Shurland v. Bacci Café & Pizzeria on Ogden, Inc.
271 F.R.D. 139
N.D. Ill.2010Background
- Plaintiff Shurland alleged FACTA violations from December 5, 2006 to November 2007 based on Bacci receipts displaying full card numbers and expiration dates.
- Plaintiff identified 6,359 potentially violative transactions from Bacci’s processor records.
- Court originally certified a class of all persons receiving a compliant-violating receipt during the period.
- Defendant moved to decertify, arguing lack of identifiable class members and manageability concerns.
- Plaintiff moved for class notice; the court denied notice approval without prejudice to a new plan.
- Recordkeeping gaps by Defendant and third parties hinder identification of individual class members, complicating the numerosity and ascertainability analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the class remains manageable under Rule 23(b)(3). | Plaintiff—class size (~6,300) justifies certification despite identification gaps. | Defendant—inability to identify members defeats manageability and numerosity. | No; class remains manageable and numerosity satisfied. |
| Whether due process is satisfied when class members cannot be identified for personal notice. | Publication notice can suffice when individual notice is infeasible. | Personal notice is required for due process; publication is inadequate. | Publication notice may be sufficient to satisfy due process. |
| Whether the class is ascertainable and identifiable without full member data. | Class defined by objective criteria tied to Defendant’s conduct; ascertainable. | Lack of identifiable names/addresses precludes ascertainability. | Class is sufficiently ascertainable by objective criteria. |
| Whether numerosity is met given failure to identify all members. | Over 6,000 potential members supports numerosity. | Non-identifiability undermines numerosity. | Numerosity satisfied. |
| Whether common questions predominate over individual questions under Rule 23(b)(3). | Willfulness of FACTA violations is central to both class and individual claims. | Individual issues may predominate due to identification challenges. | Predominance satisfied. |
Key Cases Cited
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (best notice practicable standard in due process)
- Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) (due process in class actions and notice requirements)
- Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (standard for notice in class actions)
- Simer v. Rios, 661 F.2d 655 (7th Cir. 1981) (identify class members; difficulties may preclude class certification)
- Oshana v. Coca-Cola Co., 472 F.3d 506 (7th Cir. 2006) (class identifiable; ascertainability analysis in context)
- Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781 (7th Cir. 2004) (publication notice acceptable when individual notice infeasible)
- Hinman v. M and M Rental Center, Inc., 545 F.Supp.2d 802 (N.D. Ill. 2008) (definiteness of class by objective criteria)
- Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004) (notice strategies for nationwide settlements)