Third Circuit Affirms that Standing Requires a “Concrete” Injury, Cruz-Alvarez and McCabe Explain

Shook Partner Frank Cruz-Alvarez and Associate Erica McCabe have authored an article for the Washington Legal Foundation’s Legal Pulse exploring the Third Circuit’s decision in Kamal v. J. Crew Grp. affirming that the plaintiffs lacked Article III standing because they could not show that the alleged violation of the Fair and Accurate Credit Transactions Act (FACTA) “actually harms or presents a material risk of harm to the underlying concrete interest.”
The plaintiffs in Kamal sued J. Crew because the receipts they received after purchases from the company’s store locations included the first six and last four digits of their credit card numbers, allegedly amount to a violation of FACTA. The district court dismissed the case for lack of standing, finding that “a mere technical violation of FACTA—especially one that did not result in any actual harm—was insufficient to establish an injury in fact,” Cruz-Alvarez and McCabe explain. 
“[P]laintiffs failed to prove they suffered from the concrete harms FACTA was enacted to protect—namely, identity theft,” Cruz-Alvarez and McCabe write. “[T]he court noted that the chain of events required for these FACTA-violating receipts to result in identity theft is far too speculative to constitute a material risk of harm.”
“Indeed, these decisions demonstrate that a growing number of circuits are hesitant to find Article III standing for procedural or statutory violations that do not result in concrete harm. However, despite a trend of favorable decisions, companies should not consider this issue settled. Companies should continue to carefully consider their compliance with state and federal regulations to avoid potentially lengthy and costly litigation,” the authors conclude.