United States District Court, E.D. California
CIRENA TORRES, on behalf of herself and all others similarly situated, Plaintiffs,
PET EXTREME, Defendant.
FINDINGS AND RECOMMENDATIONS RECOMMENDING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT (ECF Nos. 11-13)
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Cirena Torres, on behalf of herself and all others similarly situated, filed this class action complaint against Defendant Pet Extreme alleging violations of the Fair and Accurate Credit Transactions Act ("FACTA"), 15 U.S.C. 1681 et seq. Currently before the Court is the joint motion of Plaintiff Cirena Torres and Defendant Pet Extreme for preliminary approval of the class action settlement.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Pet Extreme operates a chain of retail stores offering a variety of goods and services for sale to the public. (Compl. ¶ 11, ECF No. 1.) In conducting business, Defendant accepts credit card and debits cards. (Id. at ¶ 31.) The FACTA provides that by December 4, 2006, merchants were to comply the Act, which requires that no more than the last five digits of the credit card number can be printed on the receipt and the expiration date of the card must be deleted. (Id. at ¶¶ 29, 39.) Plaintiff Torres contends that she made a purchase from Defendant after December 2006 using a credit card or debit card and the expiration date of her card, the brand of the card, and the last four digits of the card were printed on the receipt. (Id. at ¶ 32.)
On November 2, 2013, Plaintiff filed this class action alleging that Defendant is in violation of the FACTA by printing the expiration date of credits cards on customer receipts. After engaging in negotiations, the parties are seeking preliminary approval of the class-wide settlement of this lawsuit.
The Ninth Circuit has declared that a strong judicial policy favors settlement of class actions. Class Plaintiffs v. City of Seattle , 955 F.2d 1268, 1276 (9th Cir. 1992). Nevertheless, especially where settlement occurs prior to class certification, courts must peruse the proposed settlement to ensure the propriety of class certification and the fairness of the settlement. Stanton v. Boeing , 327 F.3d 938, 952 (9th Cir. 2003).
To certify a class, a plaintiff must demonstrate that all of the prerequisites of Rule 23(a), and at least one of the requirements of Rule 23(b) of the Federal Rules of Civil Procedure have been met. Wang v. Chinese Daily News, Inc. , 737 F.3d 538, 542 (9th Cir. 2013). This requires the court to "conduct a rigorous analysis' to determine whether the party seeking class certification has met the prerequisites of Rule 23." Wright v. Linkus Enterprises, Inc. , 259 F.R.D. 468, 471 (E.D. Cal. 2009).
Federal Rule of Civil Procedure 23(e)(2) requires that any settlement in a class action be approved by the court which must find that the settlement is fair, reasonable, and adequate. The role of the district court in evaluating the fairness of the settlement is not to assess the individual components, but to assess the settlement as a whole. Lane v. Facebook, Inc. , 696 F.3d 811, 818-19 (9th Cir. 2012) reh'g denied 709 F.3d 791 (9th Cir. 2013).
A. Certification of the Class
Even where the certification of the class is unopposed, the court must examine whether the settlement class satisfies the requirements of Rule 23(a) of the Federal Rules of Civil Procedure of numerosity, commonality, typicality, and adequacy of representation. Hanlon v. Chrysler Corp. , 150 F.3d 1011, 1019 (9th Cir. 1998). The court is required to pay "undiluted, even heightened attention' to class certification requirements in a settlement context." Hanlon , 150 F.3d at 1019 (quoting Amchem Products, Inc. v. Windsor ("Amchem") , 521 U.S. 591, 620 (1997)). The dominant concern of Rule 23(a) and (b) is whether the proposed class has sufficient unity so that it is fair to bind absent class members to the decisions of the class representatives. Amchem , 521 U.S. at 621.
The numerosity requirement is satisfied where "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). The parties have identified 235, 288 transactions that were made with a unique credit or debit card. (Decl. of Eric Gonzalves ¶ 10, ECF No 12.) The number of individual class members in this instance far exceeds the number that have been found to be so numerous that joinder of all members would be impracticable. See Sullivan v. Chase Inv. Services of Boston , 79 F.R.D. 246, 257 (N.D. Cal. 1978) ("a class of 1000 clearly satisfies the numerosity requirement"). The class which exceeds 235, 000 members satisfies the numerosity requirement.
The commonality requirement is satisfied where "there are questions of law or fact that are common to the class." Fed.R.Civ.P. 23(a)(2). The key inquiry is "whether class treatment will generate common answers apt to drive the resolution of the litigation.'" Arredondo v. Delano Farms Co., ___ F.R.D. ___, 2014 WL 710945, at *7 (E.D. Cal. Feb. 21, 2014) (quoting Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___ , 131 S.Ct. 2541, 2551 (2011)). Commonality is not required for all of the claims. It is sufficient if there is one single issue common to the proposed class. True v. American Honda Motor Co. , 749 F.Supp.2d 1052, 1064 (C.D. Cal. 2010).
Plaintiffs contend that all class members share two common legal questions: 1) whether Defendant violated the FACTA by printing the expiration date of the card on the receipts; and 2) whether the alleged violation was willful. The Court agrees that the potential claims of all class members arise from the same conduct. All class members are alleged to have received a receipt that did not comply with the FACTA when making a purchase from one of Defendant's establishments. The facts and legal issues are substantially identical for all class members. The Court finds that class relief based upon commonality is appropriate in this instance.
Rule 23(a)(3) requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class[.]" This does not require the claims to be substantially identical, but that the representatives claims be "reasonably co-extensive with those of the absent class members." Hanlon , 150 F.3d at 1020. Typicality is determined by looking to the nature of the claims of the class representatives and tests "whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct." Hanon v. Dataproducts Corp. , 976 F.2d 497, 508 (9th Cir. 1992) (quoting Schwartz v. Harp , 108 F.R.D. 279, 282 (C.D.Cal.1985)).
Plaintiff alleges that she and the unnamed class members were subjected to the same injury, violation of their rights under the FACTA, by the same conduct, having the expiration date of their credit or debit card printed on their receipt. The conduct at issue here is not unique to Plaintiff, but is common to all class members. Furthermore, the FACTA provides that civil liability for willful noncompliance is "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." Bateman v. American Multi-Cinema, Inc. , 623 F.3d 708, 717 (9th Cir. 2010). In this instance, all class members are entitled to the same relief under 15 U.S.C. § 1681n which applies to all the alleged willful violations of the FACTA. See Medrano v. WCG Holdings, Inc., No. SACV 07-05-6 JVS (RNBx), 2007 WL 4592113, at *3 (C.D. Cal. Oct. 15, 2007) (finding typicality where representative's claims were substantially identical to the claims of the proposed class). Plaintiff satisfies the typicality requirement.
The named plaintiffs must fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a)(4). In determining whether the named plaintiffs will adequately represent the class, the courts must resolve two questions: "(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Hanlon , 150 F.3d at 1020. "Adequate representation depends on, among other factors, an absence of antagonism between representatives and absentees, and ...