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Duane Morris Takeaways: In Fausett v. Walgreen Co., 2025 IL 131444 (Nov. 20, 2025), the Illinois Supreme Court narrowly construed the private right of action set forth in the federal Fair Credit Reporting Act (FCRA), holding that because the FCRA does not explicitly authorize consumers to sue for violations, the law does not authorize individual lawsuits unless a consumer shows that a violation caused a concrete injury. Thus, at least for FCRA actions, a plaintiff must now allege a "concrete injury" in Illinois state courts similar to what a plaintiff must allege to establish Article III standing in federal courts. This is a significant development, as Illinois courts have not previously required "concrete-injury" allegations for statutory claims under the state's more liberal standing test.
Fausett is therefore a must-read opinion that represents an obstacle for future plaintiffs pursuing "no-injury" claims premised on the FCRA, in addition to other federal statutes containing similar private rights of action.
Case Background
Plaintiff alleged that Defendant violated the Fair and Accurate Credit Transactions Act (FACTA) – a provision of the FRCA – by printing a receipt containing more than the last five digits of her debit card number. Plaintiff sought statutory damages for the alleged FACTA violation, though she did not claim the violation led to actual harm by, for example, a third party using the receipt to steal her identity.
Plaintiff moved to certify a class of individuals for whom Defendant printed receipts containing more than the last five digits of their payment card numbers. In granting class certification, the trial court rejected Defendant's argument that Plaintiff had no viable claim due to lack of standing. The trial court reasoned that Illinois courts are not bound by the same jurisdictional restrictions applicable to federal courts and that the Illinois Supreme Court's decision in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, established that "a violation of one's rights afforded by a statute is itself sufficient for standing." Fausett, 2025 IL 3237846, ¶ 15. The Illinois Appellate Court affirmed the trial court's class certification order, and Defendant subsequently appealed to the Illinois Supreme Court.
The Illinois Supreme Court's Decision
The issue before the Illinois Supreme Court was whether standing existed in Illinois courts for a plaintiff alleging a FACTA violation that did not result in actual harm.
The Court began by distinguishing the standing doctrines applied in Illinois state courts vs. federal courts. The Court observed that Illinois courts are not bound by federal standing law and that Illinois standing principles apply to all claims pending in state court – even those premised on federal statutes.
The Court then identified the two different types of standing that exist in Illinois courts, including: (1) common-law standing, which – like Article III – requires an injury in fact to a legally recognized interest; and (2) statutory standing, which requires the fulfillment of statutory conditions to sue for legislatively created relief. See id. ¶ 39 (for statutory standing, the legislature creates a right of action and determines "who shall sue, and the conditions under which the suit may be brought") (citation omitted). The Court further noted that a statutory violation, without actual harm, can establish statutory standing only where the statute specifically authorizes a private lawsuit for violations.
Turning to Plaintiff's FACTA lawsuit, the Court determined that Plaintiff's claim could not invoke statutory standing because the FCRA's liability provisions "fail to include standing language. In other words, Congress did not expressly define the parties who have the right to sue for the statutory damages established in FCRA." Id. ¶ 40; see also id. ¶ 44 ("the plain and unambiguous language" of the FCRA "does not state the consumer or an aggrieved person may file the cause of action"). Thus, because the FCRA is "silent as to who may bring the cause of action for damages," Plaintiff's FACTA claim "does not implicate statutory standing principles, and thus common-law standing applies to plaintiff's suit." Id.
As for common law standing, the Court concluded that Plaintiff's claim did not satisfy Illinois's common law standing test, under which an alleged injury, "whether actual or threatened, must be: (1) distinct and palpable; (2) fairly traceable to the defendant's actions; and (3) substantially likely to be prevented or redressed by the grant of the requested relief." Id. ¶ 39 (quoting Petta v. Christie Business Holdings Co., P.C., 2025 IL 130337, ¶ 18). The injury alleged must also be concrete – meaning that a plaintiff alleging only a purely speculative future injury lacks a sufficient interest to have standing.
The Court held that Plaintiff failed to allege or prove a concrete injury because she conceded that she was unaware of any harm to her credit or identity caused by the alleged FACTA violation, and she could not identify anyone who had even seen her receipts "beyond the cashier, herself, and her attorneys." See id. ¶ 48. Thus, Plaintiff could only show an increased risk of identity theft – something the Court has found to be insufficient to confer standing for a complaint seeking money damages. Because Plaintiff lacked a viable claim due to lack of standing, the Court held that the trial court abused its discretion in granting Plaintiff's motion for class certification.
Implications Of The Fausett Decision
Fausett will impact FCRA class actions in a significant manner by precluding plaintiffs from bringing certain "no-injury" class actions in Illinois state courts. Federal courts have regularly dismissed such claims for lack of Article III standing based on the U.S. Supreme Court's decision in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016).
Fausett now forecloses plaintiffs from refiling the same claims in Illinois state courts, leaving plaintiffs without a venue to prosecute no-injury FCRA claims in Illinois. Importantly, the Fausett decision will likely reach beyond the FCRA context, as other federal consumer-protection statutes contain liability provisions with private-right-of-action language similar to the language found in the FCRA.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
