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Aggregated Statutory Damages in Class

Litigation: Leveraging Rule 23 and Due

Process Arguments to Defeat Certification

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

THURSDAY, NOVEMBER 10, 2016

Michael P. Daly, Partner, Drinker Biddle & Reath, Philadelphia

Archis A. Parasharami, Partner, Mayer Brown, Washington, D.C.

Jonathan L. Schwartz, Partner, Goldberg Segalla, Chicago

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Superiority and Due Process Challenges to Certifying Claims for Aggregated Statutory Damages

Archis A. Parasharami Mayer Brown LLP

1999 K Street, N.W.

Washington, DC 20006-1101

P: 202.263.3328

[email protected]

www.classdefenseblog.com

Michael P. Daly Drinker Biddle & Reath LLP

One Logan Square, Ste. 2000

Philadelphia, PA 19103-6996

P: 215.988.2604

[email protected]

www.tcpablog.com

Plaintiffs Are Adaptable: Concepcion

The dissent claims that class proceedings are necessary to

prosecute small-dollar claims that might otherwise slip through

the legal system. But States cannot require a procedure that is

inconsistent with the FAA, even if it is desirable for unrelated

reasons. Moreover, the claim here was most unlikely to go

unresolved…. Indeed, the District Court concluded that the

Concepcions were better off under their arbitration agreement

with AT&T than they would have been as participants in a class

action, which “could take months, if not years, and which may

merely yield an opportunity to submit a claim for recovery of a

small percentage of a few dollars.”

AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (italics in original).

6

Plaintiffs Are Adaptable: Dukes

“What matters to class certification … is not the raising of

common ‘questions’—even in droves—but, rather the capacity of a

classwide proceeding to generate common answers apt to drive

the resolution of the litigation….” Rule 23 does not set forth a

mere pleading standard. A party seeking class certification must

affirmatively demonstrate his compliance with the Rule—that is,

he must be prepared to prove that there are in fact sufficiently

numerous parties, common questions of law or fact, etc.

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (italics in original)

(citation omitted).

7

Plaintiffs Are Adaptable: Behrend

By refusing to entertain arguments against respondents’ damages

model that bore on the propriety of class certification, simply

because those arguments would also be pertinent to the merits

determination, the Court of Appeals ran afoul of our precedents

requiring precisely that inquiry. And it is clear that, under the

proper standard for evaluating certification, respondents’ model

falls far short of establishing that damages are capable of

measurement on a classwide basis. Without presenting another

methodology, respondents cannot should Rule 23(b)(3)

predominance: Questions of individual damages calculations will

inevitably overwhelm questions common to the class.

Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013)

8

Explosion of “No Injury” Class Actions

Because the existence and amount of actual damages

will often vary from person to person, and because

that individualized issue will often predominate over

any common ones, plaintiffs have taken to seeking

solely statutory damages and targeting technical

violations of new or obscure statutes.

9

Case Study: Leysoto v. Mama Mia I, Inc.

Plaintiff alleges that Mama Mia Pizzeria unknowingly

violated the Fair and Accurate Credit Transactions Act

because it had been printing receipts showed too

much account information.

Actual damages alleged: $0

Defendant’s net worth: $40K

Aggregate damages sought: $46M

10

Hydraulic Pressure to Settle

Innocent businesses may prefer to settle baseless

claims rather than risk potentially “ruinous liability”:

• Fed. R. Civ. P. 23(f), 1998 Advisory Committee Note (“[C]ertification

… may force a defendant to settle rather than incur the costs of

defending a class action and run the risk of potentially ruinous

liability”)

• In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir.

2001) (“Even a defendant who is innocent and holy may rationally

choose to pay a few hundred million dollars in settlement of a class

action rather than ‘run the risk of ruinous liability.’”)

• In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995) (“They

may not wish to roll these dice. That is putting it mildly. They will be

under intense pressure to settle.”)

11

Prerequisites for Certification

• Rule 23(a)

― Numerosity

― Commonality

― Typicality

― Adequacy

• Rule 23(b)(3)

― Predominance

― Superiority

12

Superiority

“A class action may be maintained if Rule 23(a) is

satisfied and if: … (3) 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).

13

Superiority: Would It Be “Desirable”?

“The matters pertinent to these findings include:

(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)

14

Superiority: Would It Be “Fair”?

“Subdivision (b)(3) encompasses those cases in which a

class action would achieve economies of time, effort, and

expense, and promote, uniformity of decision as to

persons similarly situated, without sacrificing procedural

fairness or bringing about other undesirable results….

Factors (A)–(D) are listed, non-exhaustively, as pertinent

to the findings.”

Fed. R. Civ. P. 23(b)(3), 1966 Advisory Committee Notes

15

The Usual Suspects

Examples of statutes with minimum statutory damages

that are frequently invoked despite little (if any)

actual damage:

•FCRA

•FACTA

•FDCPA

•TCPA

•TCCWNA

16

The Usual Suspects – FCRA

Insofar as an employer’s use of consumer reports is concerned,

the FCRA has three primary requirements:

• 15 U.S.C. §1681b(b)(2)(A)(i): “a clear and conspicuous disclosure

…, in a document that consists solely of the disclosure, that a

consumer report may be obtained for employment purposes”

• 15 U.S.C. §1681b(b)(2)(A)(ii): “the consumer has authorized in

writing (which authorization may be made on the document referred

to in clause (i)) the procurement of the report by that person”

• 15 U.S.C. §1681b(b)(3)(A): “before taking any adverse action

based in whole or in part on the report, the person … shall provide to

the consumer to whom the report relates (i) a copy of the report;

and (ii) a description in writing of the rights of the consumer”

17

The Usual Suspects – FACTA

FACTA provides that anyone who accepts credit and debit cards

may not print “more than the last five digits of the card number

or the expiration date” on electronically printed receipts that are

given to consumers at the point of sale. 15 U.S.C. § 1681c(g).

Aggregate statutory damages can accumulate quickly:

• Leysoto v. Mama Mia I, Inc., 255 F.R.D. 693 (S.D. Fla. 2009)

• Grimes v. Rave Motion Pictures Birmingham, LLC, 552 F. Supp.

2d 1302, 1309 (N.D. Ala. 2008) (“FACTA is, on its face and in

application to these defendants, a bomb that has already

exploded or is so sure to explode that it needs diffusing.”).

18

The Usual Suspects – FDCPA

The FDCPA prohibits certain practices when trying to collect debts:

• Improper hours for phone contact

• Failure to cease communication (outside of litigation) upon written request

• Failing to cease communication upon request for validation

• Repeated phone calls with intent to annoy, abuse, or harass

• Communicating with consumers at work

• Contacting consumers known to be represented by counsel

• Misrepresentation or deceit

• Publishing consumer’s name or address on a bad debt list

• Seeking unjustified amounts

• Threatening arrest or legal action that is not permitted

• Abusive or profane language

• Communication with third-parties discussing nature of debts

• Contact by embarrassing media

• Reporting or threatening to report false credit information

19

The Usual Suspects – FDCPA (cont.)

The FDCPA also requires certain practices when trying to collect debts:

• Telling the consumer (in every communication) that you are a debt collector

• Telling the consumer (in initial communication) that information obtained will be

used in debt collection effort

• Giving name and address of original creditor upon consumer’s written request

• Notifying the consumer of his/her right to dispute the debt, in part or in full

• Providing verification of the debt, upon timely written request

• Filing suit in a proper venue, if debt collector chooses to initiate litigation

20

The Usual Suspects – TCPA

The TCPA regulates certain communications (i.e., certain speech)

that use telephones and fax machines. For example:

• Calls and Texts: Requires consent to the use of an autodialer

or prerecorded voice for certain calls to certain numbers.

• Facsimile Advertisements: Requires solicitation or an EBR and

strictly compliant opt out notices.

• Do-Not-Call Rules: requires that businesses observe DNC

Registry and maintain DNC list.

• Private Right of Action: Permits claims for statutory damages

($500 per negligent violation, $1,500 per willful violations).

21

The Usual Suspects – TCCWNA

TCCWNA regulates certain consumer “contracts,” “warranties,”

“notices,” and “signs.” Potentially affected documents include:

• Consumer Contracts and Warranties

• Website Terms and Privacy Policies

• Gift Cards and Gift Certificates

• Advertisements and Mailers

• Debt Collection Letters

• Estimates and Invoices

• Coupons and Vouchers

• Menus and Signs

22

The Usual Suspects – TCCWNA

Section 15: “No seller, lessor, creditor, lender or bailee shall in the

course of his business offer to any consumer or prospective

consumer or enter into any written consumer contract or

give or display any written consumer warranty, notice or sign

… which includes any provision that violates any clearly

established legal right of a consumer or responsibility of a

seller, lessor, creditor, lender or bailee as established by

State or Federal law at the time….”

Section 16: “No consumer contract, notice or sign shall state that any

of its provisions is or may be void, unenforceable or

inapplicable in some jurisdictions without specifying which

provisions are or are not void, unenforceable or inapplicable

within the State of New Jersey; provided, however, that this

shall not apply to warranties.”

23

Superiority: Sowing the Seeds

Certification “would be a horrendous, possibly

annihilating punishment, unrelated to any damages to

the purported class or to any benefit to defendant, for

what is at most a technical and debatable violation….

[T]he allowance of thousands of minimum recoveries …

would carry to an absurd and stultifying extreme the

specific and essentially inconsistent remedy Congress

prescribed as the means of private enforcement.”

Ratner v. Chemical Bank New York Trust Co., 54 F.R.D. 412, 416

(S.D.N.Y. 1972) (Frankel, J.)

24

Ratner Legacy (examples)

• Wilcox v. Commerce Bank, 474 F.2d 336 (10th Cir. 1973)

• Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir. 1974)

• Kline v. Coldwell Banker & Co., 508 F.2d 226 (9th Cir. 1974)

• London v. Wal-Mart Stores, 340 F.3d 1246 (11th Cir. 2003)

• Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004)

• Forman v. Data Transfer, 164 F.R.D. 400 (E.D. Pa. 1995)

25

Division Among The Courts

Some courts have taken a different approach from

Ratner, reasoning that Congress knows about Rule 23

and can cap aggregate statutory damages if it wishes

(as it did in TILA). Notable examples:

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

(Easterbrook, J.)

• Bateman v. Am. Multi-Cinema, 623 F.3d 708 (9th Cir. 2010)

(Paez, J.)

26

The Seventh Circuit’s Views in Murray

“The district judge sought to curtail the aggregate damages for

violations he deemed trivial. Yet it is not appropriate to use

procedural devices to undermine laws of which a judge

disapproves. Maybe suits such as this will lead Congress to

amend the [FCRA]; maybe not. While a statute remains on the

books, however, it must be enforced rather than subverted. An

award that would be unconstitutionally excessive may be

reduced, but constitutional limits are best applied after a

class has been certified. Then a judge may evaluate the

defendant’s overall conduct and control its total exposure.”

Murray, 434 F.3d at 954 (citations omitted)

27

The Ninth Circuit’s Views in Bateman

• “[W]hether the potential for enormous liability can justify a

denial of class certification depends on congressional intent….

Nothing in the plain text of the statute or in its legislative history

suggests that Congress intended to place a cap on potentially

enormous statutory awards or to otherwise limit the ability of

individuals to seek compensation…. In the absence of such

affirmative steps to limit liability, we must assume that Congress

intended FACTA’s remedial scheme to operate as it was written.

To limit class availability merely on the basis of ‘enormous’

potential liability … would subvert congressional intent.”

Bateman, 623 F.3d at 722

• But court reserves the question “whether a showing of ‘ruinous

liability’ would warrant denial of class certification in a FACTA or

similar action.” Id. at 723.

28

Compare Recent Ninth Circuit Decision

• Objectors appeal order granting final approval of class

settlement

• Ninth Circuit panel affirms in an unpublished opinion

• Briefly explains: “The district court did not abuse its discretion

in approving a class action settlement which awarded $15 to

each claiming class member, notwithstanding the possibility of a

$750 statutory penalty. The monetary award of $15 was

reasonable in light of the minimal (if any) harm suffered by the

plaintiffs. Furthermore, an award of $750 per claiming class

member could implicate due process concerns.”

Fraley v. Batman, 638 Fed. Appx. 594, 597 (9th Cir. 2016) (mem.)

29

Other Circuits – Parker (2d Cir.)

• 2d Cir. vacates/remands order denying class cert. on def’s motion.

• “We acknowledge Judge Glasser's legitimate concern 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.”

• “It may be that the aggregation in a class action of large numbers of

statutory damages claims potentially distorts the purpose of both

statutory damages and class actions. If so, such a distortion could

create a potentially enormous aggregate recovery for plaintiffs, and

thus an in terrorem effect on defendants, which may induce unfair

settlements.”

• But court says due process concerns should await further proceedings

Parker v. Time Warner Entertainment Co., 331 F.3d 13 (2d Cir. 2003)

30

Other Circuits – Stillmock (4th Cir.)

• 4th Cir. vacates/remands order denying class cert; holds that

superiority test satisfied

• Judge Wilkinson concurrence:

• Cautions against “adopt[ing] a procedural device that cuts against

the grain of practical justice as the trial courts conceive it.”

• “I worry that the exponential expansion of statutory damages

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

killer that Congress has not sanctioned.”

• “Rule 23(b)(3)’s superiority requirement . . . 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.”

Stillmock v. Weis Markets, Inc., 385 F. App’x 267 (4th Cir. 2010)

31

Will This Issue Evade Review?

• Many decisions in this area recognize the potential for an

unfair classwide statutory damages award

• Yet they decline to reach the issue, confidently predicting

that the issue can be decided as a matter of due process

after a punishing award

• In other areas, courts (including the Supreme Court) have

recognized that the potential for a massive damages award

generates a hydraulic pressure to settle; no defendant can

risk even a 1 percent chance of a bankrupting or enormous

judgment

• Class certification in statutory damages cases can be the

game, set, and match.

32

Avoidance of Constitutional Questions

• Well established that statutes (and rules of

procedure) should be interpreted to avoid potential

constitutional problems when possible.

• If it would risk violating due process to authorize

class certification when statutory damages are at

stake, the answers are:

― Interpret Rule 23(b)(3)’s superiority requirement to avoid

that problem;

― Interpret statutory damages provisions to preclude class

certification

33

Impact of Spokeo v. Robins

• The Supreme Court’s decision in Spokeo, Inc. v.

Robins held that a “bare” failure to comply with a

statutory requirement “divorced from any concrete

harm,” cannot “satisfy the injury-in-fact

requirement of Article III.”

• Many class actions involve claims involving bare

statutory violations

• Spokeo allows defendants to attack such class

actions on standing grounds, although certain kinds

of statutory claims may inherently involve concrete

harm 34

Due Process

U.S. Constitution guarantees due process rights to defendants,

including companies

•Fifth Amendment (federal government): “No person shall . . .

be deprived of life, liberty, or property, without due process of

law”

•Fourteenth Amendment (states): “. . . nor shall any state

deprive any person of life, liberty, or property, without due

process of law”

35

Due Process (cont.)

BMW of North America, Inc. v. Gore (1996)

•Supreme Court holds that Due Process Clause prohibits “grossly

excessive” awards of punitive damages.

•In determining the excessiveness of an award, courts assess

whether there is a “reasonable relationship” between “the

compensatory award and the punitive award.”

•The Supreme Court in BMW and subsequent decisions has

identified certain guideposts for that inquiry, including:

― reprehensibility of the defendant’s conduct

― disparity between the actual or potential harm and the

punitive damages award,

― comparable civil penalties for the defendant’s conduct

36

Looking Ahead: Maracich v. Spears

• Issue: Whether attempts by lawyers to solicit clients qualified for

an exception to the Driver’s Protection Privacy Act.

• The Supreme Court says no.

• The dissent (by Justice Ginsburg) argues that the defendants

(ironically, plaintiffs’ lawyers) faced the potential for

“astronomical liquidated damages”: Plaintiffs sought “$2,500

in statutory damages for every letter mailed—a total of some

$200 million—and punitive damages to boot.”

• Such damages cannot possibly represent a legislative judgment

regarding average actual damage.”

37

Looking Ahead: Maracich v. Spears (cont.)

In response, Justice Kennedy’s majority opinion noted that:

•the parties had not asked the Court to decide “[w]hether the

[DPPA], after a careful and proper interpretation, would permit

an award in this amount” or, if it would,

•“whether principles of due process and other doctrines that

protect against excessive awards would come into play.”

Although dicta, this language at minimum suggests that these

questions may be worth asking.

38

Takeaways

39

Develop facts that will support these arguments:

• Defendant substantially complied with statute

• Violation resulted in nominal or no actual damages

• Legislature set statutory damages in order to encourage

individuals to pursue claims

• Plaintiffs can recover fees or pursue claims without an attorney

• Aggregate award would be disproportionate to plaintiffs’ actual

harm and/or defendant’s net worth

• Class action would not be more effective or efficient way to

compensate individuals

Takeaways

40

Many potential ways to raise these issues:

•Moving to strike class allegations early in a case

•Opposing class certification on superiority grounds

•Seeking a ruling from the district court that as a matter of law,

statute should not be interpreted to allow massive damages

― Strategic/tactical question about when in a litigation to

raise this legal argument

•Proceeding to trial and, if an adverse judgment is issued,

appealing that judgment

― This approach has obvious risks

Any Questions?

41

Archis A. Parasharami Mayer Brown LLP

1999 K Street, N.W.

Washington, DC 20006-1101

P: 202.263.3328

[email protected]

www.classdefenseblog.com

Michael P. Daly Drinker Biddle & Reath LLP

One Logan Square, Ste. 2000

Philadelphia, PA 19103-6996

P: 215.988.2604

[email protected]

www.tcpablog.com


Statutory Damage Schemes

in Consumer Protection

Class Action Lawsuits

• Telephone Consumer Protection Act

– (47 U.S.C. § 227): $500/$1500

• Fair and Accurate Credit Transactions Act

– (15 U.S.C. § 1681c(g), 1681n): $100/$1000

• ZIP Code Statutes

– California Song-Beverly Act (Cal. Civ. Code § 1747.08):

$250/$1000

43


Policy Defenses to Indemnifying

Against Statutory Damage Awards

• “Damages”

• Civil Penalty Exclusion

• Punitive Damages Exclusions/

Public Policy

44


TCPA: Penal or Punitive? • Universal Underwriters Ins. Co. v. Lou Fusz Auto.

Network, Inc., 300 F. Supp. 2d 888 (E.D. Mo. 2004),

aff’d, 401 F.3d 876 (8th Cir. 2005)

• Terra Nova Ins. Co. v. Fray-Witzer, 449 Mass. 406, 869

N.E.2d 565 (2007)

• Penzer v. Transp. Ins. Co., 545 F.3d 1303 (11th Cir.

2008)

• Motorists Mut. Ins. Co. v. Dandy-Jim, Inc., 182 Ohio

App. 3d 311, 912 N.E.2d 659 (8th Dist. 2009)

45


TCPA: Penal or Punitive?

• Std. Mut. Ins. Co. v. Lay, 2013 IL 114617,

989 N.E.2d 591

• Columbia Cas. Co. v. Hiar Holding, L.L.C.,

411 S.W.3d 258 (Mo. 2013)

46


Other Statutes: Penal or Punitive?

• Song-Beverly: Big 5 Sporting Goods Corp. v. Zurich Am. Ins. Co., 957 F.

Supp. 2d 1135 (C.D. Cal. 2013), aff’d,

635 Fed. Appx. 351 (9th Cir. 2015)

• FACTA: Whole Enchilada, Inc. v. Travelers Prop. Cas. Co. of Am., 581

F. Supp. 2d 677 (W.D. Pa. 2008)

• TCPA/Junk Texts?? • Data Breach/Stored Communications

Act and Electronic Communications

Privacy Act??

47


Violation of Statutes Exclusion

“Property damage” … or “personal and advertising

injury” arising directly or indirectly out of any action or

omission that violates or is alleged to violate:

a. The Telephone Consumer Protection Act (TCPA),

including any amendment to such law; or

b. The CAN-SPAM Act of 2003, including any amendment

of or addition to such law; or

c. Any statute, ordinance or regulation, other than TCPA or

CAN-SPAM Act of 2003, that prohibits or limits the

sending, transmitting, communicating or distribution of

material or information.

48


Violation of Law Exclusion

Recording and Distribution of Material or Information

In Violation of Law

“Personal and advertising injury” arising directly or

indirectly out of any action or omission that violates or is

alleged to violate:

(1) The Telephone Consumer Protection Act (TCPA), including any

amendment of or addition to such law; or

(2) The CAN-SPAM Act of 2003, including any amendment of or

addition to such law; or

49


Violation of Law Exclusion, cont. Recording and Distribution of Material or Information

In Violation of Law

“Personal and advertising injury” arising directly or

indirectly out of any action or omission that violates or is

alleged to violate:

(3) The Fair Credit Reporting Act (FCRA), and any amendment of

or addition to such law, including the Fair and Accurate Credit

Transactions Act (FACTA); or

(4) Any federal, state or local statute, ordinance or regulation, other

than the TCPA, CAN-SPAM Act of 2003 or FCRA and their

amendments and additions, that prohibits, or limits the printing,

dissemination, disposal, collecting, recording, sending,

communication or distribution of material or information.

50


Deductibles: Per Claim or Per Claimant

51


Anti-Aggregation Rule and

Diversity Jurisdiction

• Travelers Prop. Cas. v. Good, 689

F.3d 714 (7th Cir. 2012)

• Siding & Insulation v. Acuity Mut.

Ins. Co., 754 F.3d 367 (6th Cir.

2014)

• CE Design Ltd. v. Am. Econ. Ins.

Co., 755 F.3d 39 (1st Cir. 2014)

• Auto-Owners Ins. Co. v. Stevens &

Ricci Inc., 835 F.3d 388 (3d Cir.

2016)

52

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Aggregated Statutory Damages in Class Litigation ...media.straffordpub.com/products/aggregated-statutory...2016/11/10 · inevitably overwhelm questions common to the class. Comcast