JAMES LUCAS SOUTHAM v. RED WING SHOE COMPANY, INC.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JAMES LUCAS SOUTHAM,
individually, and on behalf of other similarly situated individuals,
Appellant,
v.
RED WING SHOE COMPANY, INC.,
a Minnesota corporation,
Appellee.
No. 4D21-3338
[July 13, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Nicholas Lopane, Judge; L.T. Case No.
062019CA022281AXXXCE.
Keith J. Keogh of Keogh Law, LTD, Chicago, Illinois, Scott D. Owens of
Scott D. Owens, P.A., Hollywood, and Bret L. Lusskin of Bret L. Lusskin,
P.A., Golden Beach, for appellant.
Jordan S. Kosches of GrayRobinson, P.A., Miami, and David S. Almeida
and Mark S. Eisen of Benesch, Friedlander Coplan & Aronoff, LLP,
Chicago, Illinois, for appellee.
LEVINE, J.
Appellant, Southam, filed a class action suit alleging that appellee, Red
Wing Shoe Company, failed to comply with the requirements of the Fair
and Accurate Credit Transactions Act (“FACTA”). Appellant alleged that a
receipt he received from Red Wing contained ten digits of his credit card
number. Appellant does not allege that his credit card was used, lost, or
stolen in any way. Nor was there evidence of any danger of appellant’s
credit card being used. Appellant suffered no “economic” injury, nor any
“distinct or palpable” injury. Thus, in this case, we find “[n]o concrete
harm, no standing.” TransUnion LLC V. Ramirez, 141 S. Ct. 2190, 2200
(2021). Therefore, we find the trial court did not err in granting appellee’s
motion to dismiss since appellant lacked standing to proceed. We affirm
the other issue raised without further comment.
Facts and Procedural History
Following a purchase at a Red Wing shoe store, appellant filed a class
action suit in federal court alleging that the receipt provided by Red Wing
contained ten digits of his credit card number in violation of FACTA. 15
U.S.C. § 1681c reads as follows:
(g) Truncation of credit card and debit card numbers
(1) In general
Except as otherwise provided in this subsection, 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.
Appellant alleged that Red Wing willfully violated FACTA. A willful
violation holds the following civil liability:
(a) In general
Any person who willfully fails to comply with any requirement
imposed under this subchapter with respect to any consumer
is liable to that consumer in an amount equal to the sum of—
(1)(A) any actual damages sustained by the consumer as a
result of the failure or damages of not less than $100 and not
more than $1,000 . . . .
15 U.S.C. § 1681n.
The suit did not allege or seek to recover any actual damages. The class
members sought only statutory damages under section 1681n.
Red Wing filed a motion to stay the federal court action pending
resolution of a matter in front of the Eleventh Circuit. The federal district
court granted Red Wing’s motion to stay, “pending final resolution of the
Muransky v. Godiva Chocolatier, Inc. (No. 16-16486) appeal in the Eleventh
Circuit.” During the stay, appellant filed the action in state court 1, which
1 Actions for FACTA violations under 15 U.S.C. § 1681 are actionable in state
courts. “Federal law is enforceable in state courts . . . because the Constitution
and laws passed pursuant to it are as much laws in the States as laws passed by
2
Red Wing removed to federal court on the basis of federal question
jurisdiction.
The Eleventh Circuit held in Muransky, on facts similar to the instant
case, that “a party does not have standing to sue when it pleads only the
bare violation of a statute.” Muransky v. Godiva Chocolatier, Inc., 979 F.
3d 917, 920 (11th Cir. 2020). Thus, the parties agreed to dismiss the
federal action and remand the later-filed action to state court. Appellant
proceeded in state court on the theory that state standing was plenary and
therefore less restrictive than federal standing. Appellant’s argument for
standing is based solely on the alleged “legal injury” derived from the
statutory damages of 15 U.S.C. § 1681n(a)(1)(A).
Red Wing filed a motion to dismiss, alleging that appellant did not have
standing to bring the action because he had not suffered a concrete or
actual injury. Red Wing argued that “[a]n alleged noncompliant receipt,
without more, does not confer standing.” (emphasis omitted). Because
appellant did not allege that he had suffered any actual damages, and did
not allege that his receipt had been stolen, that another copy existed, or
that anyone else had seen the receipt, Red Wing believed it was entitled to
dismissal.
The trial court granted Red Wing’s motion to dismiss, finding that
Florida requires a concrete injury to have standing, which appellant did
not argue he sustained. The trial court held that alleging a mere statutory
violation does not convey standing per se. Rather, “Plaintiff must have a
concrete, non-hypothetical injury. Merely obtaining a receipt in alleged
violation of FACTA does not satisfy this requirement.” This appeal follows.
Legal Analysis
We review de novo the dismissal for lack of standing. Wilmington Sav.
Fund Soc’y, FSB v. Stevens, 290 So. 3d 115, 117 (Fla. 4th DCA 2020).
1. Florida Standing Law
In Florida, judicial authority and the courts emanate from article V,
section 1 of the Florida Constitution. Access to the courts is derived from
article I, section 21 (1968), which states that “[t]he courts shall be open to
the state legislature.” Howlett By & Through Howlett v. Rose, 496 U.S. 356, 367
(1990). Thus, “a state court may not close its doors to claims of right finding
their source in federal law.” Brown v. Butterworth, 831 So. 2d 683, 689 (Fla. 4th
DCA 2002).
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every person for redress of any injury, and justice shall be administered
without sale, denial or delay.” “Redress” is defined as being “the receiving
satisfaction for an injury sustained.” Black’s Law Dictionary (4th ed.
1968). “[I]njury” is further defined as “[a]ny wrong or damage done to
another, either in his person, rights, reputation, or property.” Black’s Law
Dictionary (4th ed. 1968). Consequently, key points can be derived from
a plain reading of these Constitutional provisions. Florida courts were
conceived and designed to be available for those seeking redress for an
injury sustained, whether that injury is enumerated as a wrong or by
damages.
Florida courts are generally considered “tribunals of plenary
jurisdiction.” Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 720 (Fla.
1994). Whereas federal standing doctrine emanates from Article III of the
United States Constitution which “limits the jurisdiction of federal courts
to ‘Cases’ and ‘Controversies.’” Lujan v. Defenders of Wildlife, 504 U.S.
555, 559 (1992). Still, Florida jurisdiction clearly has limitations. “While
‘the Florida Constitution guarantees . . . access to our courts for redress
of injuries, [citation omitted] that right has never been understood as a
limitless warrant to bring the worlds [sic] litigation here.” Tananta v.
Cruise Ships Catering & Servs. Int’l., N.V., 909 So. 2d 874, 888 (Fla. 3d
DCA 2004) (citation omitted) (alteration in original). Thus, “except as
otherwise required by the constitution, Florida recognizes a general
standing requirement in the sense that every case must involve a real
controversy as to the issue or issues presented.” Kuhnlein, 646 So. 2d at
720.
The Florida Supreme Court has stated that there are “three
requirements that constitute the ‘irreducible constitutional minimum’ for
standing. First, a plaintiff must demonstrate an ‘injury in fact,’ which is
‘concrete,’ ‘distinct and palpable,’ and ‘actual or imminent.’ Second, a
plaintiff must establish ‘a causal connection between the injury and the
conduct complained of.’” State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla.
2004) (citations omitted). Finally, “a plaintiff must show ‘a “substantial
likelihood” that the requested relief will remedy the alleged injury in fact.’”
Id. (citation omitted).
The Florida Supreme Court’s standing analysis in State v. J.P. has been
cited with approval and utilized in other Florida cases analyzing standing
since it was issued. See Giuffre v. Edwards, 226 So. 3d 1034, 1039 (Fla.
4th DCA 2017) (quoting the “three minimal requirements for standing” and
finding that the plaintiff did not meet the third requirement); DeSantis v.
Fla. Educ. Ass’n, 306 So. 3d 1202, 1213 (Fla. 1st DCA 2020) (denying
standing under J.P. where the appellees established none of the three
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standing elements); see also Cmty. Power Network Corp. v. JEA, 327 So.
3d 412, 415 (Fla. 1st DCA 2021) (finding that the plaintiff lacked standing
where it did not prove that the defendant’s action caused it harm).
Of key importance in the present case is the first prong of the three-
part test, that requiring the alleged injury to be “concrete,” “distinct and
palpable,” and “actual or imminent.” In the present case, where appellant
kept the credit card receipt with the ten digits listed, no actual damages
occurred since nothing was alleged to have been charged to appellant’s
account. Nor was there an imminent possibility of injury, since appellant
retained possession of the receipt. A material risk of harm may be
sufficient in certain circumstances to meet the concreteness requirement;
however, there is no risk of harm at all here as appellant has possessed
and retained his receipt. See Spokeo, Inc. v. Robins, 578 U.S. 330, 341-43
(2016).
Appellant alleges that a FACTA violation without resulting harm
enables him to sue for statutory damages. However, a purely illegal action
in the absence of resulting harm does not confer standing on an individual.
Rather, “individuals ‘must allege some threatened or actual injury
resulting from the putatively illegal action.’” Olen Props. Corp. v. Moss, 981
So. 2d 515, 517 (Fla. 4th DCA 2008) (quoting Linda R.S. v. Richard D., 410
U.S. 614, 617 (1973)). This court found that the plaintiff in Olen Properties
had standing because she alleged to have actually been charged an illegal
cancellation fee at the conclusion of her lease. Id. at 518; see also Terzis
v. Pompano Paint & Body Repair, Inc., 127 So. 3d 592, 596 (Fla. 4th DCA
2012) (“Here, the plaintiff alleged an actual injury resulting from the
putatively illegal action.”). Thus, here, Red Wing’s purely illegal action of
printing too many digits on appellant’s receipt does not confer standing to
maintain a suit, because appellant did not “allege some threatened or
actual injury resulting from the putatively illegal action.” See Olen Props.
Corp., 981 So. 2d at 517. Appellant makes neither such allegation;
therefore, he cannot bring this suit.
Appellant cites to Kuhnlein and Kaklamanos, but both cases dealt with
imminency of an injury, not concreteness. See Kuhnlein, 646 So. 2d at
720 (finding standing to challenge a $295 impact fee for plaintiffs who had
not yet paid the fee, nor requested a refund of the fee, where “[t]he fact
that these plaintiffs face penalties for failure to pay an allegedly
unconstitutional tax is sufficient to create standing under Florida law”);
Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003) (finding no
requirement for medical providers to institute a collection action against
insured parties prior to suing insurers for unpaid benefits). The imminent
economic injuries in both cases were certain to occur and therefore were
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“concrete,” even if they had not yet been suffered by the plaintiff. In this
case, there is no allegation that appellant will be harmed by the improper
receipt. Again, there is also not a risk of imminent injury as appellant is
still in possession of the improper receipt.
Further, like in federal court, standing for a class action claim requires
a “case or controversy” between the parties, which exists “if a party alleges
an actual or legal injury.” Sosa v. Safeway Premium Fin. Co., 73 So. 3d
91, 116-17 (Fla. 2011). The Florida Supreme Court determined that the
plaintiff in Sosa suffered an economic injury when he was charged an
additional service charge, even though he was credited for the overcharge.
Id. at 117. The economic injury constituted “an actual injury . . . for which
the relief sought will grant redress.” Id. Like State v. J.P., the court in
Sosa also cited to the “distinct and palpable, not abstract or hypothetical”
standard for injury. Id.
2. Federal Standing Law
We also find federal case law as to standing to be persuasive. Maestas
v. State, 76 So. 3d 991, 994 (Fla. 4th DCA 2011). In Sosa, the Florida
Supreme Court also cited with approval the heart of federal standing
requirements by noting that to satisfy a standing requirement for a class
action claim, a “class representative must illustrate that a case or
controversy exists between him or her and the defendant, and that this
case or controversy will continue throughout the existence of the
litigation.” Sosa, 73 So. 3d at 116 (emphasis added). This “case or
controversy” standard remains central to federal standing analysis. See
Lujan, 504 U.S. at 574.
Plaintiff’s case is similar to Muransky v. Godiva Chocolatier, Inc. Like
this case, the plaintiff in Muransky also received a receipt with ten digits
of his credit card number. 979 F.3d at 922. Muransky’s identity was
never stolen, and the complaint requested only statutory damages with no
damages alleged for personal injury. Id. The Eleventh Circuit held that
Muransky did not have standing to pursue an action identical to
appellant’s in this case because “alleging a statutory violation is not
enough to show injury in fact.” Id. at 924.
The Eleventh Circuit was also persuaded that Congress subsequently
issued the Clarification Act. See Credit and Debit Card Receipt
Clarification Act of 2007, Pub. L. No. 110-241 § 2(a)(1). This Clarification
Act noted that “hundreds of lawsuits” had been filed for receipts printed
with card expiration dates, although “[n]one of these lawsuits contained
an allegation of harm to any consumer’s identity.” Id. at § 2(a)(4)-(5).
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Congress explicitly held that cases with printed expiration dates without
further noncompliance were not willful, therefore not subjecting
companies to statutory damages. 15 U.S.C. § 1681n(a), (d). Congress
described “the continued appealing and filing of these lawsuits” as “a
significant burden on the hundreds of companies that have been sued and
could well raise prices to consumers without corresponding consumer
protection benefit.” Pub. L. No. 110-241 § 2(a)(7).
Under the facts of the instant case, we find Muransky persuasive, which
aligns with our holding that appellant has not shown a concrete injury
sufficient for standing.
Muranksy relied in large part on the Supreme Court’s holding in
Spokeo, Inc. v. Robins, which is also similar to the instant case. The
plaintiffs sued Spokeo for disseminating incorrect personal information on
its search engine under the Fair Credit Reporting Act (“FCRA”). 578 U.S.
at 333. The FCRA awarded damages similar to FACTA, either actual
damages or statutory damages ranging from $100 to $1,000 per violation.
Id. at 335. The Supreme Court in Spokeo held that “a bare procedural
violation, divorced from any concrete harm” did not confer standing. Id.
at 341.
We note that Justice Thomas’s concurrence in Spokeo also drew a
distinction in the common law between enforcing “private rights” and
“public rights.” Id. at 343. As Justice Thomas stated: “Historically,
common-law courts possessed broad power to adjudicate suits involving
the alleged violation of private rights, even when plaintiffs alleged only the
violation of those rights and nothing more. ‘Private rights’ are rights
‘belonging to individuals, considered as individuals.’” Id. at 344 (quoting
3 W. Blackstone, Commentaries *2). In contrast, violations of public
rights, those “rights that involve duties owed ‘to the whole community,
considered as a community, in its social aggregate capacity,’” require a
showing of further injury to the plaintiff. Id. at 345 (quoting 4 W.
Blackstone, Commentaries *5).
Using this paradigm, FACTA creates a “public right.” It requires
“general compliance with regulatory law.” Id. (quoting Ann Woolhander &
Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev.
689, 693 (2004)). Similar to the FCRA in Spokeo, FACTA “creates a series
of regulatory duties.” Id. at 348. “A plaintiff,” such as appellant, “seeking
to vindicate a public right embodied in a federal statute, however, must
demonstrate that the violation of that public right has caused him a
concrete, individual harm distinct from the general population.” Id. Here,
appellant did not allege that he suffered a concrete, individualized harm
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as a result of the credit card numbers being printed on his receipt. Thus,
appellant does not have an injury-in-fact that is concrete and
particularized to meet standing requirements.
The United States Supreme Court in TransUnion recently reiterated its
adherence to the three-part standing test, as cited in State v. J.P.: “[T]o
establish standing, a plaintiff must show (i) that he suffered an injury in
fact that is concrete, particularized, and actual or imminent; (ii) that the
injury was likely caused by the defendant; and (iii) that the injury would
likely be redressed by judicial relief.” TransUnion, 141 S. Ct. at 2203
(citing Lujan, 504 U.S. at 560-61).
TransUnion also stated that “this Court has rejected the proposition
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.” Id. at 2205 (quoting
Spokeo, 578 U.S. at 341). TransUnion reemphasized what the United
States Supreme Court said in Spokeo, that “standing requires a concrete
injury even in the context of a statutory violation.” Id. In the present case,
like in Spokeo and TransUnion, the facts lacked a concrete injury even in
the context of an alleged statutory violation. TransUnion concluded that
“[o]nly those plaintiffs who have been concretely harmed by a defendant’s
statutory violation may sue that private defendant over that violation.” Id.
In TransUnion, inaccurate alerts were placed in the TransUnion credit
files. Id. at 2201. As to those plaintiffs where the false information was
disseminated, the Court found that the individuals had suffered concrete
harm. Id. at 2208-09. But as to those plaintiffs for whom false information
was never provided to third parties or never resulted in a denial of credit,
the United States Supreme Court found no concrete injury:
Here, the 6,332 plaintiffs did not demonstrate that the risk
of future harm materialized—that is, that the inaccurate
OFAC alerts in their internal TransUnion credit files were ever
provided to third parties or caused a denial of credit. Nor did
those plaintiffs present evidence that the class members were
independently harmed by their exposure to the risk itself—
that is, that they suffered some other injury (such as an
emotional injury) from the mere risk that their credit reports
would be provided to third-party businesses. Therefore, the
6,332 plaintiffs’ argument for standing for their damages
claims based on an asserted risk of future harm is unavailing.
Id. at 2211.
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Similarly, in the present case, the risk of future harm to appellant is
also unavailing, since appellant kept the credit card receipt and there is
no danger that the credit card number could result in any concrete injury
to appellant. 2
In summary, we find appellant did not demonstrate an injury in fact
that was “concrete,” “distinct and palpable,” and “actual or imminent.”
Failing this test, the trial court correctly granted Red Wing’s motion to
dismiss. As such, we affirm.
Affirmed.
DAMOORGIAN and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 The present case concerned retrospective damages and not future harm:
As [the Supreme Court] has recognized, a person exposed to a risk
of future harm may pursue forward-looking, injunctive relief to
prevent the harm from occurring, at least so long as the risk of harm
is sufficiently imminent and substantial.
But a plaintiff must “demonstrate standing separately for each
form of relief sought.” Therefore, a plaintiff’s standing to seek
injunctive relief does not necessarily mean that the plaintiff has
standing to seek retrospective damages.
Id. at 2210 (citations omitted).
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