                                                                                       FILED
                               NOT FOR PUBLICATION
                                                                                       MAR 09 2018

                       UNITED STATES COURT OF APPEALS                              MOLLY C. DWYER, CLERK
                                                                                     U.S. COURT OF APPEALS


                               FOR THE NINTH CIRCUIT

BRETT NOBLE; et al.,                                   No.     16-16573

                   Plaintiffs-Appellants,              D.C. No.
                                                       2:15-cv-02322-RCJ-VCF
     v.

NEVADA CHECKER CAB                                     MEMORANDUM*
CORPORATION, DBA Checker Cab
Company; et al.,

                   Defendants-Appellees.


                      Appeal from the United States District Court
                               for the District of Nevada
                      Robert Clive Jones, District Judge, Presiding

                       Argued and Submitted November 17, 2017
                               San Francisco, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON,** District
Judge.

          Appellants contend that Appellee taxi companies have violated the Fair and

Accurate Credit Transactions Act of 2003 by printing and distributing receipts that

*
       This disposition is not appropriate for publication and is not precedent except as provided
by Ninth Circuit Rule 36-3.
**
         The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska,
sitting by designation.
contain the first digit as well as the final four digits of the cardholder’s credit card

number. Appellants do not allege that a breach of privacy occurred, nor do they

point to any tangible harms resulting from Appellees’ violations. Thus, the

question before this Court is whether Appellants have alleged harm sufficient to

warrant standing under Article III of the Constitution.

                                   BACKGROUND

      The Fair and Accurate Credit Transactions Act of 2003 (“FACTA”), Pub. L.

No. 108-159, 117 Stat. 1952, amended the Fair Credit Reporting Act (“FCRA”) to

provide that “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.” 15 U.S.C. § 1681c(g)(1). The statute provides for “any actual

damages sustained by the consumer as a result” or statutory damages between $100

and $1,000 per violation, plus costs and attorney's fees, and potential punitive

damages. Id. § 1681n(a).

      Appellants alleged that the credit card receipts printed by Appellees

contained the first digit in addition to the last four digits. Appellants do not allege

that the receipts were given to anyone other than the individual cardholders who

made the purchases.


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      Appellants filed suit in the District of Nevada, naming as a class all

consumers receiving such receipts within the two-year period preceding the filing

of the complaint. On August 19, 2016, the district court granted Appellees’ motion

to dismiss Appellants’ Second Amended Complaint. Appellants timely appealed.

                                      ANALYSIS

      The situation in this case resembles a number of recent cases which have

addressed when a plaintiff has standing to sue under a statutory damages provision.

See, e.g., Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549-50 (2016) (holding that

because “Article III standing requires a concrete injury even in the context of a

statutory violation . . . [Plaintiffs] cannot satisfy the demands of Article III by

alleging a bare procedural violation”). One of our recent opinions addressed facts

very similar to this case. In Bassett v. ABM Parking Services, Inc., _ F.3d _, 2018

WL 987954 (9th Cir. Feb. 21, 2018), the plaintiff alleged that defendants violated

FACTA by printing a receipt that included the plaintiff’s credit card expiration

date. Citing Spokeo, we held that the plaintiff had not alleged a concrete injury

sufficient to warrant Article III standing because he “did not allege that another

copy of the receipt existed, that his receipt was lost or stolen, that he was the victim

of identity theft, or even that another person apart from his lawyers viewed the

receipt.” Id. at *6. Nor did plaintiff “allege that any risk of harm is real, ‘not


                                            3
conjectural or hypothetical,’ given that he could shred the offending receipt along

with any remaining risk of disclosure.” Id. (citing Lujan v. Defs. of Wildlife, 504

U.S. 555, 560 (1992)).

      As in Bassett, Appellants here did not allege that anyone else had received or

would receive a copy of their credit card receipts. As in Bassett, Appellants’

alleged injury depended entirely on a FACTA violation. Bassett’s reasoning

controls the issue in this case, and we are bound by it. See Miller v. Gammie, 335

F.3d 889, 892-93 (9th Cir. 2003) (en banc).

      Also like in Bassett, the alleged FACTA violation here does not involve the

sort of revelation of information that Congress determined could lead to identity

theft. In Bassett, we observed that Congress had suggested that the alleged

violations of FACTA were not concrete by passing a law that included a “finding

that a disclosed expiration date by itself poses minimal risk” and temporarily

eliminated statutory damage liability for such violations. 2018 WL 987954, at *5.

Likewise, here, the first digit of a credit card number merely identifies the brand of

the card, and Congress has not prohibited printing the identity of the credit card

issuer along with the last five digits of the credit card number. Thus, giving the

deference to Congress’s expertise that Spokeo requires, 136 S. Ct. at 1549,

confirms that Appellants lack standing here.


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AFFIRMED.




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