                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA
	
__________________________________________
                                                     )
DANIEL E. BALLARD,                                   )
                                                     )
                        Plaintiff,                   )
                                                     )
                 v.                                  )
                                                     )        Civil Action No. 11-1327 (ESH)
BRANCH BANKING AND                                   )
TRUST COMPANY,                                       )
                                                     )
                        Defendant.                   )
                                                     )

                                     MEMORANDUM OPINION

          Daniel Ballard has instituted a class action against Branch Banking and Trust Company

(“BBT) because its automatic teller machine (“ATM”) lacked an on-machine fee notice, in

violation of the Electronic Fund Transfer Act (“EFTA” or “Act”). 15 U.S.C. §§ 1693 et seq.

Before the Court is his motion to certify a class of consumers who were charged withdrawal fees

from the allegedly non-compliant ATM machine. For the reasons explained here, his motion is

denied.

                                         BACKGROUND

          The EFTA seeks to ensure that operators of ATMs provide notice to consumers when a

fee will be imposed for use of the ATM. See also 12 C.F.R. §§ 205 et seq. It requires ATM

operators to give such notice both “on or at” the machine itself and on the display screen so that

the consumer is advised before the transaction is completed. 15 U.S.C. § 1693b(d)(3)(B)(i)-(ii).1

Section 1693m of the Act creates a cause of action for violation of the fee notice provision, and


1
 The Court assumes, for the purposes of this Memorandum Opinion, that both forms of notice
are required. See Dragotta v. W. View Sav.s Bank, 395 Fed. Appx. 828, 829 n.2 (3d Cir. 2010).
permits recovery of actual damages and statutory damages ranging from $100 to $1,000 in

individual actions. See 15 U.S.C. § 1693m(a)(1)-(2)(A). It further provides for class actions for

EFTA violations, authorizing actual damages and statutory damages of up to $1,000 per class

member, with a cap of the lesser of $500,000 or one percent of the net worth of the defendant

ATM operator. See 15 U.S.C. § 1693m(a)(2)(B).

       Plaintiff claims that BBT, which operated an ATM at 614 H St., N.W., Washington, D.C.

2011 (“the ATM”), violated the EFTA. (Am. Class Action Compl. ¶ 11.) Ballard first became

aware of this violation when his attorney, based on his observation of the machine on June 9,

2012, informed him that the ATM did not have a fee notice on the outside of the machine.

(Def.’s Opp’n to Pl.’s Mot. for Class Certification (“Def.’s Opp’n”), Ex. 3 (Pl.’s Resp. to

Interrog. No. 8).) On or about June 24, 2011, Ballard personally observed that the ATM did not

have the notice and, on July 8, 2011, he returned to the ATM to withdraw money or, as he

described it, “collect evidence.” (Def.’s Opp’n, Ex. 4 (“Ballard Dep.”) 36:17-37:21; Am. Class

Action Compl. ¶¶ 7-11.) Although there was no sign on the ATM’s exterior, Ballard was

notified, by a clearly visible message on the display screen, that he would be charged a fee and

the amount of the fee for the withdrawal. (Ballard Dep. 36:9-36:13.) He chose to proceed

anyway and was accordingly charged three dollars. (Id. 36:17-36:20.)

       Thereafter, on July 21, 2011, he brought this proposed class action, claiming statutory

damages for defendant’s alleged violation of the EFTA by failing to post the statutorily-

mandated notice on its ATM. 15 U.S.C. § 1693m(a)(2). Plaintiff now moves to certify a class of




                                                 2
consumers who were charged a fee for withdrawing money from the ATM between March 1,

2011, and July 21, 2011.2 (See Pl.’s Mot. for Class Certification (“Pl.’s Mot.”).)

                                            ANALYSIS

I.     LEGAL STANDARD

       Under Federal Rule of Civil Procedure 23 “‘[a] class action may be maintained’ if two

conditions are met: The suit must satisfy the criteria set forth in subdivision (a) (i.e., numerosity,

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., 130 S. Ct. 1431, 1437 (2010). “[A] class plaintiff has the burden of showing that the

requirements of Rule 23(a) are met and that the class is maintainable pursuant to one of Rule

23(b)’s subdivisions.” Richards v. Delta Air Lines, Inc., 453 F.3d 525, 530 (D.C. Cir. 2006).

Plaintiff has sought certification under Rule 23(b)(3). Therefore, he must also show “that the

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

affecting only individual members, and that a class action is superior to other available methods

for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3).

       The Rule 23(a) factors are arguably satisfied here as numerous courts adjudicating fee-

notice cases have explained. See, e.g., Pfeffer v. HSA Retail, Inc., No. 11-cv-959, 2012 U.S.

Dist. LEXIS 73083 (W.D. Tex. May 24, 2012); Kinder v. Nw. Bank, 278 F.R.D. 176 (W.D.

Mich. Nov. 2, 2011); Nadeau v. Wells Fargo Bank, N.A., No. 10-4356, 2011 U.S. Dist. LEXIS

49648 (Apr. 26, 2011); Flores v. Diamond Bank, No. 07 C 6403, 2008 U.S. Dist. LEXIS 91097

(N.D. Ill. Nov. 7, 2008); Mowry v. JP Morgan Chase Bank, N.A., 2007 U.S. Dist. LEXIS 44222


2
  For the purposes of this motion, BBT has agreed to treat June 24, 2011, as the date that Ballard
(as opposed to his lawyer) initially observed that the ATM lacked a fee notice. (Def.’s Opp’n at
8 n.1.)



                                                  3
(N.D. Ill. June 19, 2007); Burns v. First Am. Bank, No. 04 C 7682, 2006 U.S. Dist. LEXIS 92159

(N.D. Ill. Dec. 19, 2006). Therefore, the Court will only touch upon them as relevant before

focusing on the more stringent requirements of Rule 23(b)(3).

II.    COMMONALITY, TYPICALITY, AND PREDOMINANCE

       BBT argues that two major differences among the proposed class members’ claims

prevent Ballard from establishing the commonality or typicality, as required by Rule 23(a), or

showing that common issues predominate over individual issues, as required by Rule 23(b)(3). 3

       These three prerequisites for class certification are interrelated. As the Supreme Court

recently reaffirmed, “‘the commonality4 and typicality5 requirements of Rule 23(a) tend to

merge” as “[b]oth serve as guideposts for determining whether under the particular

circumstances maintenance of a class action is economical and whether the named plaintiff’s

claim and the class claims are so interrelated that the interests of the class members will be fairly

and adequately protected in their absence.’” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

2551 n.5 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157-58, n. 13 (1982)).

3
  Rule 23(a) factors are typically considered separately from and prior to the Rule 23(b)(3)
factors. Kottaras v. Whole Foods Mkt., Inc., No. 08-1832, 2012 U.S. Dist. LEXIS 10885, at *13
(D.D.C. Jan. 30, 2012). However, because BBT makes the same argument regarding plaintiff’s
ability to establish commonality, typicality, and predominance and since plaintiff’s response
resolves this argument as to all three factors, the discussion can be consolidated.
4
 “Commonality requires that the plaintiff raise claims which rest on ‘questions of law or fact
common to the class’” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007)
(quoting Fed. R. Civ. P. 23(a)(2)). Not “every issue of law or fact [need] be the same for each
class member.” Bynum v. Dist. of Columbia, 217 F.R.D. 43, 46 (D.D.C. 2003). Rather, “[t]he
commonality test is met when there is at least one issue . . . the resolution of which will affect all
or a significant number of the putative class members.” Coleman v. Pension Benefit Guaranty
Corp., 196 F.R.D. 193, 198 (D.D.C. 2000) (internal quotation marks omitted).
5
 “Typicality requires that the claims of the representative be typical of those of the class.”
Taylor, 241 F.R.D. at 44. Typicality is satisfied when the plaintiffs’ claims “arise from the same
course of conduct, series of events, or legal theories of other class members.” In re XM Satellite
Radio Holdings Sec. Litig., 237 F.R.D. 13, 18 (D.D.C. 2006).



                                                  4
Likewise, the predominance requirement of Rule 23(b)(3), which is “similar” to the typicality

required by Rule 23(a)(3), “tests whether proposed classes are sufficiently cohesive to warrant

adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997).

However, the predominance inquiry under Rule 23(b)(3) is “far more demanding” than Rule

23(a)’s commonality requirement. Id. at 623-24.

       First, BBT contends that the class definition includes some members who cannot assert a

claim under the EFTA and therefore the proposed class lacks the requisite commonality,

typicality, and predominance. (Def.’s Opp’n at 14-18.) This argument is based upon the

meaning of “consumer account” within the EFTA, which includes only personal and not business

accounts. 15 U.S.C. § 1693a(6) (defining “consumer” as a “natural person”); id. § 1693a(2)

(limiting the EFTA’s coverage to accounts “established primarily for personal, family, or

household purposes”); see also Ironforge.com v Paychex, Inc., 747 F. Supp. 2d 384, 402

(W.D.N.Y. 2010) (distinguishing two types of accounts under the EFTA); Shames-Yeakel v.

Citizens Fin. Bank, 677 F. Supp. 2d 994, 1007 (N.D. Ill. 2009) (same); Regatos v. North Fork

Bank, 257 F. Supp. 2d 632, 638 n. 10 (S.D.N.Y. 2003) (finding that even a non-corporate,

individual account is not a “consumer account” if it is used for business purposes). This

distinction is important here because some unknown portion of the individuals who used the

ATM are not “consumers” under the EFTA since (1) some of the transactions involved corporate

accounts and (2) some of the transactions involved personal accounts that are used for business,

rather than personal, purposes. Therefore, BBT argues, some members of the proposed class do

not qualify as “consumers,” and consequently their claims will be different. (See Def.’s Opp’n

at 11-18.)




                                                5
       In response, plaintiff has agreed to limit the class to “consumers” who are covered by the

EFTA. (See Pl.’s Reply at 9 n. 4.) Therefore individuals who made transactions involving

accounts used for business purposes will not be included in the proposed class. Limiting the

class to “consumers” thus cures certain problems, but, as discussed in Section III, infra, creates

practical obstacles that ultimately contribute to the conclusion that a class action is not

appropriate here.

       Second, BBT argues that, because putative class members used the ATM on different

dates, the Court will need to conduct a case-by-case inquiry into whether the fee notice was on

the machine, and that this precludes a finding of commonality, typicality, or predominance.

(Def.’s Opp’n at 18.)

       This poses no problem for the Rule 23(a) requirements. “The existence of factual

distinctions between the claims of putative class members will not preclude a finding of

commonality,” Chang v. United States, 217 F.R.D. 262, 270 (D.D.C. 2003), because a common

legal question remains: whether the withdrawal fee imposed at the ATM violated the EFTA. See

Kinder, 278 F.R.D. at 183-84; Burns, 2006 U.S. Dist. LEXIS 92159, at *24-27. Nor does it

destroy typicality, since Ballard’s claim “arise[s] from the same course of conduct, series of

events, or legal theories as the claims of other class members.” In re XM Satellite Radio

Holdings Sec. Litig., 237 F.R.D. 13, 18 (D.D.C. 2006).

       However, this argument poses a more serious challenge to the predominance inquiry.

Initially, Ballard sought to certify a class of “all persons who, in the twelve (12) months prior to

the filing of Plaintiff’s complaint, made an EFT [(electronic funds transfer)] at one of

Defendant’s ATMs located at 614 H Street, N.W., Washington, DC 20001, and were charged a

“terminal owner fee” in connection with the transaction.” (Pl.’s Mot. at 4.) Plaintiff has since




                                                  6
narrowed this definition to include only those who used the ATM between March 1, 2011 and

July 21, 2011, since he concedes that he cannot controvert defendant’s evidence that the bank

was compliant during the February/March 2011 time period and that he has no evidence that

defendant was out of compliance prior to February 2011. (See Pl.’s Reply at 12 n.8.) However,

given this concession, the use of the March 1, 2011, start date also appears to have no factual

basis.

         Moreover, the unclear timeline for the alleged EFTA violation distinguishes this suit

from other fee-notices cases (the majority of which certify a class for settlement purposes only),

since common proof may not resolve the factual issues on a classwide basis here.6 For

consumers who used the ATM between June 24, 2011 and July 21, 2011, common proof on

whether the required notice was on the ATM will resolve one factual question in this case. See

Kinder, 278 F.R.D. at 183; Flores, 2008 U.S. Dist. LEXIS 91097, at *6-7. But, for consumers

who used the ATM between March 1, 2011, and June 9, 2011, common proof may not resolve

the factual question of when the “on-machine” notice ceased to be affixed to the ATM since it is

unknown (and perhaps unknowable) whether the fee notice was on the ATM during that time

after March 1, 2011. It is uncontested by plaintiff (see Pl.’s Reply at 12 n.8) that defendant’s

evidence established the presence of all required notices in February and March of 2011. (See

Def.’s Opp’n, Ex. 2 (Decl. of Devaughn Moore) ¶¶ 2-3.) Given the extremely low likelihood of

class members coming forward (see infra Section III) with information about whether the notice
6
  Although “[t]here is no definitive test for determining whether common issues predominate,”
the predominance requirement is “met when there exists generalized evidence which proves or
disproves an element on a simultaneous, class-wide basis, since such proof obviates the need to
examine each class members’ individual position.” In re Vitamins Antitrust Litig., 209 F.R.D.
251, 262 (D.D.C. 2002) (quotation marks omitted); Charles A. Wright, et al., Fed. Practice &
Procedure § 1785 (“[I]t is necessary for the court to consider what will have to be proved at trial
and whether those matters can be presented by common proof or whether individual proof will
be required.”).



                                                 7
was on the ATM between March 1, 2011 and June 9, 2011, it may never be possible to resolve

this factual question for consumers who used the ATM during that time.7 Consequently, it is far

from clear that common issues predominate. The Court, however, need not resolve the issue of

predominance because, as explained below, a class action suit is simply not a superior method of

litigating this case.

III.    SUPERIORITY OF CLASS ACTION

        In addition to predominance, Rule 23(b)(3) requires that class treatment be superior to

other methods of adjudicating a controversy.8 This prerequisite is met “where common

questions of law or fact permit the court to consolidate otherwise identical actions into a single

efficient unit.” Bynum, 214 F.R.D. at 39-40. The factors to be considered are:

                (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.

Fed. R. Civ. P. 23(b)(3).

        In reality, BBT’s point regarding the EFTA’s distinction between business and personal

account-holders is more appropriately analyzed under Rule 23(b)(3), for it is actually a challenge

7
  The length of BBT’s alleged non-compliance with the EFTA is relevant to establishing liability
and calculating statutory damages. See 15 U.S.C. § 1693m (b)(2) (directing courts determining
damage awards in class actions under subsection (a)(2)(B) to consider “the frequency and
persistence of noncompliance, the nature of such noncompliance, the resources of the defendant,
the number of persons adversely affected, and the extent to which the noncompliance was
intentional”).
8
 Under this rule, “a class action [must be] superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. Pro. 23(b)(3).



                                                  8
to the superiority of a class action as a vehicle for litigation. That is, defendant argues that the

proposed class action is simply not manageable because of the logistical difficulty of identifying

and notifying putative class members. While other courts have dealt with similar arguments in

fee notice cases, the distinct facts of this case make it even more challenging and less efficient to

litigate this case as a class action.

        To adjudicate this case, it is absolutely essential to communicate with the individuals who

used the ATM. In order to determine if an ATM-user is a “consumer” and therefore within the

putative class, the Court must make certain limited individualized inquiries of each class

member. If this cannot be done, the Court will not know if the ATM-user was a “consumer” and

therefore cannot ascertain the size of the class. In addition, without this information, it cannot

determine statutory damages. See 15 U.S.C. § 1693m(b)(2) (determination of damages to be

based, in relevant part, on “the number of persons adversely affected”).

        Clearly, it is not feasible to individually identify class members.9 BBT, like other ATM-

operators, is not permitted to keep records that would enable it to identify ATM-users or to

determine which ATM-users are “consumers” within the meaning of the EFTA. (Def.’s Opp’n,

Ex. 1 (“Piper Decl.”) ¶ 5.) The only information it retains is a six-digit identification number for

the ATM-user’s bank (a “Bank Identification Number”) and a ten-digit number that the ATM-

user’s bank can use to identify the account-holder. (Id. ¶ 6.) Therefore, BBT would have to

contact each bank—of which there may be hundreds if not thousands— and each bank would

have to search their records to identify the particular ATM-user. (Id. ¶¶ 5, 7.) Even if this could
9
 The ability to identify and notify class members is relevant to the propriety of certification
under Rule 23(b)(3). Burns, 2006 U.S. Dist. LEXIS 92159, at *36; Williams v. Glickman, No.
95-1149, 1997 U.S. Dist. LEXIS 1683, at *13 (D.D.C. Feb. 14, 1997). While individual notice is
not absolutely required, members of a class certified under Rule 23(b)(3) are entitled to “the best
notice that is practicable under the circumstances, including individual notice to all members
who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B).



                                                   9
be acceptable, each ATM-user would then have to be contacted and questioned to determine

whether their account was a “consumer” account used for personal purposes. Multiple courts,

including Flores, Nadeau, and Mowry, have found that this is not a reasonable method for

providing notice and, in fact, the Court has yet to find any case in which this method has actually

been attempted.

       As a result, notice by publication is the only viable alternative, but it too is fraught with

difficulties. First, the ATM is located at the Verizon Center in the middle of downtown

Washington, D.C., which means that the users likely include tourists and visitors from all over

the world. They are not likely to return to the ATM to see a notice of pending litigation posted

on the machine nor are they likely to see a notice of the class action in a local publication. In

that sense, this case is distinct from cases like Kinder or Flores. Second, these notices provide a

mechanism for class members to opt out, but do not require class members to actually participate

in the suit. See, e.g., Joint Mot. to Provide Class Notice in the Form Agreed to by both Parties as

Discussed at the May 7, 2009 Status Conf., Flores v. Diamond Bank, 07 C 6403 (N.D. Ill. May

27, 2009) (Dkt. No. 99).) Even if the Court were to use an “opt-in” notice, there is no reason to

believe that anyone would come forward, particularly as the payout to each class member is

likely to be so miniscule. See, e.g., Flores, 2008 U.S. Dist. LEXIS 91097, at *10-11 (noting that

the statutory cap imposed on class actions means that class members would recover less than

they would if bringing individual actions); Mowry, 2007 U.S. Dist. LEXIS 44222, at *10

(estimating damages at $0.03 per class member). Moreover, as Judge Magnuson recognized in

Nadeau, class members may not come forward because they received the on-screen notice and

agreed to the transaction fee, and thus they have no reason to feel particularly aggrieved. 2011

U.S. Dist. LEXIS 49648, at *12. If ATM-users do not come forward to identify themselves as




                                                 10
“consumer” account-holders, the suit cannot proceed because the Court will have no way of

knowing which of the 2,000 transactions per month are attributable to “consumers.”10 Moreover,

if users from March 2011 through June 9, 2011 do not come forward, the Court will not be able

to resolve the key factual dispute for each putative class member of whether the fee notice was

on the ATM during that time.

       Ballard argues that, even if a small percentage (only 25%) of the estimated 2,000 ATM-

users11 in one month were identified as consumers, its damage award would still exceed the

statutory maximum.12 (Pl.’s Reply at 9 n. 5.) But the premise of plaintiff’s argument is both

factually and legally flawed. This hypothetical calculation assumes that the putative class

members would each receive the statutory maximum of $1,000, which is highly debatable. Even

if a violation of the “on-machine” requirement could be proven for the specific date in question,

it is uncontested that these consumers received the statutorily-required, more detailed “on-

screen” notice that told them of the amount of the transaction fee, but nonetheless, they chose to

proceed with the transaction and incur the fee. Therefore, even if statutory damages are

warranted, it is difficult to understand the basis for plaintiff’s overly optimistic assumption that

10
   Contrary to plaintiff’s suggestion (Pl.’s Reply at 9-10), the problem is not simply that asking
the individual ATM-users one question is burdensome. See Wells v. McDonough, 188 F.R.D.
277, 279 (N.D. Ill. 1999) (explaining that need to ask ATM-users one question was not a reason
to deny class certification); see also Chisolm v. TranSouth Fin. Corp., 194 F.R.D. 538, 551-52
(E.D. Va. 2000) (distinction between personal and business purchases not a bar to consumer
class, as statutory damages for actual consumers could be ascertained at a later time). Rather, the
problem is identifying the ATM-users and determining whether they properly belong in the
statutory class.
11
  Plaintiff estimates that there are 2,000 transactions per month. (Pl.’s Reply at 2.) The Court
recognizes that some of these may be made by the same person, meaning that the total number of
ATM-users per month is likely less than 2,000.
12
   Section 1693m(a)(2)(B)(ii) limits “the total recovery . . . in any class action or series of class
actions arising out of the same failure to comply by the same person [to] not be more than the
lesser of $500,000 or 1 per centum of the net worth of the defendant.”



                                                  11
he can recover the maximum amount. See Nadeau, 2011 U.S. Dist. LEXIS 49648, at *12-13

(explaining that “[a] court may determine that statutory damages, in the case of the evidence of

an on-screen agreement to the fee and the extremely small amount of actual damages, are de

minimis”).13

       While the many courts that have grappled with the EFTA cases have arrived at different

conclusions about whether a class action is superior, they did not confront the myriad difficulties

presented here. See, e.g., Kinder, 278 F.R.D. at 183-87; Mabary v. Hometown Bank, N.A., No.

4:10-cv-3936, 2011 U.S. Dist. LEXIS 134437, at *10-11 (S.D. Tex. Nov. 21, 2011);14 Flores,

2008 U.S. Dist. LEXIS 91097, at *6-7; Burns, 2006 U.S. Dist. LEXIS 92159, at *40-41.15 The

majority of certifications were for settlement purposes only and involved a definite time period

for the violation. As the court in Pfeffer pointed out in denying class certification, the few courts

that have certified classes prior to settlement have yet to resolve the practical problems presented

in a case such as this. 2012 U.S. Dist. LEXIS 73083, at *10-11 & n.3; see also Nadeau, 2011

U.S. Dist. LEXIS 49648, at *11-14 (declining to certify due to lack of superiority).


13
  The fact that the statutory damages may well be de minimis is not necessarily a basis for
denying certification, since the statute imposes no minimum recovery for class members. 15
U.S.C. § 1693m(a)(2)(B)(i). However, the likelihood of de minimus damages may make it
preferable for consumers to litigate their claims as individual actions, for which the minimum
recovery is $100. 15 U.S.C. § 1693m(a)(2)(A); see Nadeau, 2011 U.S. Dist. LEXIS 49648, at
*13.
14
  The Mabary class certification order was conditionally vacated for reasons unrelated to the
propriety of certification and the docket does not show that notice was ever given to class
members. See Tr. of Mot. to Dismiss Hrg. 6:20-12:16, Mabary v. Hometown Bank, N.A., No.
4:10-cv-3936 (S.D. Tex. Dec. 6, 2011) (Dkt. No. 57).
15
  Burns is also distinguishable because the plaintiffs in that case received incorrect information
on the “on-screen” fee notice and therefore, unlike plaintiff here, never received the correct
information prior to completing the transaction. Id., at *21 n.4, 25. But even there the Court
recognized that notice by publication would be an unlikely method to “encourage a large number
of individuals to come forward and claim what likely will be a minimal award.” Id., at *38.



                                                 12
        Ballard’s response is that all ATMs are used for both types of accounts and so the

inability to identify “consumers” within ATM-users cannot be a bar to certification because it

would conflict with the statute’s provision for class actions. (Pl.’s Reply at 6.) However, he

offers no authority for the suggestion that Congress intended the EFTA to authorize class actions

that do not satisfy the superiority requirement of Rule 23(b)(3).

        Given plaintiff’s concession that notice by publication is the only practical means for

finding class members and since he recognizes that class members will need to be quizzed as to

whether they engaged in a consumer transaction at a time when there was no notice on the

machine (as opposed to the screen), it is highly likely that the class could, at best, consist of a

handful of consumers, or at worst, be a class of one—plaintiff. Moreover, it is undisputed that

each of the prospective class members proceeded with the transaction despite having received

the required notice on the screen and that the potential class recovery will be de minimus,

especially in comparison to the petition for fees and costs that will ultimately be filed after

lengthy and costly litigation. Given these substantial difficulties, see Mowry, 2007 U.S. Dist.

LEXIS 44212, at *15, the Court concludes that plaintiff has failed to satisfy Rule 23(b) and class

certification is denied.

                                          CONCLUSION

        For the foregoing reasons, the Court denies plaintiff’s motion for class certification. A

separate order accompanies this Memorandum Opinion.



                                                                  /s/
                                                       ELLEN SEGAL HUVELLE
                                                       United States District Judge

Date: June 11, 2012




                                                  13
