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Shurland v. Bacci Café & Pizzeria On Ogden

November 2, 2010

CHRISTOPHER D. SHURLAND, INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY-SITUATED PERSONS, PLAINTIFF,
v.
BACCI CAFÉ & PIZZERIA ON OGDEN, INC. AND DOES 1--10, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

On August 11, 2007, Christopher D. Shurland ("Plaintiff") dined at Bacci Café and Pizzeria on Ogden, Inc., ("Bacci" or "Defendant") and received a receipt that displayed his entire credit card number and its expiration date. Plaintiff alleges that by displaying this information on the receipt, Bacci violated the requirements of the Fair and Accurate Credit Transactions Act ("FACTA"), an amendment to the Fair Credit Reporting Act ("FCRA"). This court certified a class of all those who had received a receipt from Bacci from December 5, 2006 (the effective date of FACTA) through November 2007. Based on records obtained from Bacci's credit card processor, Plaintiff determined that 6,359 transactions occurred in violation of FACTA during that period.

Plaintiff has since encountered difficulty in identifying the individual members of the class because Defendant's records of those 6,359 transactions are incomplete. Arguing that the absence of identifying information precludes class certification, Defendant has moved to decertify the class. For the reasons explained here, that motion is denied. Plaintiff has moved to approve class notice. As explained below, that motion is denied without prejudice to an appropriate proposal for the best practicable notice to class members.

FACTUAL HISTORY

On August 11, 2007, Plaintiff dined at Bacci and received a receipt that displayed all of the digits of his credit card number and its expiration date. Plaintiff filed a class action lawsuit in the Circuit Court of Cook County on March 21, 2008, alleging that Bacci's issuance of the receipt violated the requirements of FACTA, which provides that "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 sale or transaction." 15 U.S.C. § 1681c(g). Plaintiff seeks statutory damages authorized by 15 U.S.C. § 1681n(a) of between $100 and $1,000 per violation. (Class Action Compl. ¶ 78.)

Plaintiff obtained records from Bacci's credit card processing provider, National Translink Corp., showing that there were 6,359 transactions that appear to have violated FACTA. (Mem. of Law in Supp. of Pl.'s Mot. for Class Cert. at 6.) Though Bacci contends it did not act willfully (a requirement for liability under FACTA), Bacci does not dispute that receipts it issued violated the five-digit truncation requirement of FACTA. Shurland, 259 F.R.D. at 157. Finding the requirements for class certification satisfied, this court on August 19, 2009, certified a class of "[a]ll persons to whom Defendant provided an electronically printed receipt at the point of a sale or transaction from December 5, 2006 through November 2007 displaying more than the last five digits of the purchaser's credit card or debit card number." Id. The court noted that at that time, "class discovery has not yet begun in this case, and Plaintiff will likely gain additional information in the form of records from third-party Defendant National Translink." Shurland, 259 F.R.D. at 160. National Translink did produce records to Plaintiff containing a redacted version of each credit card number processed by Defendant between December 4, 2006 and October 30, 2007. (Pl.'s Resp. Brief in Opp. to Def.'s Mot. for Decert. at 12.). Plaintiff initially asserted that these documents would enable him to identify class members by name and address, but in fact, he now reports, "the partial credit card numbers contained on the records could not be matched to names and addresses." (Id.) It appears that neither Defendant, Translink, nor the credit card companies involved in the transaction have possession of records that would allow identification of the individual members of the class. (Id.)

DISCUSSION

I. Motion to Decertify

As this court noted when initially certifying the class in this case, "class certification is 'inherently tentative.'" Shurland, 259 F.R.D. at 158 (quoting Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415, 419 (N.D. Ill. 2003)). Rule 23 explicitly authorizes the court to alter or amend a class certification order. "Because the court must decide whether to certify a class early in the proceedings, it remains under a continuing obligation to review whether proceeding as a class action is appropriate, and may modify the class or vacate class certification pursuant to evidentiary developments arising during the course of litigation." Ellis, 217 F.R.D. at 419 (footnote omitted). Plaintiff "bears the burden of producing a record demonstrating the continued propriety of maintaining the class action." Id. This court enjoys "broad discretion" in deciding whether Plaintiff has met its burden. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998).

In this motion, as in deciding the original motion for class certification, the court considers whether the tests of numerosity, commonality, typicality, and adequacy of representation are met. Fed. R. Civ. P. 23(a)(1)-(4). If they are, the court considers whether common questions predominate and whether a class action is a superior method of adjudicating the claim. Of particular concern here is this latter question, and specifically (a) the class members' interests in individually controlling their cases and (b) difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3)(A), (D).

Although Defendant casts the argument in several different ways, the focus of its motion to decertify is on Plaintiff's inability to identify additional individual members of the class. (Def.'s Mot. to Decert. at 2 ("To date, after more than two years of litigation, discovery and numerous depositions, no other class member has been located by identifiable information.")). First, Defendant argues that the class action device is no longer superior because the lack of identifiable class members renders the class unmanageable under Rule 23(b)(3)(D). Second, Defendant argues that class certification without identification of individual class members contravenes "the class members' interests in individually controlling the prosecution or defense of separate actions" in violation of Rule 23(b)(3)(A), and more generally that certification in this situation violates due process. Third, and closely related to the preceding argument, Defendant argues that publication notice alone is insufficient and violates due process, and asserts that no Rule 23(b)(3) class has been allowed to go forward relying solely on publication notice. Defendant contends, further, that Plaintiff has not shown that the class is identifiable and ascertainable and that Plaintiff's inability to identify individual members of the class effectively defeats the requirement of numerosity. FED. R. CIV. P. 23(a)(1). Finally, Defendant argues that "questions of law or fact common to class members [do not] predominate over any questions affecting only individual members." FED. R. CIV. P. 23(b)(3). The court will address each of these arguments in turn.

A. Manageability

Defendant focuses, first, on the "manageability" prong of Rule 23(b)(3)(A), (Def.'s Mot. to Decert. at 6.), and urges that the difficulties in notifying class members require decertification. Indeed, difficulties in managing a class action are a factor the court must consider pursuant to FED. R. CIV. P. 23(b)(3)(D). As this court noted in initially certifying the class, however, difficulties in identifying and notifying members of a large class do not, by themselves, require that class certification be denied. Shurland, 259 F.R.D. at 160. That calculus has not changed simply because Plaintiff has not yet identified individual members of the class. As discussed below, publication is an acceptable method of notification in this case, and managing a class of approximately 6,300 subject to notice by publication is well within the competency of this court.

In general, the challenge of notifying class members need not defeat a finding of manageability. Instead, manageability issues typically arise when a court will need to deal with myriad issues on an individualized basis. For example, manageability issues doomed class certification where plaintiff alleged that numerous defendants including Google were engaged in a scheme to infringe trademarks by registering confusingly similar domain names. Vulcan Golf, LLC v. Google Inc., 254 F.R.D. 521, 537 (N.D. Ill. 2008) ("[T]he possibility of hundreds if not thousands of individual hearings related to ownership, distinctiveness and the applicability of affirmative defenses, including managing probable discovery to be conducted prior to those hearings, precludes a finding that a class action is a superior method of adjudicating the trademark-related claims."). Defendants point to Simer v. Ross, 661 F.2d 655 (7th Cir. 1981), where the court reversed the certification of a class upon finding that it would be too difficult to identify individual class members. That finding, however, focused on the individualized factual findings that the court would need to make in order to determine whether an individual properly belonged to the class of people wrongly denied or discouraged from applying for financial assistance with utility bills. "The first problem is to identify those individuals who qualify for ...


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