18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 593 could potentially undermine Plaintiff’s status as the class representative, but since Plaintiff’s counsel agreed to amend the retainer agreement, the Court granted Plaintiff’s motion for class certification provided that his counsel amended the agreement. With respect to the parties’ cross-motions for summary judgment, Defendant asserted that Plaintiff failed to show that the debt at issue was consumer debt. The Court rejected this theory on the basis that Defendant needed to produce some evidence of the debt’s commercial nature (since Plaintiff countered the argument by showing that he used his credit card to rent a bus from his own transportation company for a family vacation rather than for commercial reasons). The Court also opined that, because Defendant included the roman numeral “II” in the bank abbreviation only for internal recordkeeping purposes, it plainly violated the FDCPA’s prohibition on confusing and misleading communications from a creditor. Accordingly, the Court granted Plaintiff’s motion for class certification and his cross-motion for summary judgment, and denied Defendant’s cross-motion. Thomas, et al. v. Toms King (OHIO II), LLC, 2021 U.S. App. LEXIS 13884 (6th Cir. May 11, 2021). Plaintiff, a consumer, brought a putative class action alleging violations of the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) after she received a credit card receipt from Defendant that had printed on it the first six and last four digits of her credit card. The “truncation requirement” of the FACTA prohibits anyone who accepts credit or debit cards for payment from printing more than the last five digits of a customer’s card number on the receipt. Id . at *4. The District Court held that Plaintiff lacked standing because she alleged merely a threat of future harm that was not impending. The District Court reasoned that no injury had yet occurred because: (i) both sides acknowledged that the first six digits of the credit card number identified the card issuer only, (ii) Plaintiff did not allege that the receipt was lost, stolen, or viewed by a third person, (iii) Plaintiff merely speculated that Defendants had retained a copy of the receipt or its contents, and (iv) Plaintiff had safeguarded her identity by retaining the receipt. The District Court held that the complaint asserted a mere technical violation of the FACTA unaccompanied by factual allegations of any actual material risk of identity theft. Thus, the District Court ruled that the violation as alleged was purely technical because the FACTA does not prohibit the printing of the issuing institution on a credit card receipt. Because Defendants’ technical violation of the FACTA demonstrated no harm to Plaintiff’s identity, and her allegations of hypothetical future injury were insufficiently concrete to confer Article III standing, the District Court found that it lacked subject-matter jurisdiction and dismissed her complaint. On Plaintiff’s appeal, the Sixth Circuit affirmed the District Court’s order. The Sixth Circuit agreed with the District Court that Plaintiff did not have Article III standing to sue for violation of the FACTA’s “truncation requirement” because she failed to show that the statutory violation resulted in any concrete harm to her. The Sixth Circuit opined that Plaintiff did not allege a concrete injury, but rather she merely alleged a threat of future harm from the non-compliant receipts. Further, the printing of the first six digits of her credit card number did not inevitably lead to identity theft or increase the risk of identity theft because it merely identified the card issuer. The Sixth Circuit noted that Plaintiff failed to explain how knowledge of the card issuer, the card type, and the first six digits created or at least enabled actual harm or a material risk of harm. In so ruling, the Sixth Circuit rejected Plaintiff’s claim that a FACTA violation automatically created a concrete injury of increased risk of real harm and found it important that the facts as alleged in the complaint did not show an increased risk of identity theft to Plaintiff from the FACTA violation. Therefore, the Sixth Circuit determined that a hypothetical future harm was not a concrete injury. As a result, the Sixth Circuit reasoned that “a statutory-injury- for-injury’s sake” did not satisfy Article III’s injury-in-fact requirement in this case. Accordingly, the Sixth Circuit affirmed the District Court’s order dismissing Plaintiffs’ complaint. (xxxix) First Amendment Class Actions Crowe, et al. v. Oregon State Bar , 989 F.3d 714 (9th Cir. Feb. 26, 2021). Plaintiffs, a group of lawyers, brought a class action alleging First Amendment violations arising from the Oregon State Bar’s (“OSB”) requirement that lawyers must join and pay annual membership fees in order to practice law in Oregon. At the heart of Plaintiffs’ suits were two statements published alongside each other in an edition of the OSB monthly entitled the Bulletin . The first, attributed to OSB and signed by its leaders, condemned white nationalism and the "normalization of violence." Id. at 719. The second was a joint statement of the Oregon Specialty Bar Associations supporting the OSB’s statement. The OSB maintained that both statements in the Bulletin were germane to its role of improving the quality of legal services. When Plaintiffs complained about the statements, the OSB refunded $1.15 to Plaintiffs and other objectors – the portion of their membership fees used to publish the Bulletin that month. The District Court dismissed Plaintiffs’ claims. On Plaintiffs’ appeal, the Ninth Circuit