20-3090

Choi’s Beer Shop, LLC v. PNC Merchant Services Company, L.P.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A 

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held 

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 2nd day of April, two thousand twenty-one.

PRESENT: DENNIS JACOBS,

ROBERT A. KATZMANN,

WILLIAM J. NARDINI,

Circuit Judges.

_____________________________________

CHOI’S BEER SHOP, LLC,

Plaintiff-Appellant,

v. No. 20-3090

PNC MERCHANT SERVICES COMPANY, L.P.,

Defendant-Appellee.

_____________________________________

For Plaintiff-Appellant: E. ADAM WEBB, Webb, Klase & Lemond, 

LLC, Atlanta, GA
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For Defendant-Appellee: PERRY A. NAPOLITANO (M. Patrick 

Yingling and Justin J. Kontul, on the 

brief), Reed Smith LLP, Pittsburgh, PA,

and Chicago, IL

On appeal from the United States District Court for the Eastern District of New 

York (Frederic Block, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is VACATED AND 

REMANDED FOR FURTHER PROCEEDINGS. 

Plaintiff-Appellant Choi’s Beer Shop, LLC, (“Choi’s Beer”) appeals from a 

judgment of the district court, entered September 10, 2020, dismissing its putative class 

action against Defendant-Appellee PNC Merchant Services Company, L.P., (“PNC”) for 

lack of subject matter jurisdiction. The district court reasoned that Choi’s Beer did not 

satisfy Article III’s personal stake requirement because (1) its claim for damages was moot 

in light of PNC’s crediting of Choi’s Beer’s account for the disputed annual fee imposed 

in 2019; and (2) its claims for declaratory and injunctive relief based on anticipated future 

charges were too speculative to confer standing. The question before us is whether Choi’s 

Beer alleges a personal stake in any one of its claims such that the controversy remains

live. We assume the reader’s familiarity with the record.

I. The claims for declaratory and injunctive relief are not speculative.

We review de novo the district court’s determination that Choi’s Beer lacks
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standing to pursue its claims for injunctive and declaratory relief, see Knife Rights, Inc. v. 

Vance, 802 F.3d 377, 383 (2d Cir. 2015), and we hold that the district court erred when 

dismissing Choi’s Beer’s claims as too speculative to confer standing. 

“To establish Article III standing, a plaintiff must show (1) an injury in fact, (2) a

sufficient causal connection between the injury and the conduct complained of, and (3) a 

likelihood that the injury will be redressed by a favorable decision.” Susan B. Anthony List 

v. Driehaus, 573 U.S. 149, 157-58 (2014) (internal quotation marks and alteration marks 

omitted). A plaintiff must show more than abstract injury to satisfy the injury prong of 

the standing inquiry; rather, “[t]he plaintiff must show that he has sustained or is 

immediately in danger of sustaining some direct injury as the result of the challenged . . . 

conduct and the injury or threat of injury must be both real and immediate, not 

conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) 

(internal quotation marks omitted). The Supreme Court has described “imminent” harm 

to be one that is “certainly impending” or where there is a “substantial risk” that the harm 

will occur. Knife Rights, 802 F.3d at 383-84. Generally, “[a] plaintiff seeking injunctive or 

declaratory relief cannot rely on past injury to satisfy the injury requirement but must 

show a likelihood that he or she will be injured in the future.” Deshawn E. by Charlotte E. 

v. Safir, 156 F.3d 340, 344 (2d Cir. 1998). “Past exposure to illegal conduct does not in itself 

show a present case or controversy regarding injunctive relief . . . if unaccompanied by 
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any continuing, present adverse effects.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992) 

(quoting Lyons, 461 U.S. at 102).

Here, Choi’s Beer does not merely allege that it has been harmed in the past or 

speculate that future harm might occur; it alleges quite concretely that “[PNC] has 

programmed its computer systems to always assess annual fees on less than 30 days’ 

notice.” App’x at 5. The fees, it alleges, are “imposed as a planned yearly ‘release.’” Id. 

Although the parties’ contract describes the annual fee as discretionary, the complaint 

alleges that the fee is in fact assessed “every year.” Id. at 4. And the fact that PNC credited 

the account of Choi’s Beer for the disputed 2019 fee does not undermine the claim that 

Choi’s Beer is at “substantial risk” of being charged the “programmed” fee again. Taking 

these alleged facts as true and drawing all reasonable inferences in favor of Choi’s Beer,

as we must on a motion to dismiss, see Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 

(2d Cir. 2006), we hold that Choi’s Beer, as a current PNC customer subject to a 

programmed fee, does more than simply speculate when it alleges that it is likely (indeed, 

certain) to be charged the fee again.

II. PNC’s alternate grounds to support dismissal are unavailing. 

We find PNC’s two alternate grounds to support dismissal unpersuasive. Both of 

them relate exclusively to PNC’s charge of the fee in 2019, and therefore they would be 

inadequate to defeat Choi’s Beer’s claim related to the future imposition of annual fees.
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But even in relation to the 2019 fee alone, they would fall short.

PNC first argues that Choi’s Beer fails to meet the injury prong of the standing 

inquiry because it did not allow PNC time to investigate and adjust the annual fee under 

the terms of the parties’ contract. However, whether Choi’s Beer suffered an injury under 

the terms of the contract presents a question of contractual standing, not Article III 

standing. See SM Kids, LLC v. Google LLC, 963 F.3d 206, 211 (2d Cir. 2020) (“Contractual 

standing is distinct from Article III standing and does not implicate subject-matter 

jurisdiction. Article III standing speaks to the power of a court to adjudicate a 

controversy; contractual standing speaks to a party’s right to relief for breach of 

contract.”). We will not “essentially collapse the standing inquiry into the merits,” id. at 

212 (quoting Baur v. Veneman, 352 F.3d 625, 642 (2d Cir. 2003)), and thus we decline to 

affirm on this ground. 

PNC also argues that Choi’s Beer fails to allege an adequate breach-of-contract 

claim because it “fails to allege any damages,” insofar as PNC refunded Choi’s Beer the 

disputed fee. Appellee’s Br. at 41. But the complaint did allege damages. PNC’s postcomplaint actions (here, the refund) are relevant to determining whether Choi’s Beer’s 

claims later became moot, but they have no bearing on whether the complaint was 

adequate to begin with.

* * *
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For these reasons, we VACATE the district court’s judgment and REMAND for 

proceedings consistent with this order. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court