Zevon v. American Express Company

Background

Marcy Zevon, an American Express cardholder, brought a proposed class action alleging that American Express failed to include a disclosure required by the Truth in Lending Act (TILA) on her monthly billing statements. The statements included an address and telephone number for billing inquiries but did not explain that a consumer who disputed a charge only by telephone would not preserve the right to have the charge reduced or removed. Zevon alleged that this information appeared in her card agreement but was not clearly and conspicuously repeated on the statements.

Zevon received statements from June through September 2019. She did not claim that she submitted or attempted to submit a billing-error inquiry. Instead, she alleged that she could not determine from the statements that preserving her billing rights depended on the method used to contact American Express. She sought statutory and actual damages, costs, and attorneys’ fees.

Motion to Dismiss and Standing

American Express moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that Zevon lacked Article III standing, and under Rule 12(b)(6), arguing that she failed to state a claim. For a facial challenge to standing, the court considered whether the complaint plausibly alleged facts showing standing and accepted its material factual allegations as true.

The court explained that Article III standing requires an injury in fact that is concrete and particularized, fairly traceable to the defendant’s conduct, and likely to be remedied by a favorable decision. A statutory violation by itself does not necessarily establish a concrete injury.

Zevon asserted two types of harm. First, she claimed informational harm because the statements did not provide the required information in the required form. The court rejected that theory because she acknowledged that the information appeared in her card agreement, did not allege that she failed to receive the agreement, and alleged only that the information was presented in the wrong format. She also did not allege any adverse downstream consequence because she never submitted or attempted to submit a billing-error inquiry.

Second, Zevon claimed that the missing disclosure created a material risk that she could lose the opportunity to have charges reduced or removed. The court held that this alleged risk did not establish standing for her damages claim. She did not allege that the risk materialized, that she actually lost the opportunity to dispute charges, or that the risk itself caused a separate concrete harm.

Disposition

The court held that Zevon had not established Article III standing and granted American Express’s motion to dismiss. The court also granted Zevon leave to replead her claims, requiring any amended complaint to be filed within fourteen days of the order. The opinion did not state that the dismissal was with or without prejudice. The clerk was directed to terminate the pending motion.