Defendant’s Motion to Decertify Class Denied in FACTA Truncation Case

Shurland v. Bacci Café, et al., 2010 U.S. Dist. LEXIS 116718 (N.D. Ill. Nov. 2, 2010)

Facts: Plaintiff alleged that he received a cash register receipt at Defendant’s restaurant displaying his entire credit card number and expiration date in violation of § 1681c(g) of the FCRA. Plaintiff then filed suit seeking to represent a class of more than 6,000 consumers to whom Defendant allegedly issued receipts that violated the FCRA. The Court certified the class. Plaintiff then encountered difficulty indentifying the individual members of the class because Defendant’s records of the transactions were incomplete. Defendant then moved to decertify the class arguing that the absence of indentifying information precludes class certification and Plaintiff moved to approve class notice. The Court denied both motions but approved the content of Plaintiff’s notice and directed Plaintiff to propose a new plan for notifying the class pursuant to the Court’s recommendations.

Class Certification Standard. Class certification is inherently tentative. 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.

Class Certification Standard. In this motion, as in deciding the original motion for class certification, a court considers whether the tests of Rule 23(a) numerosity, commonality, typicality, and adequacy of representation are met. If they are, a court considers whether the requirements of Rule 23(b)3 are met. Specifically, the court considers whether questions of law or fact common to members of the class predominate over questions affecting only individual members and whether a class action is superior to other methods of adjudicating the class claims.

Class Certification. Defendant focused on the manageability prong of Rule 23(b)(3)(A) urging that the difficulties in notifying class members required decertification. However, the Court determined that publication was an acceptable method of notification in this case, and managing a class of approximately 6,300 subject to notice by publication was well within its competency.

Class Certification. Defendant also argued that because individual class members cannot be identified, due Process for defendant and class members will be thwarted. Rule 23(c)(2) guarantees that class members certified under Rule 23(b)(3) in actions for money damages are entitled to personal notice, as a matter of due process, and an opportunity to opt out of the class action. In examining the due process assessment, the Court determined that notice by publication may be sufficient when individual class members cannot be identified.

Class Certification. Defendants contended that the absence of records identifying the class members by name required decertification of the class because the class itself cannot be ascertained and identified. The Court overruled Defendant’s objection on the basis that membership in the class can be ascertained by reference to objective criteria and defined by reference to Defendant’s conduct. Specifically, the class can be ascertained by whether the purported class member made a purchase from Bacci within a specified time period.

Class Certification. Finally, Defendant argued that the class should fail on the predominance prong, the requirement that questions of law or fact common to the class members predominate over any questions affecting only individual members. The Court determined that nothing had changed since it made its early determination that common issues of fact and law were evident on the face of Plaintiff’s Complaint and inherent in the proposed class definition. The conduct at issue, Defendant’s creation of computer-generated credit card receipts, is uniform across the class.

Notification. Plaintiff proposed notice by publication and asked the Court to approve a one-time publication of the class notice in the Chicago Sun-Times and publication on Class Counsel’s website. Rule 23(b)(3) provides that “the court must direct to class members the best notice that is practicable under the circumstances.” Here the Court found that in addition to a one-time publication in the Chicago Sun-Times, the Plaintiff should also look to local media outlets to publish the notice. For instance, the Court suggested that the notice be published in local publications around Bacci’s location, at Bacci, and a link to the class notice should be put on Bacci’s website.