United States District Court, D. New Hampshire
Margaret Foley on behalf of herself and all others similarly situated
Buckley's Great Steaks, Inc.; and Michael Timothy's Dining Group, Inc. Opinion No. 2015 DNH 078.
LANDYA McCAFFERTY, District Judge.
In this putative class action, Margaret Foley claims that defendants violated 15 U.S.C. § 1681c(g)(1), a section of the Fair and Accurate Credit Transactions Act of 2003 ("FACTA"), when Buckley's Great Steaks, Inc. ("BGS") issued approximately 32, 000 electronically printed point-of-sale credit-card receipts that included the card's expiration date. Before the court is plaintiff's motion for class certification.
In the memorandum of law in support of her motion, plaintiff recites the following class definition:
All persons to whom, on or after February 6, 2012 (the "Class Period"), Defendants provided a receipt that has the person's full name, [the] last four digits of [the] credit card or debit card's numbers and the full credit card or debit card's expiration date.
Pl.'s Mem. of Law (doc. no. 26-1) 2. In other filings, Foley describes the class in a variety of other ways,  but as she returns to the definition quoted above in her supplemental memorandum of law in support of class certification, document no. 31, the court takes that definition to be the operative one in this case.
After plaintiff filed her motion for class certification, but before the deadline for objecting, the parties filed a notice of settlement, and submitted a settlement agreement for approval by the court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure ("Federal Rules"). At a pretrial scheduling conference held on January 9, 2015, which also touched upon the parties' request for preliminary approval of their proposed settlement, the court raised issues concerning class certification and directed the parties to brief them. Based upon that briefing, and for the reasons that follow, Foley's motion for class certification is denied.
I. The Substantive Law
The court begins by briefly describing Foley's cause of action. She has sued under FACTA, which is "an amendment to the already existing Fair Credit Reporting Act [("FCRA")], 15 U.S.C. § 1981, et seq., " Rowden v. P. Parking Sys., Inc., 282 F.R.D. 581, 583 n.2 (C.D. Cal. 2012). FACTA provides, in pertinent part:
Except as otherwise provided in this subsection, 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 the sale or transaction.
15 U.S.C. § 1681c(g)(1). With respect to civil liability, the FCRA provides:
Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of -
(1)(A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1, 000;
(2) such amount of punitive damages as the court may allow; and
(3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.
15 U.S.C. § 1681n(a).
II. The Law of Class Certification
Class actions are "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). Such actions are governed by Rule 23 of the Federal Rules. Rule 23 establishes the following prerequisites to maintaining a class action:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(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). To determine whether those prerequisites have been met, a "district court must undertake a rigorous analysis.'" AstraZeneca AB v. United Food & Comm'l Workers Unions & Emp'rs Midwest Health Benefits Fund (In re Nexium Antitrust Litig.), 777 F.3d 9, 17 (1st Cir. 2015); see also Gintis v. Bouchard Transp. Co., 596 F.3d 64, 66 (1st Cir. 2010) (citing Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982); Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir. 2003)).
If all four prerequisites are met, then a class action may proceed, so long as the action fits into one of the three categories described in Rule 23(b). Foley asserts that this case fits into the third category, which requires
the court [to] find that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
Fed. R. Civ. P. 23(b)(3). "In classes certified under Rule 23(b)(3), the Rules invite a close look at the case before it is accepted as a class action." Brown v. Am. Honda (In re New Motor Vehicles Canadian Exp. Antitrust Litig.), 522 F.3d 6, 18 (1st Cir. 2008) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997)) (citations, internal quotation marks, and alteration omitted).
"A party seeking class certification must affirmatively demonstrate his compliance with... Rule ." Wal-Mart, 131 S.Ct. at 2551; see also Smilow, 323 F.3d at 38 ...