9th Circuit Refuses to Reduce $925M TCPA Damage Award

The District of Oregon lately discovered {that a} $925,220,000 damages award was not unconstitutionally extreme, reasoning that due course of doesn’t restrict the mixture statutory damages that may be awarded in a category motion lawsuit beneath the TCPA. Wakefield v. ViSalus, Inc., No. 3:15-cv-1857, 2020 WL 4728878 (D. Or. Aug. 14, 2020).

As we beforehand defined, when the trial courtroom denied the plaintiff’s request for treble damages, the jury within the Wakefield case discovered that the defendant had violated the TCPA by putting 1,850,436 telemarketing calls. Id. at *1. As a result of the TCPA’s minimal statutory penalty is $500 per violation, the defendant confronted mixture damages of $925,220,000. Id. at *2.

The defendant argued that such an award would violate due course of, as it will be “‘so extreme and oppressive as to be wholly disproportioned to the offense and clearly unreasonable.’” Id. (quoting St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919)). The trial courtroom lately rejected that argument, permitting a virtually billion-dollar judgment stand. Id. at *6.

The trial courtroom discovered that the Ninth Circuit’s determination in Bateman v. American Multi-Cinema, Inc., 623 F.3d 708 (ninth Cir. 2010) didn’t resolve whether or not due course of limits mixture statutory damages in school actions. The trial courtroom then rejected the strategy of the Eighth Circuit, which focuses on the “‘absolute quantity of the award, not simply the quantity per violation.’” Id. at *3–4 (quoting Capitol Data, Inc. v. Thomas-Rasset, 692 F.3d 899, 910 (eighth Cir. 2012)).

The trial courtroom as an alternative carried out a “penalty-level evaluation” that thought of whether or not the superb for a single statutory violation is constitutional. Id. at *3 (citing Williams, 251 U.S at 64). Discovering that the per-violation penalty is constitutional, it declined to scale back the mixture penalty “just because [the defendant] dedicated nearly two million violations.…” Id. at *4. Such a proposition would, in its view, “successfully immunize unlawful conduct if a defendant’s dangerous acts crossed a sure threshold.” Id.

The courtroom discovered assist for this within the plain language of the TCPA, which “doesn’t restrict mixture damages, doesn’t restrict the variety of actions which may be introduced in opposition to a single defendant, and doesn’t recommend any circumstances beneath which a courtroom may award lower than the minimal statutory damages.” Id. at *5. However that in fact ignores that nothing within the statute mentions aggregating damages in a category motion, and it’s abundantly clear from the legislative historical past that Congress believed that claims can be pursued individually in small claims courtroom. The courtroom discovered in any other case, presuming from little greater than the 12 months of the statute’s passage that Congress will need to have “anticipated class actions to be accessible when it enacted the statutory damages provision of the TCPA.” Id.

The courtroom concluded by holding that, even when due course of did require that the mixture award be lowered, the defendant’s proposed methodology of discount—to scale back damages to not more than $1 per violation—can be arbitrary. Id. The courtroom famous that the Defendant had not directed it to any Ninth Circuit authority on the way to cut back damages which might be unconstitutionally extreme. Id. That ought to not have been stunning, although, given the courtroom’s earlier conclusion that there was no precedent on this explicit level. The courtroom then famous that the Seventh Circuit has instructed its decrease courts to “take into account the hurt attributable to the defendant’s violations” however discovered that the defendant on this case had merely insisted that this was “barely a $2 million greenback case.” Id. at *6. As a result of the defendant had not tied that $2 million determine “to the hurt suffered by class members,” the courtroom discovered that it had no document from which it may cut back damages in a principled method. Id.

This case serves as yet one more cautionary story concerning the doubtless catastrophic mixture damages which might be accessible in school actions beneath the TCPA and different “gotcha” statues.