Last week the Eleventh Circuit revealed that it would schedule an en banc rehearing of its prior approval of a $6.3M class action settlement in Price v. Godiva Chocolatier Inc., et al., case number 16-16486.

The Fair and Accurate Credit Transactions Act (FACTA) states that “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.” 16 USC § 1681c(g)(1). Statutory penalties range from $100 to $1000 per violation.

Godiva admitted that it was aware of 342,025 noncompliant receipts, equating to potential exposure of over $342M.  The parties reached a settlement in 2016 and it was approved, first by the district court and then by the Eleventh Circuit.  At the time, it was reported as the third-largest FACTA settlement. 

The Eleventh Circuit, addressing concerns that class members suffered no concrete injury as  required by the U.S. Supreme Court’s opinion in Spokeo Inc. v. Robins, concluded that the lead plaintiff had demonstrated a concrete injury, despite no proof of actual identity theft, because “Godiva’s FACTA violation subjected him to a risk of real harm to the concrete interest in avoiding identity theft, the very interest that Congress sought to protect with FACTA.”

Now, however, the Spokeo argument is back on the table. Two class members petitioned for a rehearing, and the National Retail Federation, the U.S. Chamber of Commerce and the International Franchise Association filed amicus curiae briefs. They warn that allowing settlements of this magnitude for cases with no concrete hard would create “annihilative class liability.”