United States District Court, E.D. New York
MEMORANDUM & ORDER
RAMON E. REYES, Jr., Magistrate Judge.
Yehuda Katz ("Plaintiff") brought this putative class action against ABP Corporation ("Settling Defendant") and "Does 1-10" alleging violations of the Fair and Accurate Credit Transactions Act ("FACTA") amendment to the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. (Dkt. Nos. 1, 12.) Plaintiff alleges that Settling Defendant willfully violated FACTA by failing to properly truncate credit or debit card numbers and expiration dates on electrically printed receipts provided to its customers. Plaintiff seeks statutory damages, punitive damages, and attorney's fees and costs on behalf of himself and class members. As a result of significant pre-mediation discovery and arms-length negotiations led by mediator Roger M. Deitz, Esq., the parties reached a settlement that will provide class members with the choice of obtaining a cash payment of $9.60 or a $15.00 transferable voucher that can be used at any ABP retail location in the United States. (Dkt. No. 45 ("Pl.'s Mem.") at 2-3; Dkt. No. 46-2 (the "Settlement Agreement") ¶ II(1).)
Plaintiff now seeks the Court's preliminary approval of the Settlement Agreement and an order appointing Plaintiff as Class Representative and Plaintiff's counsel as Class Counsel. For purposes of settlement only, Settling Defendant does not oppose Plaintiff's motion.
CERTIFICATION OF SETTLEMENT CLASS
1. The Court provisionally certifies the following class for settlement purposes:
All persons who used a debit or credit card, including without limitation a Visa,
MasterCard, or Discover debit or credit card or American Express credit card, at any of Settling Defendant's Retail Locations where the person was provided an electronically printed receipt at the point of sale or transaction that displayed the expiration date of that person's credit or debit card and/or more than five digits of that person's credit or debit card number during the period beginning August 1, 2011 through August 31, 2012.
(the "Settlement Class") (Settlement Agreement ¶ I(4).)
2. The Court finds, preliminarily and for purposes of settlement, that the prerequisites of Fed.R.Civ.P. 23(a) and (b)(3) have been satisfied.
3. Plaintiff satisfies the "implicit requirement" of Fed.R.Civ.P. 23, because the proposed class is "precise, objective and presently ascertainable." Bakalar v. Vavra, 237 F.R.D. 59, 64 (S.D.N.Y. 2006). Membership in the class is defined by identifiable, objective criteria. See Friedman-Katz v. Lindt & Sprungli (USA), Inc., 270 F.R.D. 150, 154 (S.D.N.Y. 2010) (finding that class defined as "all debit or credit card customers who received a receipt from Lindt Store # 347 whose receipt was printed after December 4, 2006 and contained more than the last five digits of their credit card number, or whose receipt was printed after June 3, 2008 and contained the expiration date of the card" set forth identifiable criteria to define class membership).
4. Plaintiff satisfies Rule 23(a) because there are 268, 000 potential class members (Settlement Agreement ¶ II(1.2)), and thus joinder is impractical. See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) ("[N]umerosity is presumed at a level of 40 members....") (citations omitted).
5. Plaintiff satisfies Rule 23(a)(2) because Plaintiff and the class members share common issues of fact and law, including: (1) whether Settling Defendant had a practice during the class period of providing printed receipts displaying more than five digits of the credit/debit card number and/or expiration date of the debit or credit card; (2) whether Settling Defendant provided such receipts to Plaintiff and members of the Class; (3) whether Settling Defendant's conduct violated the FACTA; (4) whether Settling Defendant's conduct was willful; (4) whether Plaintiff and members of the class are entitled to statutory damages, punitive damages, costs and/or attorney's fees for Settling Defendant's conduct; and (6) whether any defenses apply. (Pl.'s Mem. at 7.) See Friedman-Katz, 270 F.R.D. at 155 (finding common issues of law and fact where claims depend on contention that defendant had regular business practice of providing non-truncated receipts and that defendants acted willfully).
6. Plaintiff satisfies Rule 23(a)(3) because Plaintiff's claim arises from the same factual and legal circumstances that form the bases of the class members' claims. Plaintiff alleges that Settling Defendant violated FACTA by providing him, and each member of the proposed Class, with a transaction receipt containing more than the last five digits and/or the expiration date of the credit card during the relevant period. See Savino v. Computer Credit, Inc., 173 F.R.D. 346, 352 (E.D.N.Y. 1997) (stating that typicality is satisfied "when each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability'") (quoting Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)); see also Karvaly v. eBay, Inc., 245 F.R.D. 71, 82 (E.D.N.Y. 2007) (recognizing that typicality is generally satisfied "as long as plaintiffs assert... that defendants committed the same wrongful acts in the same manner against all members of [the] class") (citation, quotation marks, and brackets omitted).
7. Plaintiff satisfies Rule 23(a)(4) because there is no conflict or antagonism between Plaintiff and the potential class members, Westerfield v. Washington Mut. Bank, Nos. 06-cv-2817 (CBA) (JMA), 08-cv-00287 (CBA) (JMA), 2009 WL 6490084, *2 (E.D.N.Y. June 26, 2009) (citation omitted), and because counsel are "qualified, experienced and generally able to conduct the litigation, " Ayzelman v. Statewide Credit Servs. Corp., 238 F.R.D. 358, 363 (citation and quotation marks omitted).
8. The Court finds that Plaintiff will "fairly and adequately protect the interests of the class, " Fed.R.Civ.P. 23(a)(4), and appoints Plaintiff as a representative party.
9. Plaintiff also satisfies Rule 23(b)(3) because common factual allegations and legal theory predominate over any factual or legal variations among the class members. The core legal issues center on whether Settling Defendant provided improperly truncated sale receipts, whether this conduct violates FACTA, and whether Settling Defendant's conduct was willful. (Pl.'s Mem. at 10.) The resolution of these issues applies to all claims and can be achieved through generalized proof of Settling Defendant's business practice and state of mind when providing improperly truncated receipts. See Engel v. Scully & Scully, Inc., 279 F.R.D. 117, 130 (S.D.N.Y. 2011) (finding predominance is met where the parties dispute the defendant's business practice when printing receipts and the complaint seeks statutory, rather than individualized, damages).
10. Class adjudication of this case is superior to individual adjudication "due to the low damages incentive for individual litigation and the consistency of results encouraged by class action." Id. at 130 (finding class action superior method for adjudicating FACTA claim) (citations omitted).
APPOINTMENT OF CLASS COUNSEL
11. The Court finds that Joshua C. Dickinson and Bryant T. Lamer of Spencer Fane Britt & Browne LLP, Robert L. Lash of Herzfeld & Rubin, P.C., and Shimson Wexler of the Law Offices of Shimson Wexler satisfy the requirements of Fed.R.Civ.P. 23(g) and appoints these individuals as Class Counsel. Rule 23(g) requires courts to consider "the work counsel has done in identifying or investigating potential claims in the action, ... counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action, ... counsel's knowledge of the applicable law, and... the resources counsel will commit to representing the class.'" Damassia v. Duane Read, Inc., 250 F.R.D. 152, 165 (S.D.N.Y. 2008) (quoting Fed.R.Civ.P. 23(g)).
12. Plaintiff's counsel did substantial work in prosecuting this matter, including successfully defending against Settling ...