UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-1632

PATRICK STILLMOCK; JEANNE STILLMOCK; JENNY BARNSTEIN; LEONID 

OPACIC, individually and on behalf of a class of all those 

similarly situated,

Plaintiffs - Appellants,

v.

WEIS MARKETS, INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Marvin J. Garbis, Senior District 

Judge. (1:07-cv-01342-MJG)

Argued: March 23, 2010 Decided: July 1, 2010

Before TRAXLER, Chief Judge, WILKINSON, Circuit Judge, and 

HAMILTON, Senior Circuit Judge.

Vacated and remanded by unpublished opinion. Senior Judge 

Hamilton wrote the opinion, in which Chief Judge Traxler joined. 

Judge Wilkinson wrote a separate opinion concurring specially.

ARGUED: Martin Eugene Wolf, QUINN, GORDON & WOLF, CHTD, Towson, 

Maryland, for Appellants. Charles Mikell Hart, DUANE MORRIS, 

LLP, Cherry Hill, New Jersey, for Appellee. ON BRIEF: Richard 

S. Gordon, Benjamin H. Carney, QUINN, GORDON & WOLF, CHTD, 

Towson, Maryland; Cory L. Zajdel, Z LAW, LLC, Towson, Maryland; 

Katherine B. Bornstein, BARROWAY, TOPAZ, KESSLER, MELTZER & 

CHECK, Radnor, Pennsylvania; David A. Searles, DONOVAN SEARLES, 
- 2 -

LLC, Philadelphia, Pennsylvania, for Appellants. Dana B. 

Klinges, Robert M. Palumbos, DUANE MORRIS, LLP, Philadelphia, 

Pennsylvania, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
- 3 -

HAMILTON, Senior Circuit Judge:

In an effort to curb identity theft, Congress enacted the 

Fair and Accurate Credit Transactions Act of 2003 (FACTA), 

thereby amending the Fair Credit Reporting Act (FCRA), 15 U.S.C. 

§§ 1681 - 1681x, to provide that “no person that accepts credit 

cards or debit cards for the transaction of business shall 

[electronically] print more than the last 5 digits of the card 

number . . . upon any receipt provided to the cardholder at the 

point of the sale or transaction.” 15 U.S.C. § 1681c(g)(1). 

This statutory provision is commonly known as FACTA’s truncation 

requirement. “Any person who willfully fails to comply with” 

FACTA’s truncation requirement “with respect to any consumer is 

liable to that consumer in an amount equal to the sum of . . . 

any actual damages sustained by the consumer as a result of the 

failure or [statutory] damages of not less than $100 and not 

more than $1,000,” id. § 1681n(a)(1)(A), plus “such amount of 

punitive damages as the court may allow,” id. § 1681n(a)(2), 

and, “in the case of any successful action to enforce any 

liability under this section, the costs of the action together 

with reasonable attorney’s fees as determined by the court,” id.

§ 1681n(a)(3).1

 1 FCRA also imposes liability for negligent violations of 

FACTA’s truncation requirement, 15 U.S.C. § 1681o(a), but such 

provision is not at issue in the present appeal.
- 4 -

In this interlocutory appeal, plaintiff-appellants Patrick 

Stillmock, Jeanne Stillmock, Jenny Barnstein, and Leonid Opacic 

(collectively Plaintiffs) challenge the district court’s denial 

of their motion for class action certification on behalf of 

themselves and all other customers of retail stores owned and 

operated by Weis Markets, Inc. (Weis Markets), which customers 

received credit card and debit card receipts printed in 

violation of FACTA’s truncation requirement.2

 The putative class 

expressly excluded customers of Weis Markets’ stores who 

suffered actual damages due to identity theft and any persons 

who had ever been executives of Weis Markets. For reasons that 

follow, we vacate the district court’s denial of Plaintiffs’ 

motion for class certification and remand for further 

proceedings.3

 2 Originally, Patrick Stillmock and Jeanne Stillmock filed 

their own separate action seeking class action certification, 

Jenny Barnstein filed her own seeking the same, as well did 

Leonid Opacic. The district court subsequently dismissed the 

actions filed by Jenny Barnstein and Leonid Opacic and added 

them as plaintiffs in the action filed by the Stillmocks. 

Stillmock v. Weis Markets, Inc., 2009 WL 595642 *1 (D. Md. March 

5, 2009).

3 On June 3, 2009, we granted Plaintiffs’ petition for 

permission to file this interlocutory appeal.
- 5 -

I.

Federal Rule of Civil Procedure 23 “states that ‘[a] class 

action may be maintained’ if two conditions are met: The suit 

must satisfy the criteria set forth in subdivision (a) (i.e.,

numerousity, commonality, typicality, and adequacy of 

representation), and it also must fit into one of the three 

categories described in subdivision (b).” Shady Grove 

Orthopedic Assocs., P.A. v. Allstate Ins. Co.

The matters pertinent to these findings include: 

, 130 S. Ct. 1431, 

1437 (2010) (quoting Fed. R. Civ. P. 23). The only category 

described in subdivision (b) at issue in the present appeal is 

subdivision (b)(3), which is satisfied if “the court finds that 

the questions of law or fact common to class members predominate 

over any questions affecting only individual members, and that a 

class action is superior to other available methods for fairly 

and efficiently adjudicating the controversy.” Fed. R. Civ. P. 

23(b)(3). The same subdivision further provides:

(A) the class members’ interests in individually 

controlling the prosecution or defense of separate 

actions;

(B) the extent and nature of any litigation 

concerning the controversy already begun by or against 

class members;

(C) the desirability or undesirability of 

concentrating the litigation of the claims in the 

particular forum; and

(D) the likely difficulties in managing a class 

action.
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Id. Notably, “‘[c]ertification is only concerned with the 

commonality (not the apparent merit) of the claims and the 

existence of a sufficiently numerous group of persons who may 

assert those claims.’” Brown v. Nucor Corp., 576 F.3d 149, 152 

(4th Cir. 2009) (quoting Lilly v. Harris-Teeter Supermarket, 720 

F.2d 326, 332-33 (4th Cir. 1983)), cert. denied, Nucor Corp. v. 

Brown

“When deciding a motion for class certification, a district 

court does not accept the plaintiff’s allegations in the 

complaint as true; rather, an evidentiary hearing is typically 

held on the certification issue.” 

, 130 S. Ct. 1720 (2010).

Monroe v. City of 

Charlottesville, Va., 579 F.3d 380, 384 (4th Cir. 2009), cert. 

denied

Patrick and Jeanne Stillmock, husband and wife, and Jenny 

Barnstein all reside in Maryland, while Leonid Opacic resides in 

Pennsylvania. Weis Markets is a Pennsylvania corporation, which 

owns and operates grocery stores throughout Maryland, 

Pennsylvania, New Jersey, West Virginia, and New York.

, 130 S. Ct. 1740 (2010). Here, the district court 

accepted materials submitted by the parties in regard to 

Plaintiffs’ motion for class action certification and held an 

evidentiary hearing thereon. Unless otherwise specified, we 

rely upon the factual findings made by the district court in 

ruling on Plaintiffs’ motion for class certification in our 

analysis of the issues on appeal.
- 7 -

Despite being enacted on December 3, 2003, FACTA gave 

merchants who accept credit cards and/or debit cards either one 

or three years to comply, depending upon when the “cash register 

or other machine or device that electronically prints receipts 

for credit card or debit card transactions” was first put to 

use. 15 U.S.C. § 1681c(g)(3). For purposes of considering 

Plaintiffs’ motion for class certification, the district court 

assumed January 1, 2005 constituted FACTA’s effective date with 

respect to Weis Markets. Based upon that assumption, the 

district court found that, starting no later than January 1, 

2005, and continuing until about June 2007, Weis Markets 

provided to its customers, paying either by credit or debit 

card, receipts that had printed thereon a total of ten digits of 

their respective card numbers (the first six and the last four). 

The district court next found that “[w]hile the record does not 

permit a more precise estimate, it appears that at least a 

million of such receipts were provided to a hundred thousand or 

more individual customers.”4

 Stillmock

 4 Weis Markets estimates that it printed 14,578,600 FACTA 

violative receipts between December 4, 2006 and June 7, 2007 

(the date on which Weis Markets adjusted all of its point-ofsale electronic receipt systems to print no more than the last 

four digits of a customer’s credit or debit card number).

, 2009 WL 595642 at *1. 

Notably, FCRA defines the term “consumer” as “an individual.” 

15 U.S.C. § 1681a(c).
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Plaintiffs’ motion for class certification proposed that 

the district court certify a class consisting of the following 

individuals:

“All persons in the United States to whom, or after 

the effective and applicable dates for FACTA 

compliance and continuing through resolution of this 

case, received from Defendant at any of its retail 

locations, an electronically printed receipt at the 

point of sale or transaction which contained more than 

the last five digits of the person’s credit or debit 

card number.”

Stillmock, 2009 WL 595642 at *1. In addition to persons who 

have ever been executives of Weis Markets, “[e]xcluded from the 

[putative] Class are those individuals who have suffered actual 

damages due to identity theft caused by Defendant’s FACTA 

violations.” Id.

The district court first held that Plaintiffs’ purported 

class action satisfied each of Rule 23(a)’s four criteria. 

Notably, Weis Markets does not argue on appeal that the district 

court erred in so holding. However, because the district 

court’s findings with respect to Rule 23(a)’s four criteria 

provide context for our discussion of the Rule 23(b)(3) issues 

on appeal, we take time to set forth such findings at this 

point.

at *2.

The first criterion is satisfied if the putative class is 

“so numerous that joinder of all members is impracticable.” 
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Fed. R. Civ. P. 23(a)(1). With respect to the first criterion, 

the district court found:

All the members of the proposed class--consisting 

of a substantial percentage of those persons who made 

at least one credit or debit card purchase at a Weis 

store during a period alleged to be almost 18 months--

could not practicably be joined as party Plaintiffs 

herein.

Stillmock

The second criterion is satisfied if there are “questions 

of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 

With respect to the second criterion, the district court found:

, 2009 WL 595642 at *2.

There is no doubt that the claims of all the 

putative class members present common questions of 

fact and law regarding Weis’ liability. At the heart 

of each class members’ claims are the undisputed fact 

that Weis failed to comply with Section 1681c(g) and 

the highly disputed question of whether Weis’ failure 

to comply was willful. While there may be some issues 

not common to all putative class members, for example 

whether a particular claimant was a “consumer” under 

the statute, there is no doubt that there are 

questions of law and fact pertinent to liability that 

are common to . . . all members of the proposed class.

Stillmock, 2009 WL 595642 at *2 (footnotes omitted). Notably, 

the Supreme Court has interpreted the phrase “willfully fails to 

comply,” in the preamble sentence of 15 U.S.C. § 1681n(a), as 

reaching not only knowing violations of FCRA, but reckless ones 

as well, Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007), 

and has defined a reckless violation for purposes of § 1681n(a) 

as one “entailing an unjustifiably high risk of harm that is 
- 10 -

either known or so obvious that it should be known,” id.

The third criterion is satisfied if “the claims or defenses 

of the representative parties are typical of the claims or 

defenses of the class . . . .” Fed. R. Civ. P. 23(a)(3). In 

finding this criterion satisfied, the district court credited 

Plaintiffs’ claims that each is a typical customer of Weis 

Markets and relied upon the fact that Weis Markets agreed that 

its pertinent intent was the same with respect to all receipts 

that it had issued in violation of FACTA’s truncation 

requirement.

at 68 

(internal quotation marks omitted). 

The fourth criterion is satisfied if “the representative 

parties will fairly and adequately protect the interests of the 

class.” Fed. R. Civ. P. 23(a)(4). With respect to this fourth 

criterion, the district court found Plaintiffs and their counsel 

would fairly and adequately protect the interests of the 

putative class members, which members all have the same interest 

in establishing willfulness on the part of Weis Markets.

Turning to the district court’s Rule 23(b)(3) analysis, the 

district court first determined that although there would be an 

individualized question as to each putative class member’s 

status as a consumer, in view of the simplicity of the consumer 

status questions, it would assume the common question of Weis 

Markets’ willfulness predominated over the individualized 
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questions of consumer status. 15 U.S.C. § 1681n(a)(1)(A). The 

district court next assumed “that Plaintiffs could propose 

methods satisfactorily to solve with the myriad of practical 

problems created by certifying the class that they seek.” 

Stillmock, 2009 WL 595642 at *4. In this regard, the district 

court “assume[d] that the requested class would include only 

‘consumers’ who received violative receipts and would not have, 

or at least would agree not to claim, more than $100 in actual 

damages.” 

Interpreting FCRA’s provision concerning a defendant’s 

civil liability, in general, for willful noncompliance with a 

FCRA requirement,

Id.

5 see

 5 Remember that FACTA’s truncation requirement is one of 

FCRA’s requirements.

15 U.S.C. § 1681n(a)(1)(A), the district 

court next rejected Plaintiffs’ contention that a jury could 

decide that every class member should receive the same amount of 

statutory damages by considering only matters pertaining to Weis 

Markets and common to each and every class member. According to 

the district court, “a jury could properly consider, in deciding 

the discretionary amount between $100 and $1,000 to award a 

given class member, the number of times that [a] class member 

was issued a non-compliant slip,” reasoning that a one-time 

customer who received a single noncompliant receipt should 
- 12 -

receive a lesser amount of statutory damages than a repetitive 

customer who received dozens of noncompliant receipts over an 

extended period of time. Stillmock

The district court next held that “there would be a slight 

predominance of common questions” of liability over 

individualized questions of liability, given the relative 

complexity of the willfulness issue and the relative simplicity 

of the consumer status issue with respect to each putative class 

member.

, 2009 WL 595642 at *4. The 

district court applied the same reasoning in concluding that 

individualized factors could come into play in the jury’s award 

of punitive damages per class member. 

6

 Stillmock

Nonetheless, the district court denied class certification 

on two grounds. First, the district court denied class 

certification on the ground that determining the quantum of 

damages with respect to each class member would be too 

individualized for class-wide treatment under Rule 23(b)(3). 

Second, the district court denied class certification on the 

ground that a class action as requested by Plaintiffs “would not 

be superior and, indeed, would be inferior to having the 

, 2009 WL 595642 at *5.

 6 In order to invoke consumer status under FCRA, each 

putative class member would merely need to show that he or she 

was an “individual,” 15 U.S.C. § 1681a(c), as opposed to a 

partnership, corporation, etc., id., § 1681a(b). 
- 13 -

Plaintiffs herein proceed on their individual claims and, if

they prevail, having them obtain whatever statutory and punitive 

damages might be awarded together with their costs, including 

reasonable legal fees.” Stillmock

Should these Plaintiffs prevail on their willfulness 

claim, other similarly situated Weis customers would 

have the opportunity to file their own actions -- for 

many, if not most, in a court that may be more 

convenient for them than the District of Maryland. 

Moreover, it appears likely that Weis would be 

collaterally estopped from denying willfulness. 

, 2009 WL 595642 at *6. In 

this regard, the district court continued:

See

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 

(1979).

Id. This appeal followed.

II.

On appeal, Plaintiffs challenge the district court’s denial 

of their motion for class action certification. We review a 

district court’s denial of class action certification for abuse 

of discretion, “recognizing, of course, that this discretion 

must be exercised within the framework of Rule 23.” Gunnells v. 

Healthplan Servs., Inc.

A. Rule 23(b)(3)’s Commonality-Predominance Requirement. 

, 348 F.3d 417, 424 (4th Cir. 2003)

(internal quotation marks omitted).

Plaintiffs first contend that a consumer is entitled to 

statutory damages pursuant to 15 U.S.C. § 1681n(a)(1)(A) on a 

per violation basis, as opposed to a per consumer basis as 
- 14 -

implicitly held by the district court, and therefore, the 

district court’s concern that the quantum of statutory damages 

to be awarded with respect to each class member would be too 

individualized for class-wide treatment was unfounded. While we 

agree with the district court’s implicit holding that statutory 

damages under § 1681n(a)(1)(A) are to be awarded on a per 

consumer basis, we also agree with Plaintiffs that the district 

court erred in concluding that individual issues of damages 

would predominate over issues common to the class.

Critically, Rule 23(b)(3)’s commonality-predominance test 

is qualitative rather than quantitative. Gunnells, 348 F.3d at 

429. Thus, while courts have properly denied class 

certification where individual damages issues are especially 

complex or burdensome, see, e.g., Pastor v. State Farm Mut. 

Auto. Ins. Co., 487 F.3d 1042, 1047 (7th Cir. 2007), where, as 

here, the qualitatively overarching issue by far is the 

liability issue of the defendant’s willfulness, and the 

purported class members were exposed to the same risk of harm 

every time the defendant violated the statute in the identical 

manner, the individual statutory damages issues are insufficient 

to defeat class certification under Rule 23(b)(3). See Murray 

v. GMAC Mortg. Corp., 434 F.3d 948, 953 (7th Cir. 2006) 

(“Refusing to certify a class because the plaintiff decides not 

to make the sort of person-specific arguments that render class 
- 15 -

treatment infeasible would throw away the benefits of 

consolidated treatment. Unless a district court finds that 

personal injuries are large in relation to statutory damages, a 

representative plaintiff must be allowed to forego claims for 

compensatory damages in order to achieve class certification.”); 

Smilow v. Southwestern Bell Mobile Systems, Inc., 323 F.3d 32, 

40 (1st Cir. 2003) (“The individuation of damages in consumer 

class actions is rarely determinative under Rule 23(b)(3). 

Where . . . common questions predominate regarding liability, 

then courts generally find the predominance requirement to be 

satisfied even if individual damages issues remain.”). Here, 

the putative class members were exposed to the identical risk of 

identity theft in the identical manner by the repeated identical 

conduct of the same defendant, and none suffered actual damages 

from identity theft. Under these circumstances, it strains 

credulity to conclude that the individual damages issues 

presented by the purported class which Plaintiffs seek to 

certify would be anything other than simple and straightforward. 

Pragmatically, the only substantive difference between putative 

class members for purposes of affixing the statutory damages 

figure within the statutory damages range of $100 to $1,000 or 

in awarding punitive damages is the number of receipts received 

by a single class member during the approximately eighteen 

months at issue. And indeed, this difference does not 
- 16 -

complicate matters very much at all given that the class can be 

broken down into subcategories based upon the number of 

violating receipts received per putative class member. In sum, 

we hold that common questions of law and fact predominate over 

the individual issues presented by Plaintiffs’ purported class 

action, thus satisfying Rule 23(b)(3)’s commonality-predominance 

test. See Klay v. Humana, Inc.

B. Rule 23(b)(3)’s Superiority Requirement. 

, 382 F.3d 1241, 1255 (11th Cir. 

2004) (“Common issues of fact and law predominate if they have a 

direct impact on every class member’s effort to establish 

liability and on every class member’s entitlement to injunctive 

and monetary relief.”) (internal quotation marks and alteration 

marks omitted).

We now turn to consider the district court’s ruling that 

Plaintiffs’ purported class action failed Rule 23(b)(3)’s second 

requirement, i.e., that the purported class action be superior 

to other available methods for the fair and efficient 

adjudication of the controversy. Plaintiffs challenge the 

district court’s superiority ruling on the basis that the 

district court impermissibly looked outside of Rule 23 to find 

the test-case method more to its liking, though not actually 

superior to the class action. Under the test-case method, if 

Plaintiffs win their individual claims against Weis Markets in a 

non-class action, other similarly situated Weis Markets 
- 17 -

customers would have the opportunity to file their own 

individual actions against Weis Markets and assert offensive 

collateral estoppel on the issues of liability and willfulness.

We agree with Plaintiffs that the district court erred in 

its superiority-of-method determination. As the well-respected 

treatise Federal Practice and Procedure

Although a determination of superiority necessarily 

depends greatly on the circumstances surrounding each 

case, some generalizations can be made about the kinds 

of factors the courts will consider in evaluating this 

portion of Rule 23(b)(3).

explains the relevant 

considerations:

The rule requires the court to find that the 

objectives of the class-action procedure really will 

be achieved in the particular case. In determining 

whether the answer to this inquiry is to be 

affirmative, the court initially must consider what 

other procedures, if any, exist for disposing of the 

dispute before it. The court must compare the 

possible alternatives to determine whether Rule 23 is 

sufficiently effective to justify the expenditure of 

the judicial time and energy that is necessary to 

adjudicate a class action and to assume the risk of 

prejudice to the rights of those who are not directly 

before the court.

7AA Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,

Federal Practice and Procedure

Here, the district court held that a test case by 

Plaintiffs and then future plaintiffs asserting offensive 

collateral estoppel with respect to liability issues was a 

superior litigation method to the class action method proposed 

§ 1779 (3d ed. 2005). 
- 18 -

by Plaintiffs. The totality of the district court’s analysis on 

this issue is as follows:

[T]he Court concludes that [a class action as 

requested by Plaintiffs] would not be superior and, 

indeed, would be inferior to having the Plaintiffs 

herein proceed on their individual claims and, if they 

prevail, having them obtain whatever statutory and 

punitive damages might be awarded together with their 

costs, including reasonable legal fees. Should these 

Plaintiffs prevail on their willfulness claim, other 

similarly situated Weis customers would have the 

opportunity to file their own actions -- for many, if 

not most, in a court that may be more convenient for 

them than the District of Maryland. Moreover, it 

appears likely that Weis would be collaterally 

estopped from denying willfulness.

Stillmock

Other than the inconvenience of the forum consideration, 

the district court’s analysis fails to explain why it believes 

the class action method is inferior to the 

test-case-with-future-individual-actions method. Apparently 

sensing the shallowness of the district court’s analysis, Weis 

Markets argues that the availability of attorney’s fees and 

punitive damages under FCRA makes individual lawsuits feasible.

, 2009 WL 595642 at *6.

Weis Markets’ argument is without merit. First, the low 

amount of statutory damages available means no big punitive 

damages award on the horizon, thus making an individual action 

unattractive from a plaintiff’s perspective. Second, there is 

no reasoned basis to conclude that the fact that an individual 

plaintiff can recover attorney’s fees in addition to statutory 
- 19 -

damages of up to $1,000 will result in enforcement of FCRA by 

individual actions of a scale comparable to the potential 

enforcement by way of class action. See Bertulli v. Independent 

Ass’n of Continental Pilots, 242 F.3d 290, 299 (5th Cir. 2001) 

(Rule 23(b)(3)’s superiority requirement was met by class of 

pilots bringing action under Labor-Management Reporting and 

Disclosure Act (LMRDA) and Railway Labor Act alleging they 

suffered loss of seniority as result of restoration of seniority 

of 11 strike participants; any relief received by vast majority 

of class members would be primarily injunctive, feasibility of 

individual actions due to availability of attorney’s fees under 

LMRDA did not undercut conclusion that class device was 

superior, and, although some damages calculations might be 

burdensome, economies weighed in favor of class treatment); 

Tchoboian v. Parking Concepts, Inc.

Other factors also cut definitively in favor of concluding 

that the class action which Plaintiffs propose is superior to 

individual cases. First, there is no indication in this case 

, 2009 WL 2169883 at *9 (C.D. 

Cal. July 16, 2009) (“The Court is not convinced that the fact 

that an individual plaintiff can recover attorney’s fees in 

addition to statutory damages of up to $1,000 will result in 

enforcement of the FCRA by individual actions of a scale 

comparable to the potential enforcement by way of class 

action.”).
- 20 -

that class members would have a strong interest in individual 

litigation. Second, class certification promotes consistency of 

results, giving Weis Markets the benefit of finality and repose. 

Gunnells, 348 F.3d at 429 (in contrast to class action 

proceeding, individual actions make a defendant vulnerable to 

the asymmetry of collateral estoppel, thus, class certification 

promotes consistency of results, giving defendant benefit of 

finality and repose).

III.

In sum, we hold the grounds upon which the district court 

relied to deny class action certification in this case are 

untenable, and therefore, the district court abused its 

discretion in denying class certification on such grounds. See

Murray, 434 F.3d at 954 (reversing denial of class certification 

in action for statutory damages under FCRA). Accordingly, we 

vacate and remand for further proceedings. Finally, while we 

express no opinion regarding Weis Markets’ additional arguments 

against class certification which the district court expressly 

did not address below, see Stillmock, 2009 WL 595642 at *6, we 

instruct the district court to consider them on remand in the 
- 21 -

first instance.7 Singleton v. Wulff, 428 U.S. 106, 120 (1976) 

(“It is the general rule, of course, that a federal appellate 

court does not consider an issue not passed upon below.”).

 7 We also leave it to the district court’s discretion 

whether to revisit Weis Markets’ argument that class treatment 

would not be manageable because Plaintiffs cannot send adequate 

notice to the purported class members. The district court 

appeared to assume without deciding that Plaintiffs could send 

adequate notice to purported class members. We express no 

opinion on this issue. 

VACATED AND REMANDED
- 22 -

WILKINSON, Circuit Judge, concurring specially:

There is much in the court’s opinion with which I agree. I 

am pleased that the court adopts a per-consumer rather than a 

per-receipt interpretation of 15 U.S.C. § 1681n(a).* 

I worry that the exponential expansion of statutory damages 

through the aggressive use of the class action device is a real 

Additionally, I agree with the court that the district court on 

remand should consider other factors that bear upon the issue of 

class certification. Specifically, neither this court nor the 

district court has yet addressed the real possibility that the 

suggested class could bankrupt an entire chain of supermarkets, 

and the district court retains wide discretion in deciding 

whether to certify a class in light of that problem. 

 * Section 1681n provides that any person who willfully 

violates the statute “with respect to any consumer is liable to 

that consumer” for, among other things, actual or statutory 

damages. 15 U.S.C. § 1681n(a) (emphasis added). The statute’s 

emphasis on the consumer reflects a per-consumer rather than a 

per-receipt approach to damages. This interpretation draws 

additional support from Safeco Insurance Company of America v. 

Burr, 551 U.S. 47 (2007), where the Supreme Court read the 

statute to provide that “the consumer may have actual damages, 

or statutory damages . . ., and even punitive damages.” Id. at 

53 (emphasis added). Moreover, were we to adopt a per-receipt 

approach, FACTA would be transformed from a shield for 

protecting consumer privacy into a sword for dismembering 

businesses. Opportunistic cardholders could intentionally make 

hundreds, if not thousands, of purchases, hoard their receipts, 

and stream into federal court to collect statutory damages on 

each one. The potential for such abuse counsels against the 

plaintiffs’ preferred per-receipt interpretation.
- 23 -

jobs killer that Congress has not sanctioned. To certify in 

cases where no plaintiff has suffered any actual harm from 

identity theft and where innocent employees may suffer the 

catastrophic fallout could not have been Congress’s intent. 

Indeed, the relatively modest range of statutory damages chosen 

by Congress suggests that bankrupting entire businesses over 

somewhat technical violations was not among Congress’s 

objectives.

It is undeniable that Congress passed FACTA to protect 

consumers from the real threat of identity theft. It is clear 

as well that Congress did not intend willful repeat violators of 

FACTA to emerge from litigation with nothing more than a wrist 

slap. It is understandable too that this court and many others 

have struggled with the interaction of FACTA and Federal Rule of 

Civil Procedure 23. I see nothing in the statute, however, that 

mandates class action treatment of FACTA claims or precludes a 

district court from considering the prospect of annihilative 

liability in the certification calculus.

I.

Certainly nothing in 15 U.S.C. § 1681n(a)(1) would lead us 

to believe that Congress intended the modest range of statutory 

damages to be transformed into corporate death by a thousand 

cuts through Rule 23. “A claim of this sort creates a tension 
- 24 -

between the statutory provisions for minimum damages and the 

Rule 23 provisions for class actions that probably was not 

within the contemplation of those who promulgated either the 

statute or the rule.” Parker v. Time Warner Entertainment Co., 

331 F.3d 13, 26 (2d Cir. 2003) (Newman, J., concurring). Simply 

put, the present case is a perfect storm in which two 

independent provisions combine to create commercial wreckage far 

greater than either could alone. As Judge Newman explained in a 

similar situation involving statutory damages for cable 

subscribers, “I do not believe that in specifying a $1,000 

minimum payment for . . . violations, Congress intended to 

expose [violators] to liability for billions of dollars.” Id.

A.

at 27. The same statement applies with equal force to FACTA’s 

$100 to $1,000 statutory damages range.

The statute itself affords reason to believe that Congress 

did not insist on adopting the class mechanism at all costs. 

Regardless of whether common liability issues in this case 

predominate over individualized damage determinations, it 

remains true that Congress did provide for individualized damage 

determinations in FACTA. This fact cuts against the argument 

that Congress wished to compel consolidated suits through class 

certification.
- 25 -

There are several indications in FACTA that damages are 

individualized. First, statutory damages are not fixed; 

instead, Congress provided that they may range anywhere from 

$100 to $1,000. 15 U.S.C. § 1681n(a)(1)(A). The statute does 

not specify what factors a jury should consider when selecting a 

number within this range. But because statutory damages are

intended to address harms that are small or difficult to 

quantify, evidence about particular class members is highly 

relevant to a jury charged with this task. Had Congress adopted 

a set figure for statutory damages rather than a range dependent 

on variable evidence, the case for class certification would 

have been fortified.

Second, the compensatory nature of FACTA statutory damages 

suggests class certification is not congressionally mandated. 

The most powerful indication that Congress intended statutory 

damages to be compensatory comes from the structure of FACTA’s 

remedial provisions. Notably, Congress provided that a consumer 

subject to a willful violation of the statute could recover 

either actual or statutory damages, but not both. 15 U.S.C. 

§ 1681n(a)(1)(A). The fact that statutory damages are available 

in lieu of actual damages suggests that they too serve to 

compensate individual consumers for their injuries. See In re 

Trans Union Corp. Privacy Litig., 211 F.R.D. 328, 342 (N.D. Ill. 

2002) (“[Section] 1681n(a)(1)(A) clearly and unambiguously 
- 26 -

allows for actual or statutory damages as the measure of 

compensatory

It is not difficult to discern why Congress would allow 

consumers to select statutory damages rather than actual damages 

as a measure of compensation. While some violations of FACTA

will lead to easily quantifiable harms, other violations may 

lead to less tangible ones, such as a loss of privacy, 

heightened risk and anxiety over identity theft, or increased 

time spent monitoring one’s financial security. In order to 

help a jury place a value on these intangible harms, FACTA 

provides for statutory damages between $100 and $1,000. It is 

still up to a jury, however, to select a figure within this

range, and the individualized nature of this determination is 

strong evidence that class treatment may not be the required 

course under FACTA.

damages.”) (second emphasis added). Congress also 

provided for punitive damages in addition to any actual or 

statutory damages. 15 U.S.C. § 1681n(a)(2). That Congress did 

so highlights the fact that statutory damages serve a 

compensatory, rather than punitive, function in FACTA’s remedial 

scheme.

B.

That the court notes (correctly, in my view) that statutory 

damages are available on a per-consumer rather than per-receipt 

basis further underscores the point that Congress did not demand 
- 27 -

class certification in FACTA. The per-consumer perspective 

places the focus on the characteristics of individual class 

members, rather than on the defendant’s conduct that is common 

to the entire class. To protect “the right of the defendant to 

present facts or raise defenses that are particular to 

individual class members,” Thorn v. Jefferson-Pilot Life Ins. 

Co., 445 F.3d 311, 318 (4th Cir. 2006), businesses deserve at 

least the opportunity to argue that certain individuals should 

receive statutory damages at the low end of the range. Weis 

Markets, for example, might do so by putting on evidence that 

some class members were issued very few noncompliant receipts, 

rarely if ever checked their credit reports, or experienced no 

heightened apprehension of identity theft. While the class here 

excludes those who suffered actual damages due to identity 

theft, it surely includes members who experienced varying levels 

of less quantifiable harms. Assessing these harms clearly “does 

not lend itself to . . . a mechanical calculation.” Windham v. 

Am. Brands, Inc., 565 F.2d 59, 68 (4th Cir. 1977) (en banc). 

All of these facts suggest that Congress did not contemplate a 

class action as the exclusive route for FACTA suits.
- 28 -

II.

Congress acts, of course, against the backdrop of the 

Federal Rules, and we must assume it knows not only of Rule 23’s 

utility, but also that the Rule is not an end unto itself. It 

is a case management device, and a flexible one at that. The 

Rule is the ultimate expression of flexibility, providing a nonexclusive list of broad factors for courts to consider. See

Certifying a class action that would impose annihilative 

damages where there has been no actual harm from identity theft 

could raise serious constitutional concerns, as plaintiffs 

themselves admit. See Reply Br. at 2 n.2. Other courts have 

noted that “the potential for a devastatingly large damages 

award, out of all reasonable proportion to the actual harm 

suffered by members of the plaintiff class, may raise due 

process issues.” 

Fed. R. Civ. P. 23(b)(3)(A)-(D). Notably, its flexible nature 

indicates that district courts have broad discretion to consider 

factors that may bear on the desirability of proceeding down the 

road of class treatment.

Parker, 331 F.3d at 22. See also Spikings v. 

Cost Plus, Inc., No. CV 06-8125-JFW (AJWx), 2007 U.S. Dist. 

LEXIS 44214, at *9, 13 (C.D. Cal. May 25, 2007) (same). Indeed, 

this principle has some salience in the punitive damages 

context, where the Supreme Court has noted that “[t]he Due 

Process Clause of the Fourteenth Amendment prohibits the 
- 29 -

imposition of grossly excessive or arbitrary punishments on a 

tortfeasor.” State Farm Mut. Auto. Ins. Co. v. Campbell

Rather than considering annihilative damages as they bear 

on due process, however, it is preferable for a district court 

to address them in the context of Rule 23(b)(3)’s superiority 

requirement. Doing so gives the district court discretion to 

avoid a serious constitutional problem in the best tradition of 

the Brandeis concurrence in 

, 538 

U.S. 408, 416 (2003). 

Ashwander v. Tennessee Valley 

Authority

It is fair to observe that a primary focus of Rule 23 is 

upon procedural efficiencies, but that is not its sole concern. 

A district court has discretion to consider other factors as 

well. “Within that discretion . . . is the attaching of 

determinative weight to the reality that if class action 

treatment were applied in this case where the complaint contains 

no indication of any actual damages in substantial or provable 

amount, this aggregated relief would be oppressive in 

consequence and difficult to justify.” 

, 297 U.S. 288 (1936), and permits a district court to 

declare that a device is not superior when a plaintiff class 

whose members suffered no identity theft of any sort still 

threatens to wipe an entire company off the map.

Wilcox v. Commerce Bank 

of Kansas City, 474 F.2d 336, 347 (10th Cir. 1973). See also

London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1255 n.5 (11th 
- 30 -

Cir. 2003) (class action may not be superior where “the 

defendants’ potential liability would be enormous and completely 

out of proportion to any harm suffered by the plaintiff.”); 

Kline v. Coldwell, Banker & Co.

Finally, the flexibility of Rule 23 is also reflected in 

the generous abuse of discretion standard under which district 

court certification decisions are reviewed. As we have 

repeatedly explained, “[a] district court has broad discretion 

in deciding whether to certify a class.” 

, 508 F.2d 226, 235 (9th Cir. 

1974) (same).

Thorn, 445 F.3d at 317

(quoting Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th 

Cir. 2001)). Certification decisions “will be reversed only 

upon a showing of abuse of that discretion.” Boley v. Brown, 10 

F.3d 218, 223 (4th Cir. 1993); McClain v. South Carolina Nat’l 

Bank, 105 F.3d 898, 902 (4th Cir. 1997) (same). We afford this 

discretion to district courts for good reason. Class 

certification is “a practical problem, and primarily a factual 

one with which a district court generally has a greater 

familiarity and expertise than does a court of appeals.” 

Windham, 565 F.2d at 65 (citation omitted). Given this, I would 

urge caution in requiring district courts to adopt a procedural 

device that cuts against the grain of practical justice as the 

trial courts conceive it.
- 31 -

III.

A.

In light of the broad flexibility embodied in Rule 23, I am 

pleased that the court instructs the district court on remand to 

consider alternative reasons that bear upon class certification. 

See Maj. Op. at 20-21. Specifically, the district court 

previously reserved ruling on “the contention that the 

possibility of ‘annihilating results’ disproportionate to any 

harm renders class certification inappropriate.” Stillmock v. 

Weis Markets, Inc.

The risk of financial ruin as a result of class 

certification is far from illusory. Weis Markets estimates that 

it printed 14,578,600 receipts with improperly truncated account 

numbers between the time FACTA became effective on December 4, 

2006 and the time the company brought its systems into 

compliance on June 7, 2007. Because FACTA establishes statutory 

damages between $100 and $1,000, under plaintiffs’ per-receipt 

approach, Weis Markets would thus be subject to a massive payout 

of between $1.4 and $14 

, 2009 WL 595642, No. MJG-07-1342 at *6 (D. 

Md. March 5, 2009). The court rightly permits the district 

court to undertake that inquiry.

billion

The court’s per-consumer calculation, while less 

astronomical, is no less annihilating to Weis Markets. Both 

plaintiffs and Weis Markets have estimated that “there are 

.
- 32 -

potentially over one million Class members.” Multiplying that 

estimate by the statutory damages range results in total 

liability of between $100 million and $1 billion dollars, 

without even accounting for the possibility of punitive damages, 

attorney’s fees, and costs, 15 U.S.C. § 1681n(a)(2), (a)(3). 

It is no exaggeration to say that a judgment within this 

range would devastate Weis Markets. As counsel for Weis Markets 

put it, “a hundred million dollars sinks my client.” The 

company is traded on the New York Stock Exchange, and its market 

capitalization at current prices is just over $900 million 

dollars. In other words, this case is not just the proverbial 

bet-the-company suit; a class action, if successful, will 

shatter the entire company into hundreds of thousands of $100 to 

$1,000 bits. The plaintiffs here might as well seek to 

distribute every one of Weis Markets’ 26.9 million shares a few 

apiece to each receipt holder.

Nor is the destruction of Weis Markets a loss only to 

shareholders. If plaintiffs are successful, a substantial 

number of people will be left unemployed in one of the toughest 

job markets in generations. Weis Markets currently owns and 

operates one hundred sixty-four retail grocery stores in 

Pennsylvania, Maryland, New York, New Jersey, and West Virginia 

as well as twenty-five pet supply stores. Weis Markets, Inc., 

Annual Report (Form 10-K), at 1 (Mar. 11, 2010). Approximately 
- 33 -

17,600 individuals work for the company in either a full- or 

part-time capacity. Id.

None of this is to condone the actions of Weis Markets. 

Without prejudging the matter of willfulness, there are 

preliminary indications that the company acted very badly. 

There is no dispute that Weis Markets printed over 14 million 

receipts that violated FACTA; the outstanding liability issues 

in this case hinge on whether it did so willfully or merely 

negligently. Moreover, compliance with FACTA did not involve 

untangling a complex regulatory scheme, but merely issuing 

receipts to cardholders revealing no more than the last five 

digits of their card number. Still, it must count for something 

that this class, by definition, consists of individuals who can 

claim only statutory damages. It staggers the imagination to 

believe that Congress intended to impose annihilating damages on 

an entire company and the people who work for it for lapses of a 

somewhat technical nature and in a case where not a single class 

member suffered actual harm due to identity theft.

at 2. It is doubtful that Congress 

intended to cause these thousands of innocent employees to lose 

their jobs and paychecks by bankrupting their employer, in a 

situation where no plaintiff suffered identity theft.

B.

Nor is the problem of annihilating liability by any means 

limited to the present case. District courts across the country 
- 34 -

are struggling with what one court termed a “veritable 

onslaught” of class action litigation under FACTA, subjecting 

companies small and large to extraordinary claims. Palamara v. 

Kings Family Restaurants

On one end of the spectrum, such suits jeopardize “mom and 

pop” stores, such as the local restaurant with a mere $40,000 in 

net assets that last year faced a $4.6 to $46 million FACTA suit 

in which none of the putative class members suffered any actual 

injuries as a result of identity theft. 

, No. 07-317, 2008 WL 1818453, at *3 

(W.D. Pa. Apr. 22, 2008). Ordinarily, a company that violates 

FACTA will do so not once or twice, but instead thousands or 

even millions of times, owing to the fact that it has not 

properly updated its equipment. And because FACTA provides for 

statutory damages of at least $100, such suits almost by 

definition expose companies to liability that is orders of 

magnitude beyond their income or net worth, regardless of the 

size of the corporation. “FACTA class actions threaten 

businesses of every size with devastating classwide liability 

for what may be harmless statutory violations.” 1 McLaughlin on 

Class Actions § 2:38 (6th ed.).

Leysoto v. Mama Mia I, 

Inc., 255 F.R.D. 693, 697-98 (S.D. Fla. 2009). A similar suit 

went a step further, seeking FACTA statutory damages “between 

$3.3 million and $33 million” from a company “whose consolidated 

financial statements . . . show[ed] a net loss of $5.5 million 
- 35 -

and a total negative net worth of $8.1 million.” Price v. Lucky 

Strike Entertainment, Inc.

And small or struggling companies are not the only ones 

threatened by claims far out of proportion to their ability to 

satisfy them. One defendant with net income of just over $68 

million recently faced a putative class action seeking between 

$198 million and $1.98 billion. 

, No. CV 07-960-ODW (MANx), 2007 WL 

4812281 at *5 (C.D. Cal. Aug. 31, 2007) (emphasis added). 

Blanco v. CEC Entm’t Concepts 

L.P., No. CV 07-0559 GPS (JWJx), 2008 WL 239658, at *2 (C.D. 

Cal. Jan. 10, 2008). Other corporations have faced similarly 

astronomical claims relative to their size. See, e.g., Spikings 

v. Cost Plus, Inc., No. CV 06-8125-JFW (AJWx), 2007 U.S. Dist. 

LEXIS 44214, at *12 (C.D. Cal. May 29, 2007) (company with net 

worth of $316 million faced FACTA class seeking $340 million to 

$3.4 billion); Lopez v. KB Toys Retail, Inc.

C.

, No. CV 07-144-JFW 

(CWx), 2007 U.S. Dist. LEXIS 82025, at *14 (C.D. Cal. July 17, 

2007) (even $100 per violation in proposed FACTA class was 600% 

of defendant’s net worth). I suppose it can be assumed that 

shareholders and creditors bear such litigation risks. But 

employees? These liabilities will fall hardest on those who are 

laid off because of them.

In addition to the risk of bankrupting entire companies for 

violations in which no identity theft resulted, there is an 
- 36 -

additional problem with combining statutory damages and class 

certification. Companies may be forced to settle in the face of 

such annihilating liability, even if they have a strong defense. 

In such an event, the substantial costs associated with 

settlement will inevitably be passed on to consumers -- the very 

ones whom Congress sought to protect.

As the Seventh Circuit explained, there is a serious 

concern with forcing these “defendants to stake their companies 

on the outcome of a single jury trial, or be forced by fear of 

the risk of bankruptcy to settle even if they have no legal 

liability.” Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 

1299 (7th Cir. 1995). Indeed, “[t]he risk of facing an all-ornothing verdict presents too high a risk, even when the 

probability of an adverse judgment is low.” Castano v. Am. 

Tobacco Co., 84 F.3d 734, 746 (5th Cir. 1996); see also Coopers 

& Lybrand v. Livesay, 437 U.S. 463, 476 (1978) (same). “[O]nce 

a class is certified, a statutory damages defendant faces a betthe-company proposition and likely will settle rather than risk 

shareholder reaction to theoretical billions in exposure even if 

the company believes the claim lacks merit.” Sheila B. 

Scheuerman, Due Process Forgotten: The Problem of Statutory 

Damages and Class Actions, 74 Mo. L. Rev. 103, 104 (2009). At 

least the plaintiffs in Rhone-Poulenc and Castano alleged 

substantial actual damages; here we face the risk of forcing a 
- 37 -

defendant to settle in the face of billions in liability for 

actions that resulted in not a single instance of identity 

theft.

Nor does the possibility of appellate review eliminate the 

problem of uneconomic settlement. “The reason that an appeal 

will come too late to provide effective relief for these 

defendants is the sheer magnitude of the risk to which the class 

action, in contrast to the individual actions pending or likely, 

exposes them.” Rhone-Poulenc, 51 F.3d at 1297 (emphasis in 

original). Weis Markets and similar companies could hardly be 

blamed if they took a safe route and settled in such 

circumstances. “If they settle, the class certification -- the 

ruling that will have forced them to settle -- will never be 

reviewed.” Id. at 1298. To effectively allow certification to 

deprive a party of a defense cannot be what the adversary 

process is about.

IV.

Is there a solution -- one that gives the statute its 

proper meaning and effect without visiting consequences far in 

excess of what Congress intended? Judge Newman, when addressing 

a similar statute, has suggested two solutions to the problem. 

One is to award class members statutory damages below the amount 

authorized by Congress. Parker, 331 F.3d at 27 (Newman, J. 
- 38 -

concurring). But as he acknowledges, that suggestion suffers a 

prohibitive drawback because it “cannot be reconciled with the 

terms of the statute.” Id. His second suggestion of allowing a 

district judge to determine “that a class will be certified only 

up to some reasonable aggregate amount of [statutory] damages,” 

id.

The question, then, is whether the denial of class action 

treatment will allow proven violators of a statute to escape 

largely untouched. I do not believe that we are faced with a 

choice of class certification and its potentially lethal 

consequences or the denial of such certification and the 

prospect of impunity for the non-compliant.

at 28, fares little better because unlike similar exercises 

of judicial discretion, remittitur for example, the judiciary 

here would simply be adding a capping provision to a federal

statute which Congress in its wisdom did not see fit to include. 

Congress of course remains free to adopt such a cap, as it has 

done for instance in limiting class action recoveries under the 

Truth In Lending Act to the lesser of $500,000 or 1 percent of a 

creditor’s net worth, 15 U.S.C. § 1640(a)(2)(B), but it has not 

done so here.

There is no shortage of incentives for consumers to bring 

individual suits under FACTA. The act provides plaintiffs with 

both costs and reasonable attorney’s fees “in the case of any

successful action” establishing willful or negligent violations. 
- 39 -

15 U.S.C. §§ 1681n(a)(3), 1681o(a)(2) (emphasis added). These 

suits are, therefore, “essentially costless” to winning 

plaintiffs. Anderson v. Capital One Bank, 224 F.R.D. 444, 453 

(W.D. Wis. 2004). They are potentially quite rewarding as well. 

For one thing, actual damages remain available in any case of 

identity theft. 15 U.S.C. § 1681n(a)(1)(A). For another, the 

possibility of punitive damages exists in cases where their 

imposition is needed for appropriate punishment and deterrence. 

15 U.S.C. § 1681n(a)(2). For a third, the possibility of 

offensive collateral estoppel with regard to liability exists 

for prospective plaintiffs, of whom in this case there are many. 

See Parklane Hosiery Co. v. Shore

Thus I am not convinced that the denial of class 

certification with its possibilities of annihilative 

consequences would allow companies who violate the statute to 

emerge laughing and unscathed. FACTA “provides sufficient 

motivation for adversely affected individuals to bring suit and 

for attorneys to represent them.” 

, 439 U.S. 322 (1979).

Campos v. ChoicePoint, Inc., 

237 F.R.D. 478, 490 (N.D. Ga. 2006). This is especially so 

since the costs of compliance with the statute remain minor in 

comparison to the costs of dealing with litigation, in whatever 

form it may assume. For the above reasons, I believe it well 

within a district court’s discretion to consider the magnitude 

of the costs upon the company and its employees that class 
- 40 -

certification may impose. Allowing such consideration will not 

leave the statute toothless, nor fly in the face of any 

congressional mandate, nor court the constitutional problems 

associated with constraining district court discretion provided 

by Federal Rule of Civil Procedure 23. Because I do not 

understand the court’s judgment to preclude the exercise of 

discretion in this manner upon remand, I respectfully offer this 

special concurrence.