Aliano v. Joe Caputo and Sons, Inc. et al

Filing 255

WRITTEN Opinion entered by the Honorable Harry D. Leinenweber on 6/17/2011: Plaintiff Kathy Aliano's Motion for Approval of Class Notice Plan 236 is granted. Plaintiff shall use the class definition set forth in this Opinion in executing her class notification. The oral ruling date of 6/23/2011 is stricken. Mailed notice(wp, ) (Main Document 255 replaced on 6/17/2011) (wp, ). (Main Document 255 replaced on 6/17/2011) (wp, ).

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Harry D. Leinenweber

CASE NUMBER

09 C 910

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

6/17/2011

Aliano vs. Joe Caputo & Sons - Algonquin, Inc.

DOCKET ENTRY TEXT

Plaintiff Kathy Aliano’s Motion for Approval of Class Notice Plan [236] is granted. Plaintiff shall use the
class definition set forth in this Opinion in executing her class notification. The oral ruling date of 6/23/2011
is stricken.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
On February 12, 2008, Plaintiff Kathy Aliano (hereinafter, the “Plaintiff”) shopped at Joe Caputo &
Sons Fruit Market in Algonquin, Illinois, and used her Discover credit card to purchase $105.57 in groceries.
She received a receipt from the store that showed the first six digits and last four digits of her credit card
number, which violates the Fair and Accurate Credit Transactions Act (“FACTA”). 15 U.S.C. § 1681c(g)(1).
Plaintiff subsequently filed a putative Class Action Complaint against Defendant Joe Caputo and Sons –
Algonquin, Inc.’s (hereinafter, the “Defendant”), seeking statutory damages of $100 to $1,000 per FACTA
violation, plus attorneys’ fees and costs, for Defendant’s alleged willful FACTA violations. Aliano does not
claim any actual damages from Defendant’s actions. The Court certified the putative class on September 21,
2010. Following this Court’s denial of Defendant’s Motion for Summary Judgment [235], Plaintiff moved to
approve a class notice plan. [236]
As an initial matter, a dispute exists over the potential class size. While Plaintiff alleges the class may
comprise more than 294,000 individuals, Defendant argues that, at maximum, 77,214 individuals received a
receipt that did not comply with FACTA. Defendant calculated this number by eliminating records with
duplicate credit card numbers from its credit card transaction records from August 2007 through February 28,
2009, produced to Plaintiff by FifthThird Bank Processing Solutions.
Defendant argues that with this reduced class size, Plaintiff must send individual notice to each
member of the class pursuant to Federal Rule of Civil Procedure 23(c)(2)(B). “[M]embers of a Rule 23(b)(3)
class must receive reasonable notice and an opportunity to opt out; that is an absolute requirement for a court
to exercise jurisdiction over those class members.” Smith v. Shawnee Library Sys., 60 F.3d 317, 321 (7th Cir.
1995). In order to effectuate this notice, the Court must “direct to class members the best notice practicable
under the circumstances including individual notice to all members who can be identified through reasonable
effort.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974) (quotation omitted).
In this case, Defendant’s plan for individual notice is not reasonable. The text file from FifthThird
Bank Processing Solutions does not contain the names and addresses associated with each credit or debit card
09C910 Aliano vs. Joe Caputo & Sons - Algonquin, Inc.

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