James Huff, individually and on behalf of all others similarly situated, Plaintiff-Appellant,
TeleCheck Services, Inc.; TeleCheck International, Inc.; First Data Corporation, Defendants-Appellees.
Argued: December 6, 2018
from the United States District Court for the Middle District
of Tennessee at Nashville. No. 3:14-cv-01832-Samuel H. Mays,
Jr., District Judge.
D. Holmes, DICKINSON WRIGHT PLLC, Nashville, Tennessee, for
R. Esquivel, BASS, BERRY & SIMS PLC, Nashville,
Tennessee, for Appellees.
D. Holmes, DICKINSON WRIGHT PLLC, Nashville, Tennessee, Scott
A. Petz, Alma Sobo, DICKINSON WRIGHT PLLC, Troy, Michigan,
R. Esquivel, Jeffrey P. Yarbro, Margaret V. Dodson, BASS,
BERRY & SIMS PLC, Nashville, Tennessee, for Appellees.
Before: BATCHELDER, SUTTON, and WHITE, Circuit Judges.
SUTTON, CIRCUIT JUDGE
case deals with a fading technology (checks) and an evergreen
imperative (Article III standing). When a customer buys
something with a check, merchants often consult a check
verification company to determine whether to accept the
check. Invoking his rights under the Fair Credit Reporting
Act, James Huff requested a copy of his file from a check
verification company called TeleCheck. The report omitted
that his driver's license was linked to six different
bank accounts and omitted two transactions that occurred on
those accounts. Huff filed this lawsuit under the Act.
Because Huff has not shown that the incomplete report injured
him in any way, we affirm the district court's dismissal
of his case for lack of standing.
retail consumer offers a check to a merchant, the customer
usually provides a form of identification such as a
driver's license. The merchant often takes the bank
account number on the check and the driver's license
number, called identifiers, and sends them to companies like
TeleCheck. TeleCheck runs each identifier through its system.
If one of the identifiers has a debt on file, TeleCheck sends
the merchant a "Code 4"-what the industry calls a
negative decline. If there is not a debt on file, TeleCheck
examines the customer's check-writing history to
determine whether to send a "Code 3"-what the
industry calls a risk-based decline. If TeleCheck recommends
a decline, the merchant refuses the customer's check. If
there are no debts on file and the customer presents a low
risk, TeleCheck approves the transaction, and the merchant
accepts the check.
customer presents two identifiers in a transaction, TeleCheck
records a link between the identifiers in its system. If in a
later transaction a customer uses only one of those
identifiers, TeleCheck recommends a Code 4 decline if there
is a debt associated with the presented identifier
or the linked identifier. Say a customer presents
his driver's license along with a check to buy milk. That
links his license number and the account number on the check
in TeleCheck's system. Then the customer bounces a check
on the same account. Now, when the customer tries to buy eggs
with a check from a different account and presents his
license, TeleCheck will see that an identifier linked to the
license-the bad bank account-shows a debt, and it will issue
a Code 4 decline. By contrast, linked identifiers play no
role in TeleCheck's Code 3 decline recommendations.
Huff often pays by check. Inspired by a legal services
advertisement, Huff requested a copy of his file from
TeleCheck under the Fair Credit Reporting Act. 15 U.S.C.
§ 1681g(a)(1). Huff provided TeleCheck with only a copy
of his driver's license. As a result, the report
contained only the 23 transactions in which he presented his
license during the past year. But the report also told Huff
that TeleCheck had more information. A bolded disclaimer at
the bottom of the report read: "Linked Data: Your record
is linked to information not included in this report, subject
to identity verification prior to disclosure. Please contact
TeleCheck at 1-800-366-1435 to verify Monday-Friday
830am-430pm CST." R. 78-6 at 3.
did not call. He sued.
driver's license as it happens contains links to six
different bank accounts: his own account, his wife's
account, and four accounts that haven't been used for
years. The accounts were linked because Huff had presented
his license in transactions alongside checks from each of the
accounts. In addition to leaving off the linked accounts, the
report did not reveal two checks from those accounts over the
past year that were not presented with Huff's license.
One of the checks was from Huff's own account, and one
was from his wife's.
has never told a merchant to decline one of Huff's checks
due to his linked information.
discovery, Huff moved for class certification, and TeleCheck
moved for summary judgment based on lack of standing. The
district court dismissed the case because Huff lacked
standing to bring it.
III of the United States Constitution limits the
"judicial Power" of the federal courts to deciding
"Cases" and "Controversies." U.S. Const.
art. III, § 2. That limitation checks the power of the
judicial branch by confining it to resolving concrete
disputes, Spokeo, Inc. v. Robins, 136 S.Ct. 1540,
1547 (2016), and checks the power of the legislative branch
by prohibiting it from using the Judiciary as an adjunct to
its own powers, see Hagy v. Demers & Adams, 882
F.3d 616, 623 (6th Cir. 2018). To protect the vital, but
limited all the same, role of the Judiciary in our system of
government, the Constitution makes standing an indispensable
ingredient of a judicial dispute.
establish standing, Huff had to show three things: (1) that
he suffered an injury, (2) caused by TeleCheck, (3) that a
judicial decision could redress. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992). The burden of
establishing standing rests with Huff, and he must provide
the allegations or evidence required at each stage of the
litigation. Id. at 561. At summary judgment, the
current stage of this litigation, Huff cannot rely on
allegations alone but must set forth evidence demonstrating
case turns on the "[f]irst and foremost" prong of
that inquiry, injury in fact. Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 103 (1998). An injury in
fact must be real, not abstract, actual, not ...