Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Blanche M. Manning than Assigned Judge
Shell's motion for certification pursuant to 28 U.S.C. § 1292(b) is granted, and the court certifies its September 26, 2011, order denying Shell's motion for summary judgment [Dkt. Nos. 152, 153 & 154] for interlocutory review. To the extent that Shell seeks reconsideration of that order, its motion is denied. Ms. van Straaten's motion for leave to file supplemental materials in opposition to Shell's motion  is granted. The court notes that Shell advised its clerk that its response to that motion is contained in its reply in support of its motion to certify. Ms. van Straaten's motion to certify a class  is denied without prejudice as in the interests of conserving the parties' resources, it appears more efficient to consider this motion as necessary after the appellate court considers Shell's request to pursue an interlocutory appeal.
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In this case, plaintiff Natalie Van Straaten seeks to represent a class of consumers who used Shell's proprietary credit and debit cards at Shell gas stations. Ms. Van Straaten contends that Shell Oil Products Company, Equilon, and Shell Oil (collectively Shell) improperly truncated the digits on Shell's payment cards by masking the wrong digits on the receipt. The court recently denied Shell's motion for summary judgment. Shell's motion to certify under § 1292(b) or, alternatively, to reconsider  followed. Plaintiff Natalie van Straaten has also filed a motion for leave to file supplemental materials in opposition to Shell's motion  and a motion to certify a class .
Section 1292(b) provides, in pertinent part, that "[w]hen a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, [s]he shall so state in writing in such order." Shell asks the court to certify the following two questions for interlocutory appeal:
(1) Whether Shell's interpretation of the phrase "card number" in FACTA and its resulting truncation protocol, even if wrong, could be reckless as a matter of law?
(2) Whether the undefined term "card number," as used in FACTA, refers exclusively to the card's "Primary Account Number" ("PAN") even though there is no reference to "PAN" in the statute or legislative history?
Dkt. 161, Page ID #2276; Dkt. 162, Page ID #2279. Alternatively, it asks the court to reconsider its ruling that Shell is not entitled to summary judgment on the question of willfulness.
The court begins by noting that it disagrees with Shells' characterization of the reasoning and holding in the summary judgment order sought to be appealed. For example, the court did not hold that "card number" equals 100% of the PAN. Instead, it analyzed the truncation requirements in FACTA and reached a conclusion about which digits must be truncated. The court also finds that Shell's questions are excessively adversarial and fail to fairly express the legal issues at the heart of this case. This is immaterial, however, as § 1292(b) provides for certification of orders for appeal, not questions. Edwardsville Nat'l Bank & Trust Co. v. Marion Labs., Inc., 808 F.2d 648, 650 (7th Cir. 1987) ("The question is the reason for the interlocutory appeal, but the thing under review is the order") (emphasis in original); see also 28 U.S.C. § 1292(b) (referencing "an immediate appeal from the order"); Rodgers v. Allen, No. 05 C 3540, 2009 WL 2872912, at *2 (N.D. Ill. Sept. 2, 2009) (collecting cases). The court thus turns to the § 1292(b) factors.
A petition for interlocutory appeal must be filed with the district court within a reasonable time after entry of the order sought to be appealed. Ahrenholz v. Board of Trustees of Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000). Moreover, the movant must satisfy "four statutory criteria . . . . there must be a question of law, it must be controlling, it must be contestable, and its resolution must promise to speed up the litigation." Id. at 675 (emphasis in original). Finally, interlocutory appeals under § 1292(b) are disfavored so certification is appropriate only in exceptional cases. See, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 473--74 (1978).
Shell filed its motion in a reasonable amount of time, as it filed its motion three weeks after the court issued its ...