Abercrombie Gift Card Class

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Opinion certifying a class action regarding expiring gift cards
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  UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOISEASTERN DIVISIONGS TIFFANY BOUNDAS and DOROTHY STOJKA,individually and on behalf of a class,Plaintiffs,vs.ABERCROMBIE & FITCH STORES, INC., an Ohiocorporation,Defendant.)))))))))))10 C 4866Judge Feinerman M EMORANDUM O PINION AND O RDER  Plaintiffs Tiffany Boundas and Dorothy Stojka brought this putative class action in theCircuit Court of DuPage County, Illinois, against Defendant Abercrombie & Fitch Stores, Inc.,alleging breach of contract and violation of the Ohio Consumer Sales Practices Act (“OCSPA”),Ohio Rev. Code Ann. § 1345.01 et seq . Abercrombie removed the case pursuant to 28 U.S.C.§ 1453(b), premising jurisdiction on the Class Action Fairness Act (“CAFA”), 28 U.S.C.§ 1332(d). On Abercrombie’s motion, the court dismissed the OCSPA claims because thetransactions at issue involved non-Ohio consumers and otherwise lacked a substantial connectionto Ohio. 2011 WL 1676053 (N.D. Ill. May 2, 2011). Plaintiffs then moved to remand the caseto state court, arguing that dismissal of the OCSPA claims reduced the matter in controversy below CAFA’s jurisdictional minimum of $5 million. The court denied the motion. 2011 WL5903495 (N.D. Ill. Nov. 21, 2011).-1- Case: 1:10-cv-04866 Document #: 86 Filed: 03/07/12 Page 1 of 19 PageID #:693   Now before the court is Plaintiffs’ amended motion for class certification of the contractclaims under Federal Rule of Civil Procedure 23. Plaintiffs seek certification of the followingnationwide class:All people who received Abercrombie & Fitch Stores, Inc. promotional giftcards in hard copy stating “no expiration date” issued as part of a 2009winter holiday in-store promotion and voided by Abercrombie & FitchStores, Inc. on or after January 30, 2010 despite having credit remaining onthe gift cards.Doc. 58 at 1. For the reasons that follow, class certification is granted, though Plaintiffs’ proposed class definition is modified and only Boundas will serve as a class representative. See In re Motorola Sec. Litig. , 644 F.3d 511, 518 (7th Cir. 2011) (“a district court has the authorityto modify a class definition at different stages in litigation”);  Powers v. Hamilton Cnty. Pub. Defender Comm’n , 501 F.3d 592, 619 (6th Cir. 2007) (“district courts have broad discretion tomodify class definitions, so the district court’s multiple amendments merely showed that thecourt took seriously its obligation to make appropriate adjustments to the class definition as thelitigation progressed”). Discussion Abercrombie is a clothing retailer with stores across the United States. In a December 2009 promotion, Abercrombie gave a $25 promotional gift card to customers who bought at least$100 of merchandise in a single transaction. Stojka purchased merchandise at an Abercrombiestore in Oak Brook, Illinois, and received promotional gift cards with a cumulative value of $75.The cards state: “This gift card is redeemable at all Abercrombie & Fitch … locations,Abercrombie.com and abercrombiekids.com. … No expiration date.” Stojka gave her cards toBoundas, who was with Stojka at the time. Boundas attempted to redeem the cards at the Oak Brook store some months later, in April 2010, but the store declined, explaining that-2- Case: 1:10-cv-04866 Document #: 86 Filed: 03/07/12 Page 2 of 19 PageID #:694  Abercrombie had voided the cards on or around January 30, 2010, eliminating all remainingvalue on them. That might appear to be a poor way for a national retailer to treat its customers, but Abercrombie explains that each card was enclosed in a sleeve expressly saying: “$25 giftcard expires 1/30/10.” Doc. 62 at 3.To be certified, a proposed class must satisfy the four requirements of Rule 23(a): “(1)the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties aretypical of the claims and defenses of the class; and (4) the representative parties will fairly andadequately protect the interests of the class.” Fed. R. Civ. P. 23(a). If Rule 23(a) is satisfied, the proposed class must fall within one of the three categories in Rule 23(b), which the SeventhCircuit has described as: “(1) a mandatory class action (either because of the risk of incompatiblestandards for the party opposing the class or because of the risk that the class adjudicationwould, as a practical matter, either dispose of the claims of non-parties or substantially impair their interests), (2) an action seeking final injunctive or declaratory relief, or (3) a case in whichthe common questions predominate and class treatment is superior.” Spano v. Boeing Co. , 633F.3d 574, 583 (7th Cir. 2011). Plaintiffs seek to certify only a Rule 23(b)(3) class, so the twoother categories will not be addressed. Finally, the class must be “identifiable as a class,”meaning that the “class definitions must be definite enough that the class can be ascertained.” Oshana v. Coca-Cola Co. , 472 F.3d 506, 513 (7th Cir. 2006).The putative class representative bears the burden of showing that each requirement issatisfied. See Retired Chi. Police Ass’n v. City of Chi. , 7 F.3d 584, 596 (7th Cir. 1993). “Failureto meet any one of the requirements of Rule 23 precludes certification of a class.”  Harriston v.Chi. Tribune Co. , 992 F.2d 697, 703 (7th Cir. 1993). Although “as a general principle, a court is-3- Case: 1:10-cv-04866 Document #: 86 Filed: 03/07/12 Page 3 of 19 PageID #:695  not allowed to engage in analysis of the merits in order to determine whether a class action may be maintained[,] ... the boundary between a class determination and the merits may not always be easily discernible,” and “the class determination generally involves considerations that areenmeshed in the factual and legal issues comprising the plaintiff’s cause of action.”  Retired Chi. Police , 7 F.3d at 598-99 (internal quotation marks omitted);  see also Wal-Mart Stores, Inc. v. Dukes , 131 S. Ct. 2541, 2551 (2011) (class certification analysis “[f]requently … will entailsome overlap with the merits of the plaintiff’s underlying claim”). As the Seventh Circuitexplained, “a district court must make whatever factual and legal inquiries are necessary toensure that requirements for class certification are satisfied before deciding whether a classshould be certified, even if those considerations overlap the merits of the case.”  Am. Honda Motor Co. v. Allen , 600 F.3d 813, 815 (7th Cir. 2010);  see also Kartman v. State Farm Mut. Auto. Ins. Co. , 634 F.3d 883, 889-90 & n.6 (7th Cir. 2011). The Seventh Circuit has instructeddistrict courts to exercise “caution” before certifying a class. Thorogood v. Sears, Roebuck &Co. , 547 F.3d 742, 746 (7th Cir. 2008). I. Rule 23(a)A. Rule 23(a)(1): Numerosity  Numerosity is not disputed, as Abercrombie voided nearly 200,000 promotional giftcards. B. Rule 23(a)(4): Adequacy The Rule 23(a)(4) adequacy inquiry “consists of two parts: (1) the adequacy of the named plaintiffs as representatives of the proposed class’s myriad members, with their differing andseparate interests, and (2) the adequacy of the proposed class counsel.” Gomez v. St. Vincent  Health, Inc. , 649 F.3d 583, 592 (7th Cir. 2011). Abercrombie does not challenge class counsel,-4- Case: 1:10-cv-04866 Document #: 86 Filed: 03/07/12 Page 4 of 19 PageID #:696
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