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Colella v. University of Pittsburgh

August 4, 2008

MICHAEL COLELLA INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
UNIVERSITY OF PITTSBURGH AND DOES 1 THROUGH 10 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION

I. Introduction

Before the Court are defendant University of Pittsburgh's Motion to Vacate Preliminary Approval Order and for Entry of Judgment (doc. no. 14) and plaintiff Michael Colella's Motion for Final Approval of Class Action Settlement (doc. no. 22). For the reasons to follow, the Court will deny defendant's Motion to Vacate and grant plaintiff's Motion for Final Approval of Class Action Settlement.

II. Background

1. The Complaint

Plaintiff Collela filed, in his own right and on behalf of a putative class, a complaint alleging that the University of Pittsburgh and its employees repeatedly and willfully violated the Fair and Accurate Credit Transaction Act ("FACTA"), codified as relevant to this action at 15 U.S.C. § 1681c(g), and "failed to protect Plaintiff and others similarly situated against identity theft and credit card and debit card fraud by continuing to print more than the last five digits of the card number and/or the expiration date on receipts provided to debit card and credit card cardholders transacting business with Defendants." Complaint, ¶ 3. The Complaint seeks "on behalf of himself and the class, statutory damages, punitive damages, costs and attorneys fees, all of which are expressly made available by statute . . . ." Complaint, ¶ 5. Plaintiff alleges that although Defendant had actual knowledge of FACTA's truncation requirements, "specifically including the requirement that credit and debit card expiration dates be truncated on receipts presented to consumers at the point of sale and was provided with notice of these obligations by trade associations" such as Visa, Complaint, ¶ 21, it failed to comply with FACTA from 2005 through 2008 and, in January 2008, gave plaintiff COLELLA an electronically printed receipt on which Defendant had printed the expiration date of Plaintiff's credit or debit card. Complaint, ¶54. The Complaint also sets forth allegations as to why the case is appropriate for class action pursuant to Fed.R.Civ.P. 23.

The parties were directed to participate in this Court's Alternative Dispute Resolution Program. (doc. no. 2). Before completion of ADR and before defendant had filed an answer to the Complaint, this Court was notified that the parties had agreed to settle the case, subject, of course, to this Court's obligation to review any proposed class action settlement for reasonableness, adequacy and fairness to the absent class members under Fed.R.Civ.P. 23(e).

2. The Settlement Agreement/ Joint Motion for Court Approval

On May 12, 2008, this Court entered an Order (doc. no. 13) granting the Joint Motion for Preliminary Approval of Class Action Settlement (doc. no. 11), filed jointly by plaintiff Colella, in his own right and as representative of a class of plaintiffs, and by defendant University of Pittsburgh. The detailed and comprehensive Class Action Settlement Agreement ("Agreement"), executed by the parties on or around May 9, 2008, was attached to the Joint Motion as Exhibit 1.

It defined (at section IV. 1.13) the settling class as follows:

All current and former University of Pittsburgh students who (i) purchased sporting events tickets via the Internet between December 4, 2006 and January 31, 2008; and (ii) received an electronic receipt or receipts at the point of sale or transaction which displayed (a) more than the last five digits of the student's credit card or debit card and/or (b) the expiration date of the student's credit card number.

Agreement, Exhibit 1 to Joint Motion (doc. no. 11-2 at 4 of 38).

The settlement set forth the consideration to each qualifying class member as one ticket having a face value of $10 to one of two University of Pittsburgh Panthers football games in the 2008 football season, and the consideration for the University to enter into the Agreement was that all members of the putative class would release any and all known and unknown claims. Id. at §§ 2.1.1 and 1.26

3. Court Order Granting Preliminary Approval

The Court's Order Granting Preliminary Approval of Proposed Class Action Settlement, Directing the Dissemination of Notice and Scheduling a Final Settlement Hearing (doc. no. 13) stated, in most relevant part:

The Court has considered the Class Action Settlement Agreement and its exhibits, the joint motion of the Settling Parties for an order preliminarily approving a class action settlement, directing the dissemination of notice and setting a final settlement hearing, and all other papers filed in this action. The matter having been submitted and good cause appearing therefore:

The Court finds as follows:

1. All defined terms contained herein shall have the same meanings as set forth in the Class Action Settlement Agreement executed by the Settling Parties and filed with this Court (the "Settlement Agreement");

2. The Class Representative and the University Releasees, through their counsel of record in the Litigation, have reached an agreement to settle all claims in the Litigation;

3. The Court preliminarily concludes that, for the purposes of approving this settlement only and for no other purpose and with no other effect on the Litigation, should the proposed Settlement Agreement not ultimately be approved or should the Effective Date not occur, the proposed Rule 23 Class likely meets the requirements for certification under Rule 23 of the Federal Rules of Civil Procedure: . . . ;

4. The moving parties also have presented to the Court for review a Class Action Settlement Agreement. The Settlement Agreement proposes a Settlement that is within the range of reasonableness and meets the requirements for preliminary approval; and

5. The moving parties have presented to the Court for review a plan to provide notice to the proposed Class of the terms of the settlement and the various options the Class has, including, among other things, the option for Class Members to opt-out of the class action; the option to be represented by counsel of their choosing and to object to the proposed settlement; and/or the option to become a Participating ...


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