No Injury; No Standing. Pennsylvania Superior Court Tosses FACTA Suit For Lack of Standing Under Pennsylvania Law

May 18, 2023

Types : Press Releases

PHILADELPHIA, PA – In an important case on Pennsylvania’s standing doctrine, the Superior Court handed down its opinion on May 16, 2023, in Gennock v. Kirkland’s, Inc., No. 462 WDA 2022, holding that the plaintiffs lacked standing to sue for a bare statutory violation of the Fair and Accurate Credit Transactions Act (“FACTA”), 15 U.S.C. § 1681, et seq. The plaintiffs brought this lawsuit on behalf of a nationwide class of consumers who had received receipts containing the first six and last four digits of their credit or debit card numbers. The receipts violated printing requirements under section 1681c(g) of FACTA. But, aside from this violation, the plaintiffs alleged no actual harm. And their complaint’s assertion of an increased risk of identity theft was belied by the fact that nothing had happened in the many years since the plaintiffs were handed the receipts.

The plaintiffs nevertheless convinced the trial court in Lawrence County they had standing under Pennsylvania law. A team of Montgomery McCracken lawyers—led by John G. Papianou, Patrick T. Ryan, Robert E. Day, and Leah Tedford—appealed that decision on behalf of Kirkland’s, arguing that the plaintiffs’ theory of standing violated the Commonwealth’s “core concept” of standing: that the plaintiffs suffer an adverse effect. See Wm. Penn Parking Garage, Inc. v. Pittsburgh, 346 A.2d 269, 280 (Pa. 1975). The Superior Court agreed, reversing the trial court order and dismissing the complaint.

The opinion comes on the heels of consensus that has built up among the US Courts of Appeals that bare statutory violations do not sufficiently establish a concrete injury and thus do not confer Article III standing. The plaintiffs have thus brought bare-statutory-violation cases like this one in state courts, testing the limits of various states’ standing doctrines. The Superior Court’s opinion clarifies that Pennsylvania law does not diverge from federal consensus.

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