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Armes v. Shanta Enterprise

July 8, 2009

CHRISTOPHER ARMES, PLAINTIFF,
v.
SHANTA ENTERPRISE, INC. DEFENDANT.



The opinion of the court was delivered by: Frederick J. Kapala District Judge

MEMORANDUM OPINION AND ORDER

FREDERICK J. KAPALA, District Judge

On February 18, 2008, plaintiff, Christopher Armes, filed a first-amended complaint against defendant, Shanta Enterprises, Inc., alleging that defendant violated § 1681c(g) of the Fair and Accurate Credit Transactions Act ("FACTA"), an amendment to the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, when it issued plaintiff a receipt that contained his entire credit card number and the expiration date of his credit card. Pursuant to § 1681n of the FCRA, plaintiff seeks statutory damages, attorney's fees, litigation expenses and costs, and an injunction enjoining defendant from further violating § 1681c(g).

Plaintiff moves to certify the following class: All persons to whom Defendant provided an electronically printed receipt at the point of sale or transaction, in a transaction occurring after December 4, 2006, which receipt displayed more than the last five digits of the person's credit and/or debit card number.

I. BACKGROUND

Plaintiff alleges that on or about June 21, 2007, he rented a room at defendant's Super 8 Motel using his Visa card after which defendant issued him a receipt listing his entire Visa credit card account number and the expiration date for that card. Plaintiff admits that he was not the victim of identity theft as a result of defendant's practices and does not allege any harm as a result.

Section 1681c(g) of the FCRA provides: Except as otherwise provided in this subsection, no person that accepts credit cards or debit cards for the transaction of business shall print 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). Section 1681n(a) provides that, Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of . . . any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000.

15 U.S.C. § 1681n(a)(1)(A).

II. DISCUSSION

District courts have broad discretion to determine whether certification of a class is appropriate under Federal Rule of Civil Procedure 23. Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001). To complete such a Rule 23 analysis, this court is required to delve beyond the plaintiff's allegations and conclusory remarks and assess whether the evidence merits class certification. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-76 (7th Cir. 2001). Plaintiff bears the burden of proving that the class should be certified. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006).

To obtain class certification, a plaintiff must satisfy all four requirements of Federal Rule of Civil Procedure 23(a): (1) "the class is so numerous that joinder of all members is impracticable" (numerosity); (2) "there are questions of law or fact common to the class" (commonality); (3) "the claims or defenses of the representative parties are typical of the claims or defenses of the class" (typicality); and (4) "the representative parties will fairly and adequately protect the interests of the class" (adequacy of representation). Fed. R. Civ. P. 23(a); Oshana, 472 F.3d at 513. Even if a plaintiff meets all of the Rule 23(a) requirements, he or she also must satisfy one of the requirements set forth in Rule 23(b). Fed. R. Civ. P. 23(b). In this case, plaintiff seeks certification pursuant to Rule 23(b)(3), which requires the court to find "that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).

Several judges in the Northern District of Illinois have certified classes similar to the one plaintiff proposes here. See Beringer v. Standard Parking Corp., Nos. 07 C 5027, 07 C 5119, 2008 WL 4390626 (N.D. Ill. Sept. 24, 2008); Cicilline v. Jewel Food Stores, Inc., 542 F. Supp. 2d 831 (N.D. Ill. 2008); Harris v. Best Buy Co., Inc., 254 F.R.D. 82 (N.D. Ill. 2008); Redmond v. Uncle Julio's of Ill., Inc., 249 F.R.D. 290 (N.D. Ill. 2008); Matthews v. United Retail, Inc., 248 F.R.D. 210 (N.D. Ill. 2008); Meehan v. Buffalo Wild Wings, Inc., 249 F.R.D. 284 (N.D. Ill. 2008); Harris v. Circuit City Stores, Inc., No. 07 C 2512, 2008 WL 400862 (N.D. Ill. Feb. 7, 2008); Troy v. Red Lantern Inn, Inc., No. 07 C 2418, 2007 WL 4293014 (N.D. Ill. Dec. 4, 2007); Halperin v. Interpark, Inc., No. 07 C 2161, 2007 WL 4219419 (N.D. Ill. Nov. 29, 2007). However, defendant encourages this court to follow the reasoning of district courts in the Fourth, Ninth, and Eleventh Circuits, which have denied class certification to plaintiffs unharmed by a defendant's violation of § 1681c(g)(1). Specifically, defendant argues that (1) plaintiff is not an adequate representative of the class because he is a "professional plaintiff" involved in several FACTA cases; (2) individual issues predominate the litigation; and (3) a class action is not a superior method for adjudicating these claims.

A. Rule 23(a) Factors

1. Numerosity, Commonality, and Typicality

Although defendant does not dispute that plaintiff has satisfied the elements of numerosity, commonality and typicality, before deciding whether to allow a case to proceed as a class action, the court is required to make an independent assessment of the factual and legal inquiries necessary under Rule 23. Szabo, 249 F.3d at 676.

Although there is no "magic number" for numerosity purposes, joinder is considered impractical when a class numbers at least forty members. See Swanson v. Am. Consumer Indus., 415 F.2d 1326, 1333 n.9 (7th Cir.1969); Steinbrecher v. Oswego Police Officer Dickey, 138 F. Supp. 2d 1103, 1106 (N.D. Ill. 2001). Here, defendant admits that the number of receipts it printed since December 4, 2006, and prior to its compliance with ยง 1681c(g)(1), is 5,330, and that it issued more than 100 sales ...


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