Cicilline v. Jewel Food Stores, Inc.

• Decision Date: 31 March 2008
• Docket Number: No. 07-CV-2333.,07-CV-2333.
• Citation: 542 F.Supp.2d 831
• Court: U.S. District Court — Northern District of Illinois
• Parties: Stephen CICILLINE, Jr., et al, individually and on behalf of a class, Plaintiffs, v. JEWEL FOOD STORES, INC., d/b/a Jewel-Osco, a New York corporation, Defendant.

Page 831

542 F.Supp.2d 831

Stephen CICILLINE, Jr., et al, individually and on behalf of a class, Plaintiffs, v. JEWEL FOOD STORES, INC., d/b/a Jewel-Osco, a New York corporation, Defendant.

No. 07-CV-2333.

United States District Court, N.D. Illinois, Eastern Division.

March 31, 2008.

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Richard Harvey Lehman, Matthew David Tanner, Tanner & Lehman, Clinton A. Krislov, Krislov & Associates, Ltd., Chicago, IL, for Plaintiffs.

Thomas R. Dee, Michael James Waters, Michael Derek Zolner, Vedder Price P.C., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, JR., District Judge.

This matter is before the Court on a Motion for Class Certification (DE 45), filed by Plaintiffs Stephen Cicilline Jr., Jeffrey Batterson, and Christopher Iosello on September 12, 2007. The Court has reviewed the parties' briefs and statements, and, for the reasons stated below, the Court grants Plaintiffs' Motion for Class Certification and denies as moot Plaintiffs' Motion to Cite Additional Authority in Support of Class Certification (DE 76).

I. Background

This lawsuit is one of hundreds of nearly identical actions filed against retailers in several states. Plaintiffs Stephen Cicilline, Jr., Jeffrey Batterson, and Christopher Iosello¹ allege that Defendant Jewel Food Stores ("Jewel") violated 15 U.S.C. § 1681 c(g), a provision of the Fair Credit Reporting Act ("FCRA"), as amended by the Fair and Accurate Credit Transactions Act of 2003 ("FACTA"). Section 1681c(g) provides:

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.

Any person who willfully fails to comply with this section with respect to any consumer is liable for "any actual damages sustained by the consumer as a result of the failure or damages not less than $100 and not more than $1000." 15 U.S.C. § 1681n(a)(1)(A).

In this case, each of the named Plaintiffs in this putative class action alleges that he shopped at a Jewel supermarket in Illinois in April or May 2007 (after the December 2006 statutory deadline to comply with § 1681 c(g)), made purchases using a credit card, and received a computer-generated receipt which displayed the card's expiration date. Plaintiff Cicilline alleges that on two separate occasions, and April 30, 2007, he received from Jewel Food Stores, Inc's location at 1224 S. Wabash, Chicago, Illinois, a computer-generated receipt that displayed his credit card expiration date. Plaintiff Batterson alleges that on April 8, 2007, he received from Jewel Food Stores, Inc's location at 13200 Village Green Drive, Huntley, Illinois, a computer-generated receipt that displayed his credit card expiration date. And Plaintiff Iosello alleges that on two separate occasions, April 25, 2007 and May 1, 2007, he received from Jewel Food Stores, Inc's location at 6509 West Grand Avenue, Gurnee, Illinois, a computer-generated receipt that displayed his credit card expiration date. Plaintiffs contend that Jewel should not have printed those expiration dates on their receipts because § 1681c(g) requires deletion of that data on all receipts printed after December 4, 2006. Plaintiffs seek certification of a class consisting of

[A]ll consumers to [whom] defendant Jewel Food Stores, Inc. provided an electronically printed receipt at the point of sale or transaction, in a transaction occurring in Illinois after the applicable effective date of FACTA, which receipt displays either (a) more than the last five digits of the consumer's credit card or debit card number; (b) the expiration date of the consumer's credit or debit card; and/or (c) both.

Plaintiffs also request that the Court appoint counsel for all three Plaintiffs as counsel for the class.

II. Analysis

A. Legal Standard

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, a plaintiff seeking class certification has the burden of proving that "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a); Matthews v. United Retail, Inc., 248 F.R.D. 210, 213, 2008 WL 618960, at *2 (N.D.Ill.2008). Failure to satisfy any of these requirements defeats a motion for class certification. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). If all four prongs of Rule 23(a) are met, the potential class also must satisfy one of the provisions of Rule 23(b). Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir.1992). Plaintiffs seek certification under Rule 23(b)(3), which requires a plaintiff to demonstrate "that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3). The Court exercises broad discretion in determining whether class certification is appropriate given the particular facts of the case. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir.1998); Murray v. New Cingular Wireless Servs., Inc., 232 F.R.D. 295, 298 (N.D.Ill.2005).

For purposes of deciding the certification question, the Court does not presume that all well-pleaded allegations are true. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676-77 (7th Cir.2001). Rather, the district court should "look[] beneath the surface of a complaint to conduct the inquiries identified in [Rule 23] and exercise the discretion it confers." Id. at 677. Nevertheless, the Court does not delve into the merits of the ultimate issues in the case, which do not affect the question of class certification under Rule 23. See Harris v. Circuit City Stores, Inc., 2008 WL 400862, at *3-4 (N.D.Ill. Feb.7, 2008); Lau v. Arrow Fin. Servs., LLC, 245 F.R.D. 620, 623 (N.D.Ill.2007); Levie v. Sears Roebuck & Co., 496 F.Supp.2d 944, 946-17 (N.D.Ill.2007); Hyderi v. Washington Mid. Bank, FA 235 F.R.D. 390, 395 (N.D.Ill.2006); Cavin v. Home Loan Center, Inc., 236 F.R.D. 387, 395 (N.D.Ill. 2006). Accordingly, this Court does not consider the parties' arguments as to whether Jewel's alleged violation of FACTA was willful. See also Matthews, 2008 WL 618960, at *3.

B. Rule 23(a) Requirements

1. Numerosity

Rule 23(a)(1) requires that a proposed class be so numerous that joinder is impractical. Fed.R.Civ.P. 23(a)(1). Jewel does not contest numerosity and estimates that since December 4, 2006, more than one million customers have received receipts which "may have" displayed their card expiration date. Def. Resp. at 4. This estimate more than satisfies the numerosity requirement. See, e.g., McCabe v. Crawford & Co., 210 F.R.D. 631, 643 (N.D.Ill.2002) ("Although there is no `bright line' test for numerosity, a class of forty is generally sufficient to satisfy Rule 23(a)(1)."). Indeed, several courts in this district have certified classes for alleged violations of 15 U.S.C. § 1681 c(g) with the number of potential class members well beyond forty. See Meehan v. Buffalo Wild Wings, Inc., ___ F.R.D. ___, ___, 2008 WL 548767, at *1 (N.D.Ill.2008) (certifying class where defendant allegedly provided thousands of electronically printed receipts during the relevant time period); Harris v. Circuit City Stores, Inc., 2008 WL 400862, at *3-4 (N.D.Ill. Feb. 7, 2008) (recommending certification of class of potentially 110,000 members); Halperin v. Interpark Inc., 2007 WL 4219419, at *1 (N.D.Ill. Nov. 29, 2007) (certifying class where over 900,000 qualifying receipts may have been printed).

2. Commonality

Rule 23(a) (2) next requires that there be "questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). The commonality requirement is satisfied by showing "a common nucleus of operative fact." Keele v. Wexler, 149 F.3d 589, 594 (7th Cir.1998). Cases dealing with the legality of standardized documents or conduct are generally appropriate for resolution by means of a class action because the document or conduct is the focal point of the analysis. See Heastie v. Community Bank, 125 F.R.D. 669, 675 (N.D.Ill.1989). This is true even though the nature and amount of damages may differ among the members of the class. Id.

Plaintiffs have articulated the common questions in this case to be (1) whether Jewel had a practice of providing customers with a sales or transaction receipt on which it printed more than the last five digits of the credit or debit card and/or the expiration date of the card, and (2) whether Jewel willfully violated FACTA. The class definition centers on Jewel's standardized conduct: the failure to redact expiration dates on receipts issued after December 4, 2006. That conduct is the same, as is the violation alleged, with respect to all members of the proposed class. Because the questions at the core of this matter are shared by all potential class members, Plaintiffs' proposed class meets the commonality requirement of Rule 23(a)(2). Troy v. Red Lantern Inn, Inc., 2007 WL 4293014, at *6 (N.D.Ill. Dec. 4, 2007); Halperin, 2007 WL 4219419, at *4.

3. Typicality

Next, Plaintiffs must show that their claims are typical of the claims of the entire class. Fed.R.Civ.P. 23(a)(3). "A plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory." Keele, 149 F.3d at 595 (internal citations omitted). Jewel argues that because some class members might have actual damages and the class representatives have not yet been the victim of credit card fraud...