Seventh Circuit to FACT Act Plaintiff: What's Your Damage?

The Seventh Circuit Court of Appeals dismissed a class action lawsuit against Shell Oil this week, finding that the company did not willfully violate the Fair and Accurate Credit Transactions Act (FACT Act) by printing the last four digits of customers’ account numbers on gas pump receipts, Reuters reports.

The FACT Act requires that companies truncate credit card numbers on electronically-printed receipts to combat identity theft. The Act states that receipts must not display more than the last five digits of a card number, but it doesn't define “card number.”

A Shell Card displays 14 numbers on the front of each card. In Shell lingo, the first nine digits are the "account number,' and the final five digits are the "card number." Shell Oil receipts display the last four digits of the account number.

Plaintiff Natalie Van Straaten claimed that Shell's choice of digits left Shell cardholders at risk of identity theft. According to Van Straaten, only the last 4 or 5 digits of the 18-digit number encoded on the magnetic strip on the back of the card should be printed.

Seventh Circuit Chief Judge Frank Easterbrook questioned why anyone would care how the term "card number" is defined. "A precise definition does not matter as long as the receipt contains too few digits to allow identity theft," Easterbrook wrote. "The [FACT] Act does its work by limiting the number of exposed digits, and Shell Oil printed one fewer digit than the Act allows."

Keep in mind that Van Straaten didn't allege that she had suffered an injury. Instead, she sought the statutorily prescribed actual damages of "Not less than $100 and not more than $1000" for willful FACT Act violations. Multiplied by the total number of Shell Card holders who have used their cards at Shell stations, the court noted that Shell Oil's total liability would exceed $1 billion, "despite the absence of a penny's worth of injury."

The Seventh Circuit Court of Appeals dismissed Van Straaten's class action lawsuit, holding that Shell Oil did not willfully violate the FACT Act by printing part of the account number instead of the card number.

Seventh Circuit judges seem willing to kill class action lawsuits in interlocutory appeals when class members have not suffered a real injury. Before you get into the statutory-damages class action game, think about whether your class has actually suffered a harm.

Related Resources:

• Van Straaten v. Shell Oil (Seventh Circuit Court of Appeals)
• No En Banc Rehearing for Merrill Lynch Class Action Certification (FindLaw's Seventh Circuit Blog)
• Redbox Wins Interlocutory Appeal in VPPA Lawsuit (FindLaw's Seventh Circuit Blog)