District Court (Ill.) Cites Little Support for Grimes’ finding of Unconstitutionality of FACTA Penalty

In Irvine v. 233 SKYDECK, LLC, — F.Supp.2d —-, 2009 WL 347395 (N.D.Ill. 2009) Judge Leinenweber rejected a constitutional challenge to FACTA’s punitive damages provision, a challenge approved of in Grimes v. Rave Motion Pictures Birmingham, L.L .C., 552 F.Supp.2d 1302 (N.D.Ala., 2008).

In Irvine, the district court held:

Defendant’s vagueness challenge relies on the Northern District of Alabama decision Grimes v. Rave Motion Pictures Birmingham, L.L .C.,552 F.Supp.2d 1302 (N.D.Ala., 2008). The court in Grimes found that FACTA’s sliding scale for statutory damages was impermissibly vague because “one jury can decide that a particular violation calls for $100, while another jury can decide that precisely the same violation by the same vendor is worth $1,000, while other juries can, willy nilly, award something in between.” Grimes, 552 F.Supp.2d at 1306. ¶ As an initial matter, Grimes is not controlling authority and decisions of other district courts are “entitled to no more weight than their intrinsic persuasiveness merits.” Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1124 (7th Cir., 1987). The court in Grimes cited no authority for its finding that FACTA was unconstitutionally vague and all other courts that have considered a vagueness challenge to FACTA’s sliding scale of statutory damages have rejected it. See Ashby v. Farmers Ins. Co. of Oregon, —F.Supp.2d —-, No. 01-1446, 2008 WL 5424025, at *7 (D.Or., Dec. 12, 2008) (rejecting the reasoning of Grimes because FACTA “clearly sets out the duties required … and the range of penalties that may be imposed for violating those duties”); Turner v. Creative Hospitality Ventures, Inc., 588 F.Supp.2d 1347, No. 08-61040, 2008 WL 5062689, at *1 (S.D.Fla., Dec. 2, 2008) (rejecting Grimes and finding that “a reasonable jury tasked with this responsibility will be able to affix the proper amount of damages”); Smith v. MSV Sales & Services, LLC, No. 08-61436, 2008 WL 4921356, at *2 (S .D.Fla., Nov. 18, 2008) (same); Smith v. Casino Ice Cream, LLC, No. 08-61285, 2008 WL 4541013, at *2 (S.D.Fla., Oct. 9, 2008) (same). This court does not find the reasoning of Grimes persuasive and instead sides with those courts that have found that a reasonable jury tasked with determining the proper amount of damages for a FACTA violation will be able to do so within the statutory range.