Subway FACTA Class Action Lawsuit Should Be Appealed, Defendant Says

Subway continues to seek a way out of a Subway FACTA class action lawsuit following a federal judge’s denial of the company’s motion to dismiss.

Defendant Doctor’s Associates, which does business as Subway, is facing accusations by plaintiff Shane Flaum that its printed receipts show the expiration dates of customers’ credit and debit cards, in violation of federal law.

U.S. District Judge Cecilia M. Altonaga denied Subway’s motion to dismiss the claim in August 2016, then declined to allow Subway to appeal that denial.

Subway is now asking Judge Altonaga to reconsider allowing the company to appeal.

The company argues there is case law that the judge overlooked that creates a difference of opinion among other courts, and allowing the appeal now would give the appeals court a chance to resolve that conflict.

The gist of Subway’s original argument for dismissal is that Flaum failed to allege that Subway’s actions harmed him in a concrete way.

By printing the card’s expiration date on his receipt, Subway at most increased Flaum’s risk of identity theft, the company said.

But the company argued that an increased risk of harm is not the same as actual, concrete harm. Without having suffered a concrete injury, the company says, Flaum has no standing to sue.

But in her August 2016 decision, Judge Altonaga disagreed. She determined that FACTA, the law Flaum says Subway broke, creates a substantive legal right, the violation of which can create standing to sue.

The judge said that under FACTA, Flaum has a right not to have his card’s expiration date printed on his receipt. By allegedly printing the date, the judge said, Subway has created a concrete “injury-in-fact” that gives Shane standing to bring a Subway FACTA class action lawsuit.

Company Says Appeal of Subway FACTA Class Action Lawsuit Could Resolve Conflict

Although Judge Altonaga declined to let Subway appeal her denial before the Subway FACTA class action lawsuit had run its course, Subway now says other courts’ conflicting decisions on the same issue make this case a good candidate for appeal.

Under one decision by the Eleventh Circuit Court of Appeals, “material risk of harm” can be all the harm needed to give a plaintiff standing. But more than one district court has reached the opposite conclusion, Subway says.

Therefore, allowing the company to appeal the denial would give the appeals court a chance to resolve the conflict of opinions, Subway argues.

FACTA, the Fair and Accurate Credit Transactions Act, was passed as a set of amendments to the Fair Credit Reporting Act in the interest of providing consumers greater protections against credit fraud and identity theft.

The act forbids businesses from printing card expiration dates or any more than the last five digits of the card’s number on any electronically-printed receipt given to the consumer at the point of sale.

FACTA violations that were committed “willingly” can put the violator on the hook for up to $1,000 in statutory damages. Flaum argues that Subway’s alleged FACTA violations must have been “willful” because the company has been sued for FACTA violations at least four times before.

The Subway FACTA Class Action Lawsuit is Shane Flaum v. Doctor’s Associates Inc., Case No. 0:16-cv-61198 in the U.S. District Court for the Southern District of Florida.

UPDATE: On March 21, 2017, Subway agreed to pay $30.9 million to settle a class action lawsuit that accused the company of violating the Fair and Accurate Credit Transactions Act by printing credit card expiration dates on its receipts. Court documents indicate that this settlement “sets a new record” and may be the “largest FACTA settlement in the history of FACTA.”

UPDATE 2: November 2018, the Subway credit card receipt class action settlement is now open. Click here to file a claim.

UPDATE 3: On May 30, 2019, Top Class Actions viewers are starting to receive checks in the mail from the Subway class action settlement worth as much as $52.92.

Free FACTA Class Action Lawsuit Investigation

If you made one or more purchases and the retailer provided you with a receipt that contained more than the last five digits of your credit or debit card number or the expiration date, you may be eligible for a free class action lawsuit investigation and to pursue compensation for these FACTA violations.

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