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Another Federal Court Holds Putative Class Not Ascertainable Because Determining Class Membership Not Administratively Feasible

On September 3, 2013 by Schnader in Finance

By Christian Sheehan

The U.S. District Court for the Eastern District of Kentucky’s recent decision in Gist v. Pilot Travel Centers, LLC, highlights the key role that “ascertainability” of the putative class plays at the class certification stage. Although it does not appear in the text of Federal Rule of Civil Procedure 23, ascertainability is widely recognized as a critical, implicit requirement for class certification.  In order to satisfy that requirement, a plaintiff must demonstrate that the class definition is sufficiently precise and that members of the proposed class can be identified in an administratively feasible way without substantial individualized fact-finding.  The court in Gist refused to certify the class, in large part, because it was impossible to ascertain class members without such individualized inquiries.

In a recent Schnader Alert, partners Theresa Loscalzo and Ira Richards explored a growing trend among courts to interpret the ascertainability requirement to require denial of class certification where the membership of the class cannot be determined in an administratively feasible manner.  Gist is the latest entrant in this development.

The plaintiff in Gist, a commercial truck driver, used his Fleet One credit card at a Pilot Travel Center in Kentucky.  After completing his transaction, the plaintiff was given a receipt that displayed his card number in its entirety.  He filed a putative class action against Pilot alleging that Pilot violated the Fair and Accurate Credit Transactions Act (FACTA), which prohibits companies that accept credit or debit cards from printing receipts that display anything more than the last five digits of the card number.  The plaintiff sought certification of a class consisting of all persons who Pilot provided with “an electronically printed receipt in connection with a Fleet One credit or debit card transaction and the receipt contained more than the last five digits of the consumer’s credit card number.”

Identifying class members proved to be a difficult task.  In 2010, the plaintiff served Fleet One with a subpoena duces tecum seeking Fleet One’s records relating to transactions conducted over a six-day period at the same Pilot location that he visited.  In an opinion granting (in part) the plaintiff’s motion to compel production of Fleet One’s records, the U.S. District Court for the Middle District of Tennessee observed that nine transactions conducted at the Pilot location during that six-day period-involved potential class members, i.e., individuals who used Fleet One cards. The plaintiff later narrowed this to three transactions based on codes indicating whether a transaction occurred inside a Pilot store—in which case a receipt would be produced—or at the pump—in which case a receipt would not be produced.  Extrapolating from the records for this one store, the plaintiff estimated that his nationwide class would contain at least 2,000 members.

The court disagreed, reasoning that there was no feasible way to determine who the class members were (or how many there were) without substantial individualized inquiries.  Pilot’s records did not contain the information necessary to identify class members.  Pilot did not maintain records of the names and addresses of individual customers who used credit or debit cards at Pilot locations, nor did it keep records reflecting whether a receipt was printed for each transaction, what was printed on the receipt, or whether the receipt was actually given to the customer.

The plaintiff, however, argued that it was possible to identify class members by piecing together a Pilot representative’s testimony with Fleet One’s records. The Pilot representative admitted that receipts associated with all Fleet One cards displayed more than five digits from May through September 2007.  He further admitted that although Pilot corrected this issue in September 2007, receipts at some locations continued to display full account numbers due to a “computer bug.”  The plaintiff argued that he could determine potential class members by pulling Fleet One’s records for this time period for all transactions that occurred inside Pilot stores—transactions for which receipts would have been available.

The court held that even if this “burdensome task” was undertaken, the class would still not be ascertainable.  The court explained that Fleet One’s records did not show whether a receipt was printed nor what information would have been on a particular receipt. As the Tennessee district court presiding over the earlier discovery dispute noted, “[t]he best [information Fleet One] could provide . . . would be a list of fleet companies for the plaintiff to comb through to find consumers so he can contact them and determine whether they received a problematic receipt.”  The need for such individualized fact-finding precluded class certification.