Sept. 13, 2016 – Federal law prohibits merchants from including credit card expiration dates and full credit card numbers on receipts. But a lawsuit alleging violations by the Oneida Tribe of Indians of Wisconsin may not proceed, on immunity grounds.
Jeremy Meyers and others filed a class action lawsuit alleging that the Oneida Tribe violated the Fair and Accurate Credit Transaction Act (FACTA).
The plaintiffs purchased items at two stores owned by the tribe. They received receipts that showed credit card expiration dates and more than the last five digits of the credit card number, which is prohibited by FACTA. The tribe raised an immunity defense.
The U.S. District Court for the Eastern District of Wisconsin, Judge William Griesbach, ruled that the Oneida Tribe was immune from the lawsuit.
And in Meyers v. Oneida Tribe of Indians of Wisconsin, No. 15-3127 (Sept. 8, 2016), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit affirmed, concluding that the claims were barred under the doctrine of tribal sovereign immunity.
The panel noted that tribes have tribal immunity from lawsuits, even for commercial activities, unless Congress clearly abrogates immunity by statute. Indian tribes are not listed among the “persons” who are subject to FACTA’s provisions.
“There is, however, one example of a circuit court abrogating tribal immunity without an express mention of Indian tribes somewhere in the statute, and Meyers attempts to hitch himself to this wagon,” wrote Judge Illana Rovner, noting that the Ninth Circuit Court of Appeals did so under the Bankruptcy Code.
But Judge Rovner noted that other federal courts disagree with this conclusion, holding that it would be inappropriate to infer Congress’s intentions without express language.
“We need not weigh in on the conflict between these courts on how to interpret the breadth of the term ‘other domestic governments' under the Bankruptcy Code, because we conclude that Congress simply has not unequivocally abrogated the sovereign immunity of Indian Tribes under the FACTA at issue in this case,” she wrote.
Meyers argued that Indian Tribes are “governments” and FATCA applies to governments. “Meyers misses the point,” Judge Rovner wrote.
“The district court did not dismiss his claim because it concluded that Indian Tribes are not governments. It dismissed his claim because it could not find a clear, unequivocal statement in FACTA that Congress meant to abrogate the sovereign immunity of Indian Tribes.”
Finally, Meyers argued that FACTA is a statute of “general applicability and thus applies to everyone within federal jurisdiction, including Indian Tribes." The panel noted that being subject to a federal law is different from whether a tribe can be sued under it.
