YAZAN SALEH

v.

MIAMI GARDENS SQUARE ONE, INC., ETC.

Third District Court of Appeal

State of Florida

Opinion filed January 11, 2023. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-1724 Lower Tribunal No. 18-537

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Yazan Saleh, Appellant/Cross-Appellee, vs.

Miami Gardens Square One, Inc., etc., et al., Appellees/Cross-Appellants.

An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge. Bret Lusskin, P.A., and Bret L. Lusskin; Scott D. Owens, P.A., and Scott D. Owens (Hollywood); Bruce S. Rogow, P.A., and Bruce S. Rogow (Cedar Mountain, NC); The Law Office of Jibrael S. Hindi, PLLC., and Jibrael S. Hindi (Fort Lauderdale); Bruce S. Rogow, P.A., and Tara A. Campion (Boca Raton), for appellant/cross-appellee. Akerman LLP, and Christopher S. Carver (Fort Lauderdale); Akerman LLP, and Kristen M. Fiore (Tallahassee), for appellees/cross-appellants. Before EMAS, LINDSEY and GORDO, JJ. GORDO, J. Yazan Saleh appeals a trial court order granting final judgment in favor of Miami Gardens Square One, Inc. d/b/a Tootsie’s Cabaret (“Miami Gardens”) and RCI Hospitality Holdings, Inc.’s (“RCI”).¹ We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). Finding no error in the trial court’s dismissal of Saleh’s federal statutory claim, we affirm. FACTUAL AND PROCEDURAL BACKGROUND In late December 2016, Saleh visited Tootsie’s Cabaret, an adult entertainment nightclub located in Miami Gardens. Prior to leaving, Saleh gave his server two different personal credit cards to pay for the services provided. Saleh’s server returned his credit cards to him along with two printed receipts, each displaying the first six and last four digits of his credit card account numbers. Saleh kept both receipts. A month later, Saleh filed a lawsuit against Miami Gardens and RCI2 in federal court based on those receipts, arguing Miami Gardens and RCI willfully violated the Fair and Accurate Credit Transactions Act, 15 U.S.C § 1681c(g)(1) (“federal FACTA”). A year later, Saleh filed an identical federal

LEGAL ANALYSIS

We affirm in all respects based on the standing analysis in Southam v. Red Wing Shoe Co., Inc., 343 So. 3d 106, 113 (Fla. 4th DCA 2022), review denied, SC22-1052, 2022 WL 16848677 (Fla. Nov. 10, 2022) (finding the appellant lacked standing to pursue his federal FACTA claim as he did not demonstrate an injury in fact “since appellant kept the credit card receipt and there is no danger that the credit card number could result in any concrete injury to appellant”); see also Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016) (holding that “a bare procedural violation, divorced from any concrete harm” does not confer standing); Muransky v. Godiva Chocolatier, Inc., 979 F. 3d 917, 936 (11th Cir. 2020) (“Although the receipt violated the law because it contained too many digits, [Appellant] has alleged no concrete harm or material risk of harm stemming from the violation. Because this amounts to nothing more than a ‘bare procedural violation, divorced from any concrete harm,’ [Appellant] has failed to allege that he has standing to bring this lawsuit.” (quoting Spokeo, 578 U.S. at 341)). On appeal, Saleh’s counsel concedes his client did not and cannot establish he suffered an actual harm based on the receipts from Tootsie’s because he retains possession of them. Instead, Saleh asks us to broaden Florida’s standing requirements and exercise jurisdiction over the federal statutory claim because Muransky only applies to Article III standing under the United States Constitution. We find no basis to do so where Florida law also imports an injury in fact requirement under our standing framework. See State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004) (stating there are “three requirements that constitute the ‘irreducible constitutional minimum’ for standing. First, a plaintiff must demonstrate an ‘injury in fact,’ which is ‘concrete,’ ‘distinct and palpable,’ and ‘actual or imminent.’ Second, a plaintiff must establish ‘a causal connection between the injury and the conduct complained of.’ Third, a plaintiff must show ‘a “substantial likelihood” that the requested relief will remedy the alleged injury in fact.’”) (internal citations omitted).

Separately, where Saleh has sued under the federal statute, he is required to allege a legally sufficient claim pursuant to the federal FACTA statute itself. In 2008, Congress issued the Clarification Act which amended the federal FACTA statutory scheme to include actual harm. See Credit and Debit Card Receipt Clarification Act of 2007, Pub. L. No. 110-241 § 2(b), 122 Stat. 1565, 1565 (2008) (“The purpose of this Act is to ensure that consumers suffering from any actual harm to their credit or identity are protected while simultaneously limiting abusive lawsuits that do not protect consumers but only result in increased cost to business and potentially increased prices to consumers.”) (emphasis added). As recognized by the Eleventh Circuit in Muransky, the Clarification Act demonstrated Congress’s “view that some technical FACTA violations caused consumers no harm.” Muransky, 979 F. 3d at 921. Thus, mere violation of the statute absent harm cannot create a viable claim because, “there is good reason to doubt that Congress has deemed every violation of FACTA to pose a material risk of identity theft. . . . [as] Congress expressly recognized in the Clarification Act that not all violations of the truncation requirement pose a serious threat to consumers.” Id. at 932–33 (citing Pub. L. No. 110-241 § 2(b), 122 Stat. at 1566). Accordingly, because Congress clarified the purpose of the federal FACTA statutory scheme is to protect consumers from actual harm, a plaintiff must allege an actual harm to pursue a claim under the statute. As Saleh acknowledges he suffered no actual harm, we also find the trial court properly dismissed Saleh’s complaint as legally insufficient for failure to plead an actual injury under the federal FACTA statutory scheme. Affirmed.