Gesten v. Burger King Corporation

Filing 35

ORDER on Defendants Motion to Dismiss. Order granting 12 Motion to Dismiss for Lack of Jurisdiction. The Complaint is hereby dismissed without prejudice for lack of subject matter jurisdiction. Signed by Judge Robert N. Scola, Jr on 9/27/2017. (kpe)

United States District Court
for the
Southern District of Florida
Ryan D. Gesten, Plaintiff,
v.
Burger King Corporation d/b/a
Burger King, Defendant.

)
)
)
Civil Action No. 17-22541-Civ-Scola
)
)
)

Order on Defendant’s Motion to Dismiss
Plaintiff Ryan Gesten brings this putative class action against Burger
King Corporation, doing business as Burger King (“Burger King”), for alleged
violations of the Fair and Accurate Credit Transactions Act (“FACTA”). This
matter is before the Court on the Defendant’s motion to dismiss for lack of
subject matter jurisdiction (ECF No. 12). For the reasons set forth below, the
Court grants the motion to dismiss.
1. Background
On June 13, 2017, Gesten made a purchase at a Burger King restaurant
using his personal credit card. (Compl. ¶¶ 31-32, ECF No. 1.) The receipt for
his purchase displayed the first six and the last four digits of his credit card
account number. (Id. ¶ 32.) The receipt also identified that the card was a debit
card and the institution that issued the credit card (i.e. Visa, American
Express, etc.). (Id. ¶ 33.)
On July 7, 2017, Gesten filed this suit, alleging that Burger King violated
FACTA, which prohibits printing more than the last five digits of a credit card
number or the expiration date on a receipt. (Id. ¶ 57.) Gesten alleges that he
was subject to a heightened risk of identity theft and that his private
information was exposed as a result of the FACTA violation. (Id. ¶ 63.) Gesten
alleges that similar violations have taken place at dozens of Burger King’s
restaurants, and seeks to represent a class of all persons in the United States
who made a payment at a Burger King restaurant using a credit card and
received a receipt displaying more than the last five digits of the card number
and/or the expiration date. (Id. ¶¶ 36, 44.) Gesten seeks statutory damages,
punitive damages, attorneys’ fees and costs, and injunctive relief. (Id. at 14-15.)
Burger King has moved to dismiss this case for lack of subject matter
jurisdiction, arguing that Gesten has not alleged an injury in fact and therefore
lacks standing to pursue his claim.

2. Legal Standard
Because the question of Article III standing implicates subject matter
jurisdiction, it must be addressed as a threshold matter prior to the merits of
any underlying claims. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S.,
P.A., 781 F.3d 1245, 1250 (11th Cir. 2015). Article III of the Constitution
grants federal courts judicial power to decide only actual “Cases” and
“Controversies.” U.S. Const. Art. III § 2. The doctrine of standing is a “core
component” of this fundamental limitation that “determin[es] the power of the
court to entertain the suit.” Hollywood Mobile Estates Ltd. v. Seminole Tribe of
Fla., 641 F.3d 1259, 1264–65 (11th Cir. 2011) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992); Warth v. Seldin, 422 U.S. 490, 498 (1975)).
“In the absence of standing, a court is not free to opine in an advisory capacity
about the merits of a plaintiff’s claims, and the court is powerless to continue.”
Hollywood Mobile Estates Ltd., 641 F.3d at 1265 (citing CAMP Legal Def. Fund,
Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir. 2006)). A plaintiff has
standing to bring a claim if the following three elements are met: (1) the
plaintiff has suffered an injury in fact; (2) there is a causal connection between
the injury and the conduct complained of; and (3) it is likely that the injury will
be redressed by a favorable decision. Lujan, 504 U.S. at 560 (citations omitted).
At the pleading stage, the plaintiff must clearly allege facts demonstrating each
of these elements. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (internal
quotations and citations omitted).
Burger King contests only the first element. An injury in fact is “an
invasion of a legally protected interest which is (1) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at
560 (internal quotations and citations omitted). “For an injury to be
particularized, it must affect the plaintiff in a personal and individual way.”
Spokeo, Inc., 136 S. Ct. at 1548 (internal quotations and citations omitted). For
an injury to be concrete, the “injury must be ‘de facto’; that is, it must actually
exist.” Id. An injury need not be tangible in order to be concrete. Id. at 1549.
The United States Supreme Court’s decision in Spokeo, Inc. v. Robins
clarified the standing requirements implicated in lawsuits where plaintiffs are
afforded statutory damages for violations of federal statutes. 136 S. Ct. 1540.
The Court noted that “[i]n determining whether an intangible harm constitutes
injury in fact, both history and the judgment of Congress play important roles.”
Id. at 1549. The Court held that while “a bare procedural violation, divorced
from any concrete harm” cannot satisfy the injury-in-fact requirement, a “risk
of real harm” can satisfy the injury-in-fact requirement. Id. (citations omitted).
Thus, “the violation of a procedural right granted by statute can be sufficient in
some circumstances to constitute injury in fact; in such a case, a plaintiff need

not allege any additional harm beyond the one identified by Congress.” Id.
(emphasis in original) (citations omitted).
“[A] dismissal for lack of standing has the same effect as a dismissal for
lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).” Stalley ex rel.
U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir.
2008) (citing Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190, 1203 n. 42
(11th Cir. 1991)). Motions to dismiss a complaint for lack of subject matter
jurisdiction can consist of either a facial or factual attack on the complaint. Id.
(citing McElmurray v. Consol. Gov’t of Augusta – Richmond Cnty, 501 F.3d 1244,
1250 (11th Cir. 2007)). A facial attack requires the court to “merely look and
see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction,”
whereas a factual attack “challenges the existence of subject matter
jurisdiction using material extrinsic from the pleadings, such as affidavits or
testimony.” Id. at 1233-34 (citing McElmurray, 501 F.3d at 1251). “A dismissal
for lack of subject matter jurisdiction is not a judgment on the merits and is
entered without prejudice.” Id. at 1232 (citations omitted).
3. Analysis
Congress enacted FACTA in 2003 as an amendment to the Fair Credit
Reporting Act (“FCRA”), in response to the increasing threat of identity theft.
See, e.g., Meyers v. Nicolet Restaurant of De Pere, LLC, 843 F.3d 724, 725 (7th
Cir. 2016). FACTA prohibits printing “more than the last five digits of the credit
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). Any person who
willfully fails to comply with this requirement is liable for statutory damages
ranging from $100 to $1,000, punitive damages, and attorneys’ fees and costs.
15 U.S.C. § 1681n(a).
The Eleventh Circuit has not had occasion to consider the question of
standing in a case involving a violation of FACTA. However, the Second Circuit
and several district courts have held that the printing of the first six digits of a
credit card account number on a receipt does not constitute an injury in fact
because the first six digits merely identify the institution that issued the card,
and are not part of the consumer’s unique account number. Katz v. Donna
Karan Company, L.L.C., No. 15-464, 2017 WL 4126942, at *5 (2nd Cir. Sept.
19, 2017) (holding that district court did not err in finding that printing the
first six digits of a credit card number on a receipt did not result in a “material
risk of identity theft absent other allegations of harm.”); Kamal v. J. Crew Grp.,
Inc., 2017 U.S. Dist. LEXIS 91080, at *10-14 (D.N.J. June 13, 2017) (holding
that the printing of the first six digits of a credit card number does not violate
any recognized privacy interest nor does it increase the risk of future harm
since the first six digits relate to the bank or card issuer); Noble v. Nev. Checker

Cab Corp., No. 2:15-cv-02322, 2016 U.S. Dist. LEXIS 110799, at *7-9 (D. Nev.
Aug. 19, 2016) (citing In re Toys “R” Us FACTA Litig., Nos. MDL 08-01980, CV
06-08163, CV 08-06645, 2010 WL 5071073, at *11 (C.D. Cal. Aug. 17, 2010)
(same). Since Congress has not prohibited the printing of the issuing
institution on a credit card receipt, courts have held that such a technical
violation does not result in the type of harm that Congress sought to prevent
when it enacted FACTA, since the first six digits “gives an identity thief no more
personal information about a person’s account than Congress has permitted to
be printed on receipts.” Katz, 2017 WL 4126942, at *5 (noting that printing the
first six digits “is the equivalent of printing the name of the issuing institution,
information which need not be truncated under FACTA”); Noble, 2016 U.S.
Dist. LEXIS 110799 at *9-10; Kamal, 2017 U.S. Dist. LEXIS 91080 at *12.
In addition, the Seventh and Second Circuits, as well as multiple district
courts, have held that under Spokeo, a plaintiff does not have standing to
pursue a FACTA claim if the plaintiff has not suffered any actual harm or a
material risk of harm. See, e.g., Crupar-Weinmann v. Paris Baguette America,
Inc., 861 F.3d 76, 81-82 (2nd Cir. 2017) (holding that plaintiff failed to allege
that the printing of expiration date on her receipt posed a material risk of harm
to her); Meyers, 843 F.3d at 727-29 (holding that the allegations did not
demonstrate that the plaintiff suffered any harm or any appreciable risk of
harm since the plaintiff discovered the violation immediately and nobody else
saw the receipt.); Hendrick v. Aramark Corp., No. 16-4069, 2017 U.S. Dist.
LEXIS 59474, at *12-13 (E.D. Pa. April 18, 2017) (holding that merely alleging
an increased risk of identity theft due to the printing of ten digits of credit card
account number on receipt was insufficient to establish injury in fact where
plaintiff was in possession of the receipt and no one else had seen it); Paci v.
Costco Wholesale Corp., No. 16-cv-0094, 2017 WL 1196918, at *3 (N.D. Ill. Mar.
30, 2017) (holding that having to store a receipt in a safe place was insufficient
to establish injury in fact where the first six and last four digits of a credit card
account number were printed on the receipt); Stelmachers v. Verifone Sys., No.
5:14-cv-04912, 2016 U.S. Dist. LEXIS 162081, at *9-10 (C.D. Cal. Nov. 21,
2016) (holding that plaintiff did not have standing to pursue FACTA claim
where more than five digits of his credit card account were printed on a receipt,
but no one other than the plaintiff received a copy of the receipt); Thompson v.
Rally House of Kan. City., No. 15-00886, 2016 U.S. Dist. LEXIS 146146, at *1213 (W.D. Mo. Oct. 6, 2016) (holding that plaintiff did not have standing to
pursue FACTA claim based on the printing of the first six and last four digits of
his credit card account number because “there is no real risk of harm as the
improper receipt has only been in Plaintiff’s possession since receiving it from
Defendants.”).

Similar to the cases cited above, Gesten does not allege that anyone saw
the receipt other than Burger King’s employees, nor has he disputed that the
first six digits of his credit account number identify the issuing institution.
(Pl.’s Resp. in Opp. at 14 fn. 13, ECF No. 14). Thus, Gesten has only alleged a
technical violation of FACTA. The Second Circuit has noted that, in light of
Spokeo, “[a] central inquiry . . . is whether the particular bare procedural
violation may present a material risk of harm to the underlying concrete
interest Congress sought to protect.” Crupar-Weinmann, 861 F.3d at 80-81.
Based on the case law described above, the answer is a resounding no.
However, as Gesten notes, there are several opinions from district courts
within the Eleventh Circuit that have utilized a different inquiry and reached a
different conclusion. These cases hold that “FACTA creates a substantive right
for consumers to have their personal credit card information truncated on
printed receipts,” and that therefore a plaintiff has standing to pursue a claim
for a violation of this right absent any additional showing of harm. Bouton v.
Ocean Props., Ltd., 201 F.Supp.3d 1341, 1352 (S.D. Fla. 2016) (Bloom, J.)
(holding that plaintiff had standing to pursue claim that the defendant violated
FACTA by printing expiration date of credit card on receipt); Wood v. J Choo
USA, Inc., 201 F.Supp.3d 1332, 1340 (S.D. Fla. 2016) (Bloom, J.) (same); Flaum
v. Doctor’s Assocs., Inc., 204 F.Supp.3d 1337 (S.D. Fla. 2016) (Altonaga, J.)
(same); Guarisma v. Microsoft Corp., 209 F.Supp.3d 1261, 1264 (S.D. Fla. 2016)
(Altonaga, J.) (holding that defendant’s violation of FACTA by printing the first
six and last four digits of a credit card account number on a receipt constituted
a “concrete injury in and of itself” absent any additional showing of harm)1;
Altman v. White House Black Market, Inc., No. 15-cv-2451, 2016 WL 3946780,
at *6-7 (N.D. Ga. July 13, 2016) (same).
Each of these opinions either relied on Guarisma v. Microsoft Corp.,
which in turn relied on Hammer v. Sam’s E., Inc., an Eighth Circuit opinion
decided before Spokeo, or relied directly on Hammer. See, e.g., Wood, 201
F.Supp.3d at 13376 (discussing Guarisma at length); Altman, 2016 WL
3946780, at *4 (“This Court reached its conclusion after reviewing persuasive
authority, specifically the Eighth Circuit’s decision in Hammer . . . .”). In
Hammer, the Eighth Circuit stated that “the actual-injury requirement may be
satisfied solely by the invasion of a legal right that Congress created,” and held
that an alleged violation of FACTA constituted an injury in fact in and of itself
because FACTA “gave consumers the legal right to obtain a receipt at the point
of sale showing no more than the last five digits of the consumer’s credit or
debit card number.” 754 F.3d 492, 498 (8th Cir. 2014) (emphasis in original)
The court did not discuss the fact that the first six digits of a credit card number identify the
issuing institution.
1

(internal citations omitted). However, the Eighth Circuit subsequently
recognized that Spokeo superseded Hammer, noting that Spokeo requires that
“[a] concrete injury must ‘actually exist,’ and it must be ‘real,’ not ‘abstract’”.
Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 929-31 (8th Cir. 2016)
(quoting Spokeo, 136 S.Ct. at 1548) (holding that the plaintiff’s allegation that
the defendant violated the Cable Communications Policy Act by failing to
destroy the plaintiff’s personally identifiable information after he canceled his
cable services did not have standing because the plaintiff did not allege that the
information had been disclosed to third parties or used in any way). Therefore,
several courts outside of this circuit have questioned the reliance of courts
within this circuit on Guarisma and Hammer. See, e.g. Batra v. RLS
Supermarkets LLC, No. 3:16-cv-2874-B, 2017 WL 3421073, at *5 fn.4 (N.D.
Tex. Aug. 9, 2017) (stating that the cases from this circuit are unpersuasive
because they rely in part on Hammer); Lewellyn v. AZ Compassionate Care Inc.,
No. 16-04181, 2017 WL 1437632, at *3 (D. Ariz. April 24, 2017) (explicitly
disagreeing with the courts in this circuit holding that FACTA confers a
substantive right); Cruper-Weinmann v. Paris Baguette America, Inc., 235
F.Supp.3d 570, 576 n.3 (S.D.N.Y. 2017) (noting that “there is reason to
question these cases’ basis for concluding that FACTA confers such a
substantive right,” since Altman and Guarisma rely on Hammer, and Wood
relies entirely on Guarisma and Altman).
The conclusion of district courts in this circuit that the violation of a
substantive right created by Congress is sufficient on its own to confer
standing on a plaintiff is contrary to the holding of Spokeo. Although Spokeo
did note that Congress may ‘elevat[e] to the status of legally cognizable injuries
concrete, de facto injuries that were previously inadequate in law,” 136 S.Ct. at
1549 (quoting Lujan, 504 U.S. at 578), the Spokeo Court specifically cautioned
that “Congress’ role in identifying and elevating intangible harms does not
mean that a plaintiff automatically satisfies the injury-in-fact requirement
whenever a statute grants a person a statutory right and purports to authorize
that person to sue to vindicate that right. Article III standing requires a
concrete injury even in the context of a statutory violation.” Spokeo, 136 S.Ct.
at 1549; see also Meyers, 843 F.3d at 727 (noting that, under Spokeo,
“Congress’ judgment that there should be a legal remedy for the violation of a
statute does not mean each statutory violation creates an Article III injury.”).
The Spokeo Court then went on to state that a risk of real harm can, in certain
circumstances, satisfy the requirement of concreteness. Id. at 1549. In such
cases, a plaintiff “need not allege any additional harm beyond the one Congress
has identified.” Id. (emphasis in original) (citations omitted).
As support for that proposition, the Court cited to two cases that both
involved a plaintiff’s inability to obtain information that was required by federal

law to be publicly disclosed. Fed. Election Comm’n v. Akins, 524 U.S. 11, 20
(1998) (“The injury of which respondents complain – their failure to obtain
relevant information – is injury of a kind that FECA seeks to address . . . Given
the language of the statute and the nature of the injury, we conclude that
Congress, intending to protect voters such as respondents from suffering the
kind of injury here at issue, intended to authorize this kind of suit.”); Public
Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989) (“refusal to permit
appellants to scrutinize the ABA Committee’s activities to the extent FACA
allows constitutes a sufficiently distinct injury to provide standing to sue”).
Essentially, no additional showing of harm was required because in both
instances Congress had given every citizen the right to obtain the information.
These cases did not hold that an injury does not need to be concrete if it
violates a statutory right; rather, the cases held that the inability to obtain the
information was in itself a concrete injury.
In contrast to the injuries presented in right-to-information cases, the
Spokeo Court specifically stated that “[a] violation of one of the FCRA’s
procedural requirements may result in no harm.” 136 S.Ct. at 1550. The Court
provided the following example:
[E]ven if a consumer reporting agency fails to provide the
required notice to a user of the agency’s consumer
information, that information regardless may be entirely
accurate. In addition, not all inaccuracies cause harm or
present any material risk of harm. An example that comes
readily to mind is an incorrect zip code. It is difficult to
imagine how the dissemination of an incorrect zip code,
without more, could work any concrete harm.
Id. In remanding the case, the Supreme Court directed the Ninth Circuit to
decide “whether the particular procedural violations in this case entail a degree
of risk sufficient to meet the concreteness requirement.” Id.
In applying Spokeo to determine standing in other contexts, the Eleventh
Circuit has recognized that the Supreme Court “emphasized that in addition to
being particularized, intangible injuries, including statutory violations, must
still be concrete.” Perry v. Cable News Network, Inc., 854 F.3d 1336, 1340 (11th
Cir. 2017). In a post-Spokeo opinion holding that an alleged violation of the
Video Privacy Protection Act constituted a concrete injury in and of itself, the
Eleventh Circuit noted that the statute “subjects a video service provider to
liability only when that provider actually discloses the consumer’s personal
information. Supreme Court precedent has recognized in the privacy context
that an individual has an interest in preventing disclosure of personal
information.” Perry, 854 F.3d at 1340-41 (emphasis in original) (citations

omitted). In addition, in an unpublished post-Spokeo opinion, the Eleventh
Circuit recognized that, “through the [Fair Debt Collection Practices Act],
Congress has created a new right – the right to receive the required disclosures
in communications governed by the FDCPA – and a new injury – not receiving
such disclosures.” Church v. Accretive Health, Inc., 654 Fed. App’x. 990, 994
(11th Cir. 2016) (holding that an allegation that a plaintiff did not receive
required disclosures under 15 U.S.C. §§ 1692e(11) and 1692g(a)(1)-(5) is
sufficient to demonstrate that the plaintiff suffered a concrete injury).
Accordingly, this Court held that an alleged violation of the right to receive
truthful representations of the character and amount of a debt under the
FDCPA was sufficient on its own to confer standing on the plaintiff, because
Congress had determined that each person is entitled to such information.
Bacardi v. Select Portfolio Servicing, Inc., No. 16-23381, ECF No. 54 (S.D. Fla.
April 4, 2017) (Scola, J.). However, this Court held that a debt collector’s failure
to list a plaintiff’s account as “disputed by consumer” on his credit report, as
required by the FDCPA, was insufficient to confer standing because the
plaintiff had failed to show an actual injury as a result of the violation. Higgens
v. Trident Asset Mgmt., LLC, No. 16-24035, 2017 WL 1230537, at *2 (S.D. Fla.
Mar. 28, 2017) (Scola, J.) (noting that “Congress’s prohibiting certain debtcollector conduct is not equivalent to Congress’s having created a new private
right altogether.”).
This case presents a perfect example of a procedural violation that may
result in no harm, in contrast to the examples of statutory violations that
constitute concrete injuries in and of themselves. “‘FACTA arose from a desire
to prevent identity theft that can occur when card holders’ private financial
information, such as a card holder’s complete credit card number, is exposed
on electronically printed payment card receipts.’” Guarisma, 209 F.Supp.3d at
1266 (quoting Creative Hosp. Ventures, Inc. v. U.S. Liab. Ins. Co., 655
F.Supp.2d 1316, 1333 (S.D. Fla. 2009), rev’d in part, 444 Fed. Appx. 370 (11th
Cir. 2011)) (additional citations omitted). Contrary to the other courts within
this circuit to have considered the issue, the Court does not find that this
legislative history demonstrates an intent to create a right of recovery in every
case in which FACTA is violated, regardless of whether a consumer’s private
financial information is actually exposed. Rather, the Court finds persuasive
the Northern District of California’s observation that “[i]dentity theft does not
become certainly impending through a procedural violation of FACTA . . . .”
Stelmachers, 2017 WL 3968871, at *4.
In addition, the Court notes that since the passage of FACTA, Congress
has expressed concern over the number of lawsuits alleging a violation of
FACTA in which there is no allegation of actual harm. In 2008, Congress
passed the Credit and Debit Card Receipt Clarification Act (the “Clarification

Act”), which included a finding of fact that following the passage of FACTA,
hundreds of lawsuits were filed alleging that the failure to remove the
expiration date from receipts was a willful violation of FCRA, even where the
account number was properly truncated. Pub. L. 110-241 § 2(a)(4), H.R. 4008,
110th Cong. (2008), codified at 15 U.S.C. § 1681n(d). After noting that none of
these lawsuits “contained an allegation of harm to any consumer’s identity,”
Congress specifically stated that its purpose in passing the Clarification Act
was “to ensure that consumers suffering from any actual harm to their credit
or identity are protected while simultaneously limiting abusive lawsuits that do
not protect consumers but only result in increased cost to business . . . .” Id.
§§ 2(a)4-5, 2(b). Therefore, anyone who printed an expiration date on a receipt
between December 4, 2004 and June 3, 2008 was not liable for willful
noncompliance with FACTA. Id. § 3.
At least one district court in this circuit found that neither the
substantive provisions of the Clarification Act nor the intent behind it applied
to causes of action arising after June 3, 2008. See, e.g., Wood, 201 F.Supp.3d
at 1339. However, the Court finds that Congress’s stated purpose in passing
the Clarification does shed light on the proper interpretation of FACTA. That
Congress found the need to ensure that lawsuits brought under FACTA seek to
remedy actual harm reinforces this Court’s finding that FACTA’s legislative
history does not evince an intent to create a de facto concrete injury in every
instance in which FACTA is violated. The fact that the Clarification Act was
temporary does not completely eviscerate the persuasiveness of the findings of
fact on which the act was based. Indeed, both the Seventh and Second Circuits
relied on the findings of fact in the Clarification Act in analyzing whether a
violation of FACTA is sufficient on its own to confer standing. See, e.g., CruparWeinmann, 861 F.3d at 81 (finding the Clarification Act’s finding that
truncation of the credit card number, regardless of the inclusion of the
expiration date, prevents a potential fraudster from perpetrating identity theft
to be “dispositive” in determining that the plaintiff did not have standing to
pursue a “bare procedural violation of FACTA”); Meyers, 848 F.3d at 727-78
(noting that in passing the Clarification Act Congress was “quite concerned
with the abuse of FACTA lawsuits”).
Gesten argues that the disclosure of one’s private information is a
concrete harm that has long been recognized by courts, and that FACTA
recognizes a right of privacy not to have credit card account information
exposed. (Pl.’s Resp. in Opp. at 4, ECF No. 14-15.) However, Gesten has not
shown that any disclosure of his private information actually occurred. Since
Gesten took possession of the receipt at the time of the transaction (see Compl.
¶ 32), the “heightened risk of identity theft” alleged in the Complaint is a risk
that has not, and could not, materialize in this instance. Although Gesten

alleges that the information was disclosed to Burger King employees, this
“disclosure” is no different than the “disclosure” that happens any time a
consumer uses a credit card to pay for a transaction. It is not the type of harm
that Congress identified in enacting FACTA. Moreover, the additional digits of
his account number that were displayed are digits that multiple courts have
recognized identify only the issuer of the card. Gesten alleges that the issuing
institution was separately printed on the receipt, and Congress has not
prohibited the printing of the issuing institution on receipts. Therefore, the
Court finds that Gesten has not alleged that any additional private financial
information was displayed beyond that included in the last five digits of his
credit card account number, nor has he alleged that such information was
disclosed to anyone other than the employees who handled his transaction.
Based on the foregoing analysis, this Court must join the numerous
courts outside of this circuit holding that a plaintiff does not have standing to
pursue a FACTA claim absent an allegation of actual harm or a material risk of
harm. Gesten’s alleged injury is precisely the type of abstract injury that
Spokeo held was insufficient to satisfy the requirement of concreteness. See
Spokeo, 136 S.Ct. 1548 (“When we have used the adjective ‘concrete,’ we have
meant to convey the usual meaning of the term – ‘real,’ and not ‘abstract.’).
4. Conclusion
Accordingly, the Court grants the Defendant’s motion to dismiss (ECF
No. 12). The Complaint is hereby dismissed without prejudice for lack of
subject matter jurisdiction.
Done and ordered in chambers, at Miami, Florida, on September 27,
2017.
________________________________
Robert N. Scola, Jr.
United States District Judge