The District of Oregon recently found that a $925,220,000 damages award was not unconstitutionally excessive, reasoning that due process does not limit the aggregate statutory damages that can be awarded in a class action lawsuit under the TCPA. Wakefield v. ViSalus, Inc., No. 3:15-cv-1857, 2020 WL 4728878 (D. Or. Aug. 14, 2020).
As we previously explained, when the trial court denied the plaintiff’s request for treble damages, the jury in the Wakefield case found that the defendant had violated the TCPA by placing 1,850,436 telemarketing calls. Id. at *1. Because the TCPA’s minimum statutory penalty is $500 per violation, the defendant faced aggregate damages of $925,220,000. Id. at *2.
The defendant argued that such an award would violate due process, as it would be “‘so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.’” Id. (quoting St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919)). The trial court recently rejected that argument, allowing a nearly billion-dollar judgment stand. Id. at *6.
The trial court found that the Ninth Circuit’s decision in Bateman v. American Multi-Cinema, Inc., 623 F.3d 708 (9th Cir. 2010) did not decide whether due process limits aggregate statutory damages in class actions. The trial court then rejected the approach of the Eighth Circuit, which focuses on the “‘absolute amount of the award, not just the amount per violation.’” Id. at *3–4 (quoting Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 910 (8th Cir. 2012)).
The trial court instead conducted a “penalty-level analysis” that considered whether the fine for a single statutory violation is constitutional. Id. at *3 (citing Williams, 251 U.S at 64). Finding that the per-violation penalty is constitutional, it declined to reduce the aggregate penalty “simply because [the defendant] committed almost two million violations.…” Id. at *4. Such a proposition would, in its view, “effectively immunize illegal conduct if a defendant’s bad acts crossed a certain threshold.” Id.
The court found support for this in the plain language of the TCPA, which “does not limit aggregate damages, does not limit the number of actions that may be brought against a single defendant, and does not suggest any circumstances under which a court could award less than the minimum statutory damages.” Id. at *5. But that of course ignores that nothing in the statute mentions aggregating damages in a class action, and it is...
