IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30550

ROBERT TICKNOR, et al.,

Plaintiffs-Appellants

v.

ROUSE’S ENTERPRISES, L.L.C., a Louisiana Limited Liability Company,

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-cv-1151

Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Three plaintiffs filed a motion to certify a class action against a grocery 

store chain for alleged violations of the Fair and Accurate Credit Transactions 

Act. The district court denied certification on predominance and superiority

grounds. We conclude the district court did not abuse its broad discretion, and 

therefore we AFFIRM.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 18, 2014

Lyle W. Cayce

Clerk

 

 Case: 14-30550 Document: 00512841052 Page: 1 Date Filed: 11/18/2014
No. 14-30550

FACTS AND PROCEDURAL BACKGROUND

The plaintiffs, Robert Ticknor, Matthew Russell, and Daniel Cutler,

brought suit in the United States District Court for the Eastern District of 

Louisiana. They claimed that Rouse’s Enterprises, L.L.C., a New Orleansbased grocery store chain, willfully violated Section 1681c(g) of the Fair and 

Accurate Credit Transactions Act (“FACTA”) by allowing credit card expiration 

dates to be printed on its store receipts.

The FACTA provision relevant to this case states 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.” 15 

U.S.C. § 1681c(g)(1). Rouse’s did not violate the restriction about card 

numbers; the only claim is that it printed expiration dates. A willful violation 

of FACTA entitles a plaintiff to recover actual damages or statutory damages 

of between $100 and $1,000, attorney’s fees, and potentially punitive damages. 

§ 1681n(a). The plaintiffs concede that none of Rouse’s customers suffered 

actual harm as a result of a FACTA violation. Therefore, they seek to recover 

the statutory penalty plus punitive damages and attorney’s fees. 

After discovery relevant to class issues, the plaintiffs moved under Rule 

23(b)(3) to certify a nationwide class of “[a]ll persons who made in-store 

purchases from the Defendant using a debit or credit card, in a transaction 

occurring from May 8, 2010, through May 10, 2012, at one of the [specified] 

Rouses stores . . . .” Rouse’s opposed class certification.

The district court held an evidentiary hearing on the class certification 

motion. After receiving briefing regarding the class’s manageability, the court 

denied certification. Although it concluded that liability was a common issue 

across the class, the court determined that the plaintiffs had not “satisfied 

2

 Case: 14-30550 Document: 00512841052 Page: 2 Date Filed: 11/18/2014
No. 14-30550

their burden of establishing that common issues predominate” because it 

would be necessary to determine “whether each class member is a ‘cardholder,’ 

a ‘consumer,’ and received a receipt.” Furthermore, the court held that the 

“individual mini-trials” necessary to resolve each class member’s claims would 

“be impracticable and a waste of judicial resources” and that, therefore, the 

plaintiffs had “not carried their burden of showing a class action is a superior 

method for adjudicating this case.” This interlocutory appeal followed.1

DISCUSSION

“We review a denial of class certification for abuse of discretion and legal 

questions implicated by that decision are reviewed de novo.” Funeral 

Consumers Alliance, Inc. v. Serv. Corp. Int’l, 695 F.3d 330, 344–45 (5th Cir. 

2012) (citations omitted). “Implicit in this deferential standard is a recognition 

of the essentially factual basis of the certification inquiry and of the district 

court’s inherent power to manage and control pending litigation.” Allison v. 

Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998) (citation omitted). 

Certification of a class under Rule 23(b)(3) requires that: (1) “the 

questions of law or fact common to class members predominate over any 

questions affecting only individual members,” and (2) “a class action is superior 

to other available methods for fairly and efficiently adjudicating the 

controversy.” FED. R. CIV. P. 23(b)(3). Pertinent to these questions are “the 

1 The plaintiffs devote a significant portion of their facts section to evidence intended 

to show that Rouse’s willfully violated FACTA. That effort was misguided. “Rule 23 grants 

courts no license to engage in free-ranging merits inquiries at the certification stage. Merits 

questions may be considered to the extent—but only to the extent—that they are relevant to 

determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen 

Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013) (citations omitted). 

Our review is circumscribed by this same standard. Consequently, we omit mention of the 

facts pertaining to the merits of the plaintiffs’ claim.

3

 

 Case: 14-30550 Document: 00512841052 Page: 3 Date Filed: 11/18/2014
No. 14-30550

likely difficulties in managing a class action.” FED. R. CIV. P. 23(b)(3)(D). Such

difficulties “encompass[] the whole range of practical problems that may 

render a class action format inappropriate for a particular suit.” Eisen v. 

Carlisle & Jacquelin, 417 U.S. 156, 164 (1974).

The district court determined that the plaintiffs needed to prove that 

they: (1) were not using someone else’s card to make their purchases, (2) were 

consumers rather than business purchasers, and (3) took their receipts. See 

15 U.S.C. § 1681c(g)(1). Rouse’s argued that these factors differed among the 

putative class members. First, it noted one instance in which an individual 

had used his mother’s credit card to make a purchase, suggesting there would 

be many similar situations. Second, Rouse’s observed that it markets to 

professional chefs and other business customers who shop at its stores. These 

customers are not “consumers” protected under FACTA. Finally, Rouse’s 

showed that numerous customers leave its stores without their receipts. 

The district court relied on these considerations in determining that, 

because the FACTA elements were not subject to class-wide proof, common 

issues did not predominate. The court also concluded that, due to the large 

number of transactions (over 14 million) involved in the suit and the 

availability of attorney’s fees and punitive damages in individual lawsuits, 

class relief was not superior to individual actions.

We have held that class issues do not predominate when “transactionby-transaction” determinations are required. Mims v. Stewart Title Guar. Co., 

590 F.3d 298, 307 (5th Cir. 2009). In Mims, an inquiry into each transaction’s 

reasonableness would have been required. See id. at 306. The individualized 

inquiries in this case might not need to be as detailed, but the general principle

of Mims applies. The plaintiffs contend that post-trial mechanisms, such as

claims forms requiring plaintiffs to attach their credit card statements and 

4

 Case: 14-30550 Document: 00512841052 Page: 4 Date Filed: 11/18/2014
No. 14-30550

store receipts, would eliminate the burdens of a transaction-by-transaction 

analysis. Credit card statements, though, would not demonstrate that the 

cardholder made the purchase. Additionally, determining whether a purchase 

was for consumer or business purposes would often not be possible from the 

card statements, because personal credit cards may be used to make business 

purchases. Because these elements must be proven to recover on a FACTA 

claim, and because Rouse’s demonstrated that these elements differed as to 

the plaintiffs, the district court did not abuse its discretion in determining that 

these issues created predominance and manageability problems. 

As to superiority, we have suggested that class size is a relevant, though 

not dispositive, consideration weighing on superiority. See Castano v. Am. 

Tobacco Co., 84 F.3d 734, 747 (5th Cir. 1996). Additionally, we have recognized 

that the availability of attorney’s fees and punitive damages is a common basis 

for finding non-superiority, as the aggregation of claims is not necessary to 

facilitate suits in such instances. See id. at 748; Boggs v. Alto Trailer Sales, 

Inc., 511 F.2d 114, 117-18 (5th Cir. 1975). In fact, the presence of these forms 

of relief prompted us to hold that “[t]he most compelling rationale for finding 

superiority in a class action — the existence of a negative value suit — is 

missing in this case.” Castano, 84 F.3d at 748 (citations omitted). Although 

the plaintiffs in Castano asserted claims for actual damages, attorney’s fees 

equally facilitate the bringing of claims for statutory damages. Indeed, it is 

difficult to categorize prevailing plaintiffs whose costs are covered and who are 

guaranteed more than nominal damages as negative-value plaintiffs merely 

because they did not assert a larger actual-damages claim. Accordingly, the 

district court did not abuse its discretion by relying on these factors to find that 

superiority was lacking.

5

 Case: 14-30550 Document: 00512841052 Page: 5 Date Filed: 11/18/2014
No. 14-30550

Critically important here is the broad discretion enjoyed by district 

courts regarding certification. That discretion may lead to disparate results. 

In fact, the parties’ briefs make clear that district courts have both allowed and 

refused certification of classes in the FACTA context.2 Nevertheless, we concur 

with the Tenth Circuit’s conclusion that “inconsistent results” regarding 

certification are “no insurmountable objection” and must be permitted “until, 

if ever, some more acceptable and general solution by amendments to the Rules 

or clarification by statute emerges.” Wilcox v. Commerce Bank of Kan., 474 

F.2d 336, 347 (10th Cir. 1973) (discussing certification in the context of the 

Truth in Lending Act).

The district court did not abuse its discretion by denying certification on 

the basis of predominance and superiority. 

AFFIRMED.

2 Compare Shurland v. Bacci Café & Pizzeria on Ogden, Inc., 271 F.R.D. 139, 148 

(N.D. Ill. 2010) (certifying class); Bush v. Calloway Consol. Gp. River City, Inc., No. 3:10-cv841-J-37MCR, 2012 WL 1016871, at *15 (M.D. Fla. Mar. 26, 2012) (same); Armes v. Sogro, 

Inc., No. 08-C-0244, 2011 WL 1197537, at *8 (E.D. Wis. Mar. 29, 2011) (same); Rogers v. 

Khatra Petro, Inc., No. 2:08-CV-294, 2010 WL 3894100, at *6 (N.D. Ind. Sept. 29, 2010) 

(same); Tchoboian v. Parking Concepts, Inc., No. SACV 09-422 JVS (ANx), 2009 WL 2169883, 

at *10 (C.D. Cal. Jul. 16, 2009) (same) with Rowden v. Pac. Parking Sys., Inc., 282 F.R.D. 

581, 588 (C.D. Cal. 2012) (denying certification); Friedman-Katz v. Lindt & Sprungli, Inc., 

270 F.R.D. 150, 161 (S.D.N.Y. 2010) (same); Grimes v. Rave Motion Pics., 264 F.R.D. 659, 

669-70 (N.D. Ala. 2010) (same); Hammer v. JP’s Sw. Foods, L.L.C., 267 F.R.D. 284, 290-91 

(W.D Mo. 2010) (same); Leysoto v. Mama Mia I, Inc., 255 F.R.D. 693, 699 (S.D. Fla. 2009) 

(same); Pezl v. Amore Mio, Inc., 259 F.R.D. 344, 349 (N.D. Ill. 2009) (same); Gist v. Pilot 

Travel Ctrs., No. 5:08-293-KKC, 2013 WL 4068788, at *9 (E.D. Ky. Aug. 12, 2013) (same).

6

 

 Case: 14-30550 Document: 00512841052 Page: 6 Date Filed: 11/18/2014