MEMORANDUM OPINION AND ORDER
On August 11, 2007, Christopher D. Shur-land (“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 Bac-ci 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 FAC-TA. Shurland,
DISCUSSION
I. Motion to Decertify
As this court noted when initially certifying the class in this case, “class certification is ‘inherently tentative.’ ” Shurland,
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)(l)-(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 Plaintiffs inability to identify additional individual members of the class. (Def.’s Mot. to Deeert. 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 Plaintiffs 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.
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,
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.,
No need for assessment of the mental state of class members is presented in this case. The court is satisfied that manageability problems are not insurmountable here.
B. Due Process Issues
Defendant urges that because individual class members cannot be identified, “Due Process for defendant and the class members will be thwarted.”
Defendant argues that the Rule 23(c)(2) requirements cannot be met in this case because absent class members have not been identified. Defendant cites Smith v. Shawnee Library System,
Defendant insists that notice by publication is unprecedented in class actions certified under Federal Rule of Civil Procedure 23(b)(3). (Def.’s Mot. to Decert. at 9.) In the court’s understanding, however, case authority does contemplate notice by publication alone in 23(b)(3) class actions where individual class members cannot be identified. The court is called upon to ensure that each class member receives “the best practicable notice that is: ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” F.C.V., Inc. v. Sterling Nat. Bank,
Where, as in this case, individual notice is not possible, other methods of contacting the class members may be utilized. As the Supreme Court has explained: “This Court has not hesitated to approve of resort to publication as a customary substitute in [a] class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights.” Mul-lane v. Central Hanover Bank & Trust Co.,
In instances where the names and addresses of class members are not easily ascertainable, notice by publication alone continues to find support in more recent case law. “When individual notice is infeasible, notice by publication in a newspaper of national circulation ... is an acceptable substitute.” Mirfasihi v. Fleet Mortg. Corp.,
Courts have become increasingly willing to order notice through a variety of mechanisms — including demographically targeted publication — designed to reach unidentified or unidentifiable class members. In Mirfas-ihi, for example, the court noted that “[t]he World Wide Web is an increasingly important method of communication, and, of particular pertinence here, an increasingly important substitute for newspapers. Although [Defendant] did not post a notice on its own website, a firm that was hired to administer the settlement maintained a website with details of the case, and so far as appears that was an acceptable substitute.”
In this case, decertifying the class because class members cannot be identified by name would create a perverse incentive— it would reward a class action defendant for its failure to maintain customer records. Plaintiff notes that the difficulty in identifying individual members of this class stems in part from Defendant’s destruction of its records. (PL’s Resp. in Opp. to Def.’s Mot. to Decert. at 3, 6, 11.) Defendant objects, noting that there is no basis for the conclusion that its record-keeping violated any regulatory standard. (Def.’s Reply in Supp. of Mot. to Decert. at 3.) The absence of any impropriety aside, whether a class action is appropriate cannot be a function of Bacci’s record-
This court must indeed carefully assess the sufficiency of Plaintiffs proposed notice; for purposes of the due process assessment, however, the court is satisfied that notice by publication may be sufficient when individual class members cannot be identified.
C. Ascertaining and Identifying the Class Members
Defendant contends the absence of records identifying the class members by name requires decertification of the class for another reason: that the class itself cannot be ascertained and identified. (Def.’s Mot. to Decert. at 12.) Again, the court disagrees. In Oshana v. Coca-Cola Co.,
Notably, in one of the cases Defendant cites for the proposition that the class must be ascertainable, the court approved class certification despite the fact that determining its members required a more complicated factual assessment than what is called for here. The class at issue in that case consisted of
persons or entities who (1) received, on a telephone facsimile machine, a fax transmitted on February 23 or March 29, 2005, that advertised mortgage refinancing or debt consolidation loan programs and that instructed the recipient to “Call the experts for a free analysis” at “1-877-907-SAVE” or “1-877-489-8777” or “1-410-349-4220,” (2) owned and/or paid for some portion of the operation of the machine on which the fax was received, and (3) had not previously consented to receiving such advertisements addresses both of these deficiencies.
G.M. Sign, Inc. v. Franklin Bank, S.S.B., No. 06 C 949,
As other courts in this district have observed, “a class is sufficiently definite if its members can be ascertained by reference to objective criteria and may be defined by reference to defendant’s conduct.” Hinman v. M and M Rental Center, Inc.,
D. Numerosity
Defendant’s challenge to the numerosity finding requires little discussion. Plaintiffs inability to specifically identify the class members does not alter the determination that more than 6,000 of them exist. As noted in the opinion originally certifying the class, “[t]he case law is clear ... that a present lack of identifying details such as contact information or the names of class members need not defeat class certification.” Shurland,
E. Predominance Of Common Issues
Finally, Defendant argues that the class should be decertified because it fails on the predominance prong — that is, the requirement that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). This court earlier found the predominance requirement satisfied because “the question of whether Defendant acted willfully is central both to Plaintiffs individual claim and to the claims of the class as a whole.” Shurland,
II. Motion to Approve Class Notice
As discussed above, notice by publication alone may be permissible when it is the best notice practicable. Plaintiff asks this court to approve a one-time publication of class notice in the Chicago Sun-Times and publication on Class Counsel’s website.
In proceeding with a Rule 23(b)(3) class, “the court must direct to class members the best notice that is practicable under the circumstances.” Fed. R. Crv. P. 23(e)(2)(B). The Seventh Circuit has said that “[w]hen individual notice is infeasible, notice by publication in a newspaper of national circulation ... is an acceptable substitute.” Mirfasihi v. Fleet Mortg. Corp.,
The language of Plaintiffs proposed notice appears to be adequate, however. Rule 23(c)(2)(B) requires that the class notice for a Rule 23(b)(3) class “must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member
CONCLUSION
For the foregoing reasons, Defendant’s Motion to Decertify [144] is denied. Plaintiffs motion to approve class notice [137] is also denied as to the plan of notice, but approved as to the content of the notice. Plaintiff is directed, within 14 days, to propose a new plan for notifying the class, consistent with the recommendations expressed in this opinion.
Notes
. Defendant also argues that it "will be deprived of its opportunity for cross examination at trial ... and will likely be faced with a plaintiff asking for up to $6.3 million at trial without any opportunity to rebut plaintiff's case-in-chief ... Defendant cannot face its challengers at pretrial proceedings or at trial." (Def.'s Mot. to Decert. at 7.) Defendant cites no case law in support of this proposition, nor has Defendant explained what information it would seek from individual class members by way of cross examination.
Justice Scalia did recently grant a stay in a state class action judgment against tobacco companies on behalf of Louisiana smokers, in which plaintiffs alleged that the companies defrauded the class by "distorting] the entire body of public knowledge” about the effects of nicotine. Philip Morris USA Inc. v. Scott, - U.S. -,