Fausett v. Walgreen Co.

What’s at Stake

Standing is the legal principle that decides who gets to bring a lawsuit. Traditionally, a person who experienced the violation of a statute has standing to bring a claim for that violation. For example, the federal Fair and Accurate Credit Transactions Act (FACTA) says that consumers can bring claims when a merchant doesn’t follow certain laws safeguarding credit card data. However, in recent years the U.S. Supreme Court has held that in order to sue in federal court, the person alleging the violation must also show that they suffered a “concrete injury,” distinct from the statutory violation. Following this definition, the consumer who had their rights violated would also have to prove they suffered an additional harm beyond the statutory violation (say, fraudulent charges on their credit card) before they can go to court. Meanwhile, a company that knowingly broke the law sees no consequences.

This case is about whether the state of Illinois will continue to recognize that having statutory claims is enough to sue in state court, or whether it will follow the federal courts and also require concrete harm to bring a lawsuit.

Summary

Calley Fausett used a debit card at a Walgreen drugstore and received a receipt that revealed ten digits of her card number. It’s easy for thieves to figure out the rest of a card number with that much information, and under FACTA, printed receipts may not show more than 5 digits. Ms. Fausett filed a class action suit in Illinois state circuit court, alleging that Walgreens broke the law and put her and other customers at risk for identity theft. In response, Walgreens argued that a statutory violation alone is not enough to give Ms. Fausett standing to sue, and that she had not suffered “concrete” harm (Ms. Fausett had argued the extra risk of identity theft was the harm). The court rejected Walgreen’s motion to dismiss the case and certified a nationwide class action of approximately 1.6 million people with similar debit card transactions. It concluded that, under Supreme Court of Illinois precedent, “violation of one’s rights in itself is sufficient for standing.”

The Supreme Court of Illinois granted Walgreen’s petition for leave to appeal and we filed our first amicus brief supporting Ms. Fausett on March 20, 2024. However, the Supreme Court of Illinois kicked the case back down to an Illinois appellate court on procedural grounds. The appellate court decided the case on December 18, 2024, holding that, under Illinois standing law, experiencing a statutory violation is sufficient for standing.

Walgreens has again petitioned for review in the Illinois Supreme Court. The Illinois Supreme Court granted review and briefing is underway.

Core Legal Issues

Our amicus brief argued that Ms. Fausett satisfies standing under Illinois law, and the Court should not adopt the U.S. Supreme Court’s flawed standing approach, as articulated in TransUnion v. Ramirez (2021). Additionally, any holding for Ms. Fausett would not pose federal Article II concerns, but narrowing state standing doctrine would undermine the separation of powers enshrined in the Illinois constitution.