actually exist.” Spokeo, 136
S. Ct. at 1548 (citing Black’s Law Dictionary 479 (9th ed. 2009)).
That brings us to the present case. Spokeo compels the con‐
clusion that Meyers’ allegations are insufficient to satisfy the
injury‐in‐fact requirement for Article III standing. The allega‐
tions demonstrate that Meyers did not suffer any harm be‐
cause of Nicolet’s printing of the expiration date on his re‐
ceipt. Nor has the violation created any appreciable risk of
harm. After all, Meyers discovered the violation immediately
and nobody else ever saw the non‐compliant receipt. In these
circumstances, it is hard to imagine how the expiration date’s
presence could have increased the risk that Meyers’ identity
would be compromised. See id. at 1550 (“It is difficult to im‐
agine how the dissemination of an incorrect zip code, without
more, could work any concrete harm.”).2
2 Even at argument, Meyers would not say that Nicolet’s violation had
caused him any concrete harm. He staked his entire standing argument
on the statute’s grant of a substantive right to receive a compliant receipt.
But whether the right is characterized as “substantive” or “procedural,”
its violation must be accompanied by an injury‐in‐fact. A violation of a

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No. 16‐2075 7
Moreover, Congress has specifically declared that failure
to truncate a card’s expiration date, without more, does not
heighten the risk of identity theft. In the Credit and Debit
Card Receipt Clarification Act of 2007, Congress made a find‐
ing of fact that “[e]xperts in the field agree that proper trun‐
cation of the card number, by itself as required by the
[FACTA], regardless of the inclusion of the expiration date,
prevents a potential fraudster from perpetrating identity theft
or credit card fraud.” Pub. L. 110‐241, § 2(a)(6). Congress was
instead quite concerned with the abuse of FACTA lawsuits,
finding that “the continued appealing and filing of these law‐
suits represents a significant burden on the hundreds of com‐
panies that have been sued and could well raise prices to con‐
sumers without corresponding consumer protection benefit.”
Id. § 2(a)(7). That is why Congress sought to limit FACTA law‐
suits to consumers “suffering from any actual harm.” Id.
§ 2(b).
Meyers is not such a person, so he does not have standing.
We note that while we are the first circuit to address the ques‐
tion of standing in FACTA cases after Spokeo, our decision is
in accord with those of our sister circuits in similar statutory‐
injury cases.3 Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 514
statute that causes no harm does not trigger a federal case. That is one of
the lessons of Spokeo.
3 The district courts presented with the question of standing in FACTA
cases have split. For example, compare Kamal v. J. Crew Grp., Inc., No. 2:15‐
0190, 2016 WL 6133827, at *3‒4 (D.N.J. Oct. 20, 2016) (printing of first six
numbers of credit card without more was not a sufficient injury‐in‐fact, as
there was “no evidence that anyone has accessed or attempted to access
or will access Plaintiff’s credit card information”), with Wood v. J Choo
USA, Inc., _ F. Supp. 3d _, 2016 WL 4249953, at *3‒5 (S.D. Fla. Aug. 11,
2016) (failure to truncate an expiration date was sufficient for standing

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8 No. 16‐2075
(D.C. Cir. 2016) (no standing where plaintiffs alleged that de‐
partment store clerk violated District of Columbia consumer
protection statutes by asking for their zip codes, but alleged
no injury caused by the violation such as “any invasion of pri‐
vacy, increased risk of fraud or identity theft, or pecuniary or
emotional injury”); Lee v. Verizon Commc’ns., Inc., 837 F.3d 523,
529‒30 (5th Cir. 2016) (no standing where plaintiff alleged
breach of a duty under ERISA but no harm caused by the mis‐
management of the pension plan); Braitberg v. Charter
Commc’ns, Inc., 836 F.3d 925, 930‒31 (8th Cir. 2016) (no stand‐
ing where plaintiff alleged that cable company had retained
personal information in violation of Cable Communications
Policy Act, but suffered no harm because of it); Nicklaw v.
Citimortgage, Inc., 839 F.3d 998, 1002–03 (11th Cir. 2016) (no
standing where plaintiff alleged that the defendant failed to
record a satisfaction of a mortgage within the required 30
days under state statute but alleged no harm flowing from
that failure).4 In sum, we hold that without a showing of in‐
jury apart from the statutory violation, the failure to truncate
purposes because Congress has created a substantive personal right to re‐
ceive a truncated receipt).
4 The Second Circuit’s recent decision in Strubel v. Comenity Bank, No. 15‐
528‐cv, _ F.3d _, 2016 WL 6892197 (2d Cir. Nov. 23, 2016), also supports
our conclusion. There, the plaintiff sought statutory damages for four vi‐
olations of the Truth In Lending Act related to a credit card agreement that
she signed with the defendant creditor. She claimed that the bank failed
to disclose that: “(1) cardholders wishing to stop payment on an auto‐
matic payment plan had to satisfy certain obligations; (2) the bank was
statutorily obliged not only to acknowledge billing error claims within 30
days of receipt but also to advise of any corrections made during that time;
(3) certain identified rights pertained only to disputed credit card pur‐
chases for which full payment had not yet been made, and did not apply

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No. 16‐2075 9
a credit card’s expiration date is insufficient to confer Article
III standing.5
to cash advances or checks that accessed credit card accounts; and (4) con‐
sumers dissatisfied with a credit card purchase had to contact [the bank]
in writing or electronically.” Id. at *1.
The Second Circuit held that the plaintiff lacked standing on the first
two claims. With respect to the first, it held that she could not have suf‐
fered any injury because of the bank’s failure to disclose that information
because the bank did not offer an automatic payment plan. Id. at *6. Simi‐
larly, she lacked standing on the second claim because she did not allege
that the failure to disclose that information affected her credit behavior.
Id. at *7. However, the court held that the plaintiff did have standing on
the final two claims because the failure to notify cardholders of their obli‐
gations under a credit card agreement creates a real risk that cardholders
may “lose the very credit rights that the law affords [them].” Id. at *5.
Meyers’ case is similar to the former two claims in Strubel. “[I]n the
absence of a connection between a procedural violation and a concrete in‐
terest, a bare violation of the former does not manifest injury in fact.” Id.
at *4. The non‐compliant receipt did not affect his behavior, nor did it cre‐
ate any appreciable risk that the concrete interest Congress identified (the
integrity of personal identities) would be compromised. Thus, under the
Second Circuit’s analysis, Meyers lacks standing.
5 Our conclusion does not mean that the statutory damages provision of
the FCRA is rendered a nullity. Generally, “statutory damages are re‐
served for cases in which the damages caused by a violation are small or
difficult to ascertain.” Perrone v. Gen. Motors Acceptance Corp., 232 F.3d 433,
436 (5th Cir. 2000). In a future case, the plaintiff may be able to show that
a violation of the FACTA (or another provision of the FCRA) has caused
him concrete harm. That plaintiff may still seek statutory damages if the
actual damages caused by the violation are small or difficult to ascertain.
Meyers’ problem is that he has alleged no concrete harm or risk of harm.
Therefore, he cannot avail himself of Congress’ statutory damages remedy
because he lacks standing.

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10 No. 16‐2075
III. Conclusion
This case asks whether the violation of a statute, com‐
pletely divorced from any potential real‐world harm, is suffi‐
cient to satisfy Article III’s injury‐in‐fact requirement. We hold
that it is not. Therefore, neither the district court nor this court
has the authority to certify a class action. The judgment of the
district court is vacated and the case is remanded with in‐
structions to dismiss for lack of jurisdiction.
VACATED AND R EMANDED.

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