Southam v. Red Wing Shoe Co.

• Decision Date: 13 July 2022
• Docket Number: 4D21-3338
• Citation: 343 So.3d 106
• Parties: James Lucas SOUTHAM, individually, and on behalf of other similarly situated individuals, Appellant, v. RED WING SHOE COMPANY, INC., a Minnesota corporation, Appellee.
• Court: Florida District Court of Appeals

343 So.3d 106

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

District Court of Appeal of Florida, Fourth District.

[July 13, 2022]

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 , ––– U.S. ––––, 141 S. Ct. 2190, 2200, 210 L.Ed.2d 568 (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

343 So.3d 108

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 court¹ , which 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.

343 So.3d 109

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)...