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Aliano v. Amerigas Partners

October 22, 2008


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Before the Court is the Plaintiff's Combined Motion for Leave to File an Amended Complaint and to Extend the Filing Deadline for Plaintiff's Motion for Class Certification. Also before the Court is the Defendants' Cross-Motion for Sanctions. For the following reasons, Plaintiff's Motion is granted in part and denied in part, and Defendants' Motion for Sanctions is denied.


In his Complaint, Plaintiff Mario Aliano, Sr. (hereinafter, "Plaintiff") alleges that the Defendants Amerigas Partners, L.P., Amerigas Propane, L.P., and Amerigas Propane, Inc. (hereinafter, the "Defendants"), violated the Fair and Accurate Credit Transactions Act ("FACTA") by giving to Plaintiff a cash register receipt that displayed Plaintiff's credit card expiration date. See Compl. ¶¶ 1-4.

FACTA, a subset of the statutes contained within the Fair Credit Reporting Act ("FCRA"), prohibits merchants from printing more than the last five digits of a credit or debit card number or the card's expiration date on receipts provided to the cardholder at the transaction. 15 U.S.C. § 1681(c)(g)(1); see also 15 U.S.C. § 1681, et seq. As originally enacted, FACTA provided damages to individuals suffering actual damages and statutory damages against merchants who willfully violated this provision. 15 U.S.C. § 1681(n).

On June 3, 2008, Congress passed the Credit and Debit Card Clarification Act of 2007 (the "FACTA Amendment"). See 15 U.S.C. 1681o(a). Among other changes, Congress eliminated statutory damages for willful violations of FACTA. See id. Section 1681o(a) now provides that any person who negligently fails to comply with FACTA requirements is liable for "actual damages sustained" as well as costs and attorney's fees. Id.

In his original Class Action Complaint, dated July 20, 2007, Plaintiff sought statutory damages, attorneys' fees, and costs under FACTA. Compl. ¶ 4. Plaintiff alleged that, on May 10, 2007, he received a computer-generated receipt from Amerigas displaying his credit card expiration date in violation of FACTA. Id. at ¶¶ 14-15. Asserting that Defendants willfully violated FACTA, Plaintiff requested statutory damages. Id. at ¶¶ 3-4. The Complaint alleged no actual damages. Plaintiff defined a proposed class as "all persons to whom Defendants provided an electronically printed receipt at the point of sale or transaction, in a transaction occurring nationwide after December 4, 2006, which receipt displays either (a) more than the last five digits of the person's credit card number, and/or (b) the expiration date of the person's credit or debit card." Id. at ¶ 17.

Plaintiff now moves to amend his complaint to remove the allegations of willfulness and to state a claim for negligent noncompliance. See Am. Compl. ¶¶ 1-4, Ex. 1 to Pl's Mot. The proposed amended complaint alleges that Plaintiff suffered actual damages as a result of having to pay out-of-pocket expenses for credit monitoring services. Id. at ¶ 16. Furthermore, Plaintiff seeks to redefine the potential class to include only consumers who obtained a receipt in Illinois. Id. at ¶ 18. Defendants argue that the proposed Amended Complaint fails to state a claim under FACTA because it does not allege actual damages as required by Section 1681o(a). Defendants contend that the cost of purchasing credit monitoring services alone are not cognizable actual damages under FACTA.

Plaintiff also requests an extension of the deadline for his motion for class certification, which was due June 18, 2008. Plaintiff states that he is awaiting subpoenaed documents regarding Defendants' alleged knowledge and disregard of FACTA requirements. In addition, Plaintiff seeks leave to permit discovery to determine whether potential class members sustained actual damages as a result of Defendants' alleged violations of FACTA.

In their Cross-Motion, Defendants allege that Plaintiff and his counsel have acted in bad faith by prolonging the litigation of a baseless claim. Defendants request that this Court award sanctions as it deems appropriate.


A. Standard of Review

Leave to amend a complaint must be freely given absent undue delay and undue prejudice to the opponent. FED. R. CIV. P. 15(a); Cannon v. Washington, 418 F.3d 714, 720 (7th Cir., 2005); Luckett v. Conlon, 561 F.Supp.2d 970, 973 (N.D. Ill., 2008). The complaint "merely serves to put defendants on notice" and should be "freely amended or constructively amend as the case develops, as long as amendments do not unfairly surprise or prejudice the defendant." Luckett, 561 F.Supp.2d at 974 (internal citations omitted). This Court may deny leave to amend on the grounds of undue delay, bad faith, dilatory motive, prejudice, or futility. Sound of Music Co. v. ...

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