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Dister v. Benetton U.S.A. Corp.

February 22, 2008

ROBERT DISTER, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
BENETTON U.S.A. CORPORATION D/B/A UNITED COLORS OF BENETTON, DEFENDANT.



The opinion of the court was delivered by: Honorable Susan Illston United States District Judge

JOINT STIPULATION AND [PROPOSED] ORDER TO STAY ACTION PENDING NINTH CIRCUIT'S REVIEW OF CLASS CERTIFICATION IN FACTA CASES

Plaintiff Robert Dister ("Plaintiff") and Defendant Benetton U.S.A. Corporation d/b/a United Colors of Benetton ("Defendant"), by and through their respective counsel, and subject to Court approval, hereby stipulate as follows:

WHEREAS, Plaintiff in this putative class action alleges that Defendant willfully violated a provision of the Fair and Accurate Credit Transactions Act ("FACTA"), 15 U.S.C. § 1681c(g), which provides, in relevant part, 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 the sale or transaction";

WHEREAS, Plaintiff seeks, among other relief, statutory damages for Defendant's alleged willful violation of FACTA pursuant to 15 U.S.C. § 1681n, on behalf of a class presently defined as all consumers nationwide who received receipts containing prohibited information;

WHEREAS, Defendant contends that it properly truncated account numbers on receipts, meaning that its violation, if any, of 15 U.S.C. §1681c(g) was its printing of expiration dates on receipts;

WHEREAS, in Soualian v. International Coffee & Tea, LLC, Case No. CV 07-502 RGK (JCx) (C.D. Cal.), leave to appeal granted, Appellate Dkt No. 07-56377 (9th Cir. Sept. 13, 2007) ("Soualian"), the plaintiff similarly sought certification of a nationwide class based on the defendant's alleged willful printing of credit and debit card expiration dates on customer receipts in violation of 15 U.S.C. §1681c(g);

WHEREAS, the district court denied class certification in Soualian finding that a class action would not be a "superior" method of adjudication under FED.R.CIV.P. 23(b)(3) because a class award of the statutory damages authorized by 15 U.S.C. § 1681n would be disproportionate to the harm posed by the defendant's allegedly willful violations of the statute;

WHEREAS, several district courts in the Ninth Circuit have denied class certification in other FACTA cases on similar grounds;

WHEREAS, Defendant intends to oppose Plaintiff's motion for class certification for at least some of the same legal and factual reasons that the Soualian court relied upon to deny class certification;

WHEREAS, the plaintiff in Soualian filed a petition seeking immediate review of the court's order denying class certification in Soualian pursuant to FED.R.CIV.P. 23(f), which the Ninth Circuit granted on September 13, 2007;

WHEREAS, the appellant Soualian's opening brief was filed on January 16, 2008, the appellee International Coffee's brief is due on February 26, 2008, and appellant's reply brief, if any, is due on March 11, 2008;

WHEREAS, prior to and since the Ninth Circuit's grant of review, this Court along with other district courts in the Central and Northern Districts of California stayed the following FACTA cases pending the Ninth Circuit's decision in Soualian:

1. Moon v. FedEx Kinko's Office and Print Services, Inc., Case No. C 06-7657 SI ...


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