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Eleventh Circuit sua sponte vacates prior Spokeo opinion

Last October, we reported here how the Eleventh Circuit in Muransky v. Godiva had broken with other circuits regarding the application of the Supreme Court’s opinion in Spokeo v. Robins. Last week, the Eleventh Circuit sua sponte vacated its October 2018 opinion and issued a new opinion.

Like its earlier opinion, the Court’s April 2019 opinion held there was a concrete injury sufficient to support standing. The Court reiterated its conclusion was based on (1) the close relationship between the risk of identity theft and the common law tort of breach of confidence and (2) the Court’s finding that Congress judged the risk of identity theft Mr. Muransky suffered to be sufficiently concrete to confer standing.

The April opinion argued the Eleventh Circuit’s holding was not actually in conflict with conclusions reached by the Second, Seventh, and Ninth Circuits in recent FACTA cases (discussed in our original post). The Court explained that those cases involved merchants printing receipts that include a credit card expiration date, whereas the merchant in Muransky printed the first six and last four digits of Mr. Muransky’s credit card number on his receipt. The April opinion also addressed a Third Circuit opinion issued in March 2019 – Kamal v. J. Crew Grp., Inc., 918 F.3d 102 (3d Cir. 2019) – which reached a different conclusion regarding the Credit and Debit Card Receipt Clarification Act of 2007 than the Eleventh Circuit reached in Muransky.

Despite the publication of this new opinion, we may not have heard the last of Muransky from the Eleventh Circuit. A petition for rehearing en banc, filed by Godiva and supported by amicus briefs from the Chamber of Commerce of the United States of America and Six Flags Entertainment Corporation is still pending before the court.