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Beringer v. Standard Parking Corp.

September 24, 2008

BENJAMIN P. BERINGER AND TONY IVANOV, PLAINTIFFS,
v.
STANDARD PARKING CORPORATION, DEFENDANT.
STANDARD PARKING CORPORATION, THIRD-PARTY PLAINTIFF,
v.
ZEAG USA, INC., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge

MEMORANDUM ORDER

Plaintiffs Toni Ivanov and Benjamin P. Beringer brought this action under the Fair and Accurate Transactions Act ("FACTA") amendment to the Fair Credit Reporting Act ("FCRA"). Plaintiffs allege that Defendant, the operator of a parking facility at O'Hare International Airport, violated the provisions of FACTA by printing the first four digits of their credit card numbers, the last four digits, and the expiration dates on the receipts when they parked their cars at the facility. Beringer obtained a receipt from Defendant on December 29, 2006. Plaintiffs assert that Ivanov received his receipt on March 14, 2007, but the receipt itself shows that the actual date was March 14, 2006. FACTA, which went into effect on December 4, 2006, prohibits printing "more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction." 15 U.S.C. § 1681c(g)(1). Defendant effectively acknowledges the violations, and states that its machines were brought into compliance with the statute by April 26, 2007. During this time period, from December 4 to April 26, Defendant claims that it processed 751,078 credit card transactions at its O'Hare facility in which a computer-generated receipt was issued to the patron. Plaintiffs do not allege that they suffered any actual damages as a result of Defendant's noncompliance with the statute, but assert a right to statutory damages of "not less than $100 and not more than $1,000." 15. U.S.C. § 1681n(a)(1)(A).

Plaintiff Ivanov now moves to certify this action as a class action under Federal Rule of Civil Procedure 23. Plaintiff defines the class as "all persons to whom the Standard Parking Corporation provided an electronically printed receipt at the point of sale or transaction, in a transaction occurring in Illinois after December 4, 2006, which receipt displays either (a) more than the last five digits of the person's credit or debit card number, and/or (b) the expiration date of the person's credit or debit card." (Pl.'s Mot. for Class Certification (hereinafter "Pl.'s Mot. for Cert.") at 1.)

Discussion

To maintain an action as a class action, the class must first meet the four requirements of Rule 23(a): numerosity, common questions of law or fact, typicality, and adequate representation. FED. R. CIV. P. 23(a). The class then must qualify as one of the classes listed in Rule 23(b). Here, Plaintiff seeks to certify the class under Rule 23(b)(3), maintaining both that common questions predominate and that the class action "is superior to other available methods for fairly and efficiently adjudicating the controversy." FED. R. CIV. P. 23(b)(3).

I. Rule 23(a)

A. Numerosity

Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable." The Seventh Circuit has found that a group as small as forty "widely scattered" individuals may satisfy the numerosity requirement. Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326,1333 n.9 (7th Cir. 1969). The parties do not agree on the size of the potential class, nor is Plaintiff "required to specify the exact number of persons in the class." Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). The estimates here range from Plaintiff's estimate of at least 15,300 class members (Mem. in Supp. at 6) to Defendant's assertion that there could be as many as 751,078 members. (Mem. in Opp'n at 4.) Either way, joinder of all members of such a large class would clearly be "impracticable," and the numerosity requirement is therefore satisfied.

B. Commonality

Common questions of law or fact must also be present to maintain an action as a class action. FED. R. CIV. P. 23(a)(2). All that is required to satisfy Rule 23(a)(2) is a "common nucleus of operative fact," which is typically present when the defendant has "engaged in standardized conduct towards members of the proposed class." Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (citations omitted). Here, Plaintiff identifies common questions as to whether Defendant routinely provided customers with receipts that contained the first four digits and last four digits of their credit or debit cards and the expiration date, as well as whether that conduct was willful and constitutes a violation of FACTA. The court agrees that Defendant's alleged conduct of printing receipts with inappropriate information creates common questions of both fact (whether Defendant actually printed these receipts) and law (if it did issue such receipts, whether Defendant did so willfully). Accordingly, the requirements of Rule 23(a)(2) are met.

C. Typicality

A plaintiff satisfies the requirements of Rule 23(a)(3) if his claim "arises from the same event or practice or course of conduct that gives rise to the claims of other class members and [is] based on the same legal theory." De LaFuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). This standard is easily satisfied here. The course of conduct at issue--Defendant's practice of printing too much information on credit card receipts--was the same general practice that affected all members of the class. Furthermore, Ivanov's claim is also premised on the same legal theory as is the claim advanced by the class--namely, that Defendant's actions constitute a willful violation of FACTA. Plaintiff therefore meets this requirement.

D. Adequacy of Representation

Rule 23(a)(4)'s requirement that the named plaintiff "fairly and adequately protect the interests of the class" requires that the plaintiff "possess the same interest and suffer the same injury as the class members." Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978, 985 (7th Cir. 2002) (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). Defendant claims that Plaintiff does not meet this standard because his interests are in conflict with potential members of the class who would claim actual damages as opposed to statutory damages. In addition, however, Defendant has produced expert testimony suggesting that Defendant's conduct could not have caused any actual damages. (Lisker Decl. ΒΆ 5, Ex. 10 to Mem. in Opp'n.) If Defendant's expert is correct, it is unlikely that there will be many such claims of actual damages. In any event, concerns about different interests that arise only at the damages stage generally do not prevent certification of a class for the purpose of proving liability. See Carnegie v. Household Int'l, Inc., 376 F.3d 656, 661 (7th Cir. ...


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