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Harris v. Best Buy Co.

March 20, 2008

WILLIAM HARRIS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
BEST BUY CO., INC. AND BESTBUY.COM, LLC, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Plaintiff William Harris, individually and on behalf of all others similarly situated, brings the present one-count class action Amended Complaint alleging that Best Buy Co. Inc. and Bestbuy.com, LLC (collectively "Best Buy") violated the Fair and Accurate Transactions Act of 2003 ("FACTA") amendment to the Fair Credit Reporting Act ("FCRA") 15 U.S.C. § 1681 et seq. Before the Court is Harris' Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23. For the following reasons, the Court, in its discretion, grants Harris' motion.

BACKGROUND

In his Amended Complaint, Harris alleges that Best Buy willfully violated Section 1681c(g) of FACTA, and thus failed to protect Harris and others against identity theft and credit card and debit card fraud by printing more than the last five digits of the card number and/or the expiration date on receipts provided to debit card and credit card cardholders transacting business with Best Buy. (R. 54-1, Amend. Compl. ¶ 4.) Harris brings his claim under 15 U.S.C. § 1681c(g), which provides:

No person that accepts credit cards or debit cards for the transaction of business shall print more than the last five digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of sale or transaction.

15 U.S.C. § 1681c(g)(1). Harris further alleges that Best Buy was aware of FACTA's truncation requirement that started on December 4, 2006, yet when he made a purchase from Best Buy's website on May 15, 2007, a computer generated receipt displayed his credit card's expiration date. (Id. ¶¶ 12, 13.)

Harris brings this action on behalf of a class. (Id. ¶ 14.) In the Amended Complaint, Harris defines the proposed class as follows:

The class is defined as all persons in Illinois to whom Best Buy provided an electronically printed receipt at the point of sale or transaction, in a transaction occurring after December 4, 2006, which receipt displays either (a) more than the last five digits of the person['s] credit card or debit card number, and/or (b) the expiration date of the person's credit or debit card. (Id. ¶ 15.)

LEGAL STANDARD

Federal Rule of Civil Procedure 23(a) states that "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006) (class must satisfy requirements of numerosity, commonality, typicality, and adequacy of representation). Failure to meet any of these Rule 23(a) requirements precludes class certification. Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993).

In addition to satisfying the requirements under Rule 23(a), a party seeking class certification must also establish that the proposed class satisfies one of the requirements set forth in Rule 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Oshana, 472 F.3d at 513. In this case, Harris requests certification of the proposed class pursuant to Rule 23(b)(3), which applies when "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3); see also Amchem Prods., 521 U.S. at 615. As the Seventh Circuit instructs, "Rule 23(b)(3) was designed for situations ... in which the potential recovery is too slight to support individual suits, but injury is substantial in the aggregate." Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953 (7th Cir. 2006). Under Rule 23(b)(3), members of a certified class may opt out and pursue their claims individually. Id.; In re Allstate Ins. Co., 400 F.3d 505, 508 (7th Cir. 2005).

The party seeking class certification bears the burden of establishing that certification is proper. See Oshana, 472 F.3d at 513; Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). In determining whether a party has carried that burden, a court need not accept all of the complaint's allegations as true. See Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001). Rather, in deciding whether to certify a class, the court "should make whatever factual and legal inquiries are necessary under Rule 23." Id. at 676. Finally, district courts have broad discretion in determining motions for class certification. See Reiter v. Sonotone Corp., 442 U.S. 330, 345, 99 S.Ct. 2326, 2334, 60 L.Ed.2d 931 (1979) (Rule 23 vests district courts with broad power and discretion); Payton v. County of Carroll, 473 F.3d 845, 847 (7th Cir. 2007) (appellate review of district court's class certification is for abuse of discretion).

ANALYSIS

I. Federal Rule of Civil Procedure 23(a)

A. Numerosity

To satisfy the numerosity requirement under Rule 23(a)(1), Harris must show that the number of members in the proposed class is so large that joinder would be impracticable. See Pruitt v. City of Chicago, Ill., 472 F.3d 925, 926 (7th Cir. 2006). In his Amended Complaint, Harris alleges that there are over 100 persons in Illinois to whom Best Buy provided an electronically printed receipt at the point of sale or transaction occurring after December 4, 2006. (Am. Compl. ¶ 17.) Harris also sets forth evidence that Best Buy estimated that between December 4, 2006 and May 22, 2007, approximately 195,450 individuals in Illinois made purchases on Best Buy's website. (R. 41-2, Ex. 6, at 9.) Although there is no bright-line test for numerosity, a class of at least forty members is generally sufficient to satisfy the numerosity requirement. See Pruitt, 472 F.3d at 926; Cavin v. Home Loan Ctr., Inc., 236 F.R.D. 387, 392 (N.D. Ill. 2006).

Here, Best Buy argues that Harris cannot meet the numerosity requirement because the class definition depends on an unascertainable fact -- whether each class member printed the confirmation page of his or her online transaction from Best Buy's website. Specifically, when customers purchase an item on Best Buy's website, before the order is submitted, a screen entitled "Review & Submit Your Order" appears. (R. 53-1, Ex. 3, ¶ 2.) If the customer concludes that the "Review & Submit Your Order" screen is correct, she can then click on the "Submit Your Order" button. (Id. ¶ 2.) Thereafter, a screen appears stating "Thank You for Your Order," which is the confirmation page that supplies a summary of the order including credit card information. (Id. ¶ 4.) An online customer may print this confirmation page or print her receipt under the "Order Status" section at Bestbuy.com. (Id. ¶ 6.)

Based on the premise that an online customer must print her receipt to have a cognizable claim under Section 1681c(g), Best Buy argues that the number of class members is unascertainable. First, Best Buy's argument presumes that the class definition only includes online purchasers and not customers who visited Best Buy's "brick and mortar" stores. See Harris v. Circuit City Stores, Inc., No. 07 C 2512, 2008 WL 400862, at *4 (N.D. Ill. Feb. 8, 2008) ("Consumers who received receipts from brick and mortar stores are a distinct group from those who received receipts online."). Harris does not dispute ...


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