IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELIZABETH PICHLER, et al. : CIVIL ACTION

:

 v. :

:

UNITE (UNION OF NEEDLETRADES, :

INDUSTRIAL & TEXTILE EMPLOYEES:

AFL-CIO), et al. : NO. 04-2841

 MEMORANDUM

Dalzell, J. August 11, 2009

Defendant UNITE has moved for summary judgment on the

issues of punitive damages and multiple statutory damages under

the Driver's Privacy Protection Act ("DPPA" or "the Act"), 18

U.S.C. §§ 2721-2725, as well as for reconsideration of our June

5, 2009 Order. The class plaintiffs state that they do not seek

multiple statutory damages, and we shall grant UNITE's motion for

summary judgment on that issue. We now resolve the remaining two

motions.

I. Factual Background

We have previously published comprehensive recitations 

of the facts related to this case, see, e.g., Pichler v. UNITE,

446 F. Supp. 2d 353, 354-365 (E.D. Pa. 2006), and will only

summarize that history here as needed. We granted summary

judgment on the question of liability under the DPPA. Id. at

373. Our Court of Appeals last year affirmed our determination

Case 2:04-cv-02841-SD Document 285 Filed 08/11/09 Page 1 of 27
of liability and remanded the case specifically to consider

whether summary judgment was warranted on the question of

punitive damages. Pichler v. UNITE, 542 F.3d 380, 387, 396-97

(3d Cir. 2008).

UNITE violated the DPPA by "tagging" Cintas employees

and their friends and family. "Tagging" is a union organizing

tactic that involves finding out one's license plate number and

then running that number through a state driver's license and

registration database to learn the owner's address. Union

organizers then approach those who live at the address to find

out if they wish to be involved in organizing their workplace. 

"Tagging" permits the union to quickly determine the addresses of

most of the employees without tipping the employer off to the

union's activities.

The class plaintiffs complain that UNITE tagged them,

and those similarly situated, during the run-up to the union's

Cintas organizing campaign and shortly thereafter. Joint Stip.

¶¶ 38-41. Between 2002 and until this lawsuit was filed in mid2004, UNITE members would tag the cars parked at Cintas's

facilities. Id. ¶ 39. Some of the people whose license plates

UNITE tagged filed suit complaining that their federally

protected privacy had been violated.

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In 2000, before the Cintas campaign began, employees of

Dillard's and the department store itself chain sued UNITE during

the preparation of an organizing campaign in Arkansas for

violating the DPPA and Arkansas state law. Id. ¶ 59. UNITE

President Bruce Raynor ultimately executed settlement agreements

on behalf of UNITE with both the Tarkington plaintiffs and

Dillard's. Id. ¶ 60, Ex. O, P. These agreements resolved all of

the claims the Tarkington plaintiffs brought against UNITE

without any admission of liability from UNITE, and obliged UNITE

to expunge any information it acquired through its tagging

efforts related to the Dillard's campaign. Id. UNITE complied

with the terms of the settlement agreements. See Pls.' Mem. Ex.

1 [Bennett Dep.] at 225:7-14, 228:17-229:21; Ex. 23 [Garren Dep.]

60:9-18. 

Jennifer Jason testified that during the 2001 Brylane

campaign in Indiana, Jason Coulter, UNITE's Assistant National

Organizing Director, and other UNITE members told her that

because of the Tarkington lawsuit UNITE "could no longer run

license plates." Id. Ex. 31 [Jason Dep.] at 50:4-15. But then

because of the slow pace of UNITE's efforts, Coulter got "special

dispensation" to tag the cars in Brylane's parking lots. Id. at

83:18. 

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Jason testified that Coulter had her and several other

UNITE members rotate through the local libraries, access the

state Web site, and conduct the address retrievals using the

username and password of an insurance company that Coulter had

set up in Wisconsin. Id. at 85:12-86:19. Jason stated that

UNITE undertook these efforts because "it was explained to me

that UNITE didn't have a legal reason for running license

plates." Id. at 90:4-6. Jason stated that she "knew we were

doing things that were, if not completely illegal, that if it

ever came out to a worker, it would seem completely suspicious

and shady. And I knew that we needed to be discreet." Id. at

80:16-21. 

Coulter testified that he and Ernest Bennett, UNITE's

International Vice-President and Director of Organizing,

discussed Tarkington and "decided to continue to use tags because

it was still on occasion a valuable tool for the union to use in

organizing workers." Pls.' Mem. Ex. 13 [Coulter Dep.] 64:7-18. 

According to Bennett, "[t]he context of the discussion was that

we needed to be discreet about using the license plate retrieval

although we should continue to, but we needed to be discreet

because of Dillard's use in a campaign that undermined our

effort." Bennett Dep. at 132:23-133:4.

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By "discreet," Bennett meant "let's don't run it high

profile and blast it out and be careful using it, because we did

not want it to be used as a tactic as Dillard used it in the

organizing campaign." Id. at 133:11-16. Coulter also told

organizers to exercise discretion. In light of Tarkington,

during the Brylane campaign, Coulter testified that he told

organizers "to be discreet" because they did not want the company

to find out what they were doing. Id. Ex. 13, Coulter Dep.

85:2-8. While some people at that campaign knew about the

Dillard's campaign, Coulter said they "didn't discuss the

Dillard's case, but we discussed that people needed to be

thoughtful and careful and discreet." Id. at 86:14-16. They

wanted to avoid having the company learn that they were preparing

an organizing campaign. Id. at 85:24-86:5.

During the run-up to the Cintas campaign, Coulter

opened a Westlaw account under the name Coulter Consulting to use

for address retrievals. Coulter Dep. at 185:4. Coulter paid for

these Westlaw charges with his credit card, and was reimbursed by

Bennett with a personal check for over $8,000. Bennett Dep. at

262:9-265:7; Pls.' Mem. Ex. 32. Before the public announcement

of the Cintas campaign, UNITE destroyed anything "used during the

prep of the campaign." Jason Dep. at 128:10-11. Jason testified

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that UNITE did so because (presciently, as it turned out) "we

understood that Cintas was a very litigious company. And that we

expected them to file lawsuits against us." Id. at 127:1-3.

II. Analysis1

Summary judgment is appropriate if there is no genuine 1

issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). In ruling

on a motion for summary judgment, the Court must view the

evidence, and make all reasonable inferences from the evidence,

in the light most favorable to the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Whenever a

factual issue arises which cannot be resolved without a

credibility determination, at this stage the Court must credit

the non-moving party's evidence over that presented by the moving

party. Id. at 255. 

The moving party bears the initial burden of proving that

there is no genuine issue of material fact in dispute. 

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S.

574, 585 n.10 (1986). Once the moving party carries this burden,

the nonmoving party must "come forward with 'specific facts

showing there is a genuine issue for trial.'" Id. at 587

(quoting Fed. R. Civ. P. 56(e)). The non-moving party must

present something more than mere allegations, general denials,

vague statements, or suspicions. Trap Rock Indus., Inc. v. Local

825, 982 F.2d 884, 890 (3d Cir. 1992); Fireman's Ins. Co. of

Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir.1982). It is not

enough to discredit the moving party's evidence, the non-moving

party is required to "present affirmative evidence in order to

defeat a properly supported motion for summary judgment." Liberty

Lobby, 477 U.S. at 257 (emphasis in original). A proper motion

for summary judgment will not be defeated by merely colorable or

insignificantly probative evidence. See id. at 249-50. Also, if

the non-moving party has the burden of proof at trial, then that

party must establish the existence of each element on which it

bears the burden. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). 

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UNITE argues that it is entitled to summary judgment

because State Farm v. Campbell, 538 U.S. 408 (2003), prevents the

class plaintiffs from recovering punitive damages in this case. 

UNITE also argues that it cannot, as a matter of law, be liable

for punitive damages because it maintained throughout this

litigation that its compilation and use of driver's license

information fell under a DPPA exception, and therefore it cannot

have acted in willful or reckless disregard of the law. We

consider each of these arguments before turning to UNITE's motion

for reconsideration of our June 5, 2009 Order.

A. State Farm v. Campbell

UNITE contends that the Supreme Court in Campbell

created a multi-factor test for assessing whether punitive

damages are appropriate, and that applying that test here results

in no possibility of punitive damages. 

In Campbell, the plaintiffs won an insurance bad faith

claim that resulted in compensatory damages of $1 million and

punitive damages of $145 million. The Supreme Court found that

based on its analysis in BMW of North America, Inc. v. Gore, 517

U.S. 559 (1996), the punitive damages award was excessive.

But Campbell is inapposite here. That case involved

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review of a punitive damages award to determine whether it was

excessive because "[t]he Due Process Clause...prohibits the

imposition of grossly excessive or arbitrary punishments on a

tortfeasor." Campbell, 538 U.S. at 416. But Campbell and Gore

only apply after a jury has awarded punitive damages. These two

cases create protections as to the amount of a punitive damages

award, but not against the imposition of such an award. If the 2

law permits a punitive damages recovery, and a genuine question

of material fact exists as to the culpability of a defendant's

conduct, then nothing in either Campbell or Gore permits a court

to take the issue of punitive damages from a jury's hands. 

The law provides for summary judgment, among other

procedural devices, to protect a defendant from a jury

considering the question of punitive damages when it should not. 

So we turn to the question of whether a reasonable jury could

To be sure, Campbell does limit the type of evidence about 2

punitive damages that may be presented at trial, and what a jury

may rely on in determining punitive damages, e.g., "[a] jury must

be instructed...that it may not use evidence of out-of-state

conduct to punish a defendant for action that was lawful in the

jurisdiction where it occurred," or "[a] defendant's dissimilar

acts, independent from the acts upon which liability was

premised, may not serve as the basis for punitive damages." 

Campbell, 538 U.S. at 422. As the parties have not briefed

whether Campbell obliges us to exclude certain of class

plaintiffs' evidence for punitive damages, we do not address that

question here.

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find that UNITE acted in such a manner as to warrant imposing

punitive damages under the DPPA.

B. Willful or Reckless Disregard of the Law

The DPPA states that the court may impose "punitive

damages upon proof of willful or reckless disregard of the law." 

18 U.S.C. § 2724(b)(2). Our Court of Appeals opined that it

could not "conceive of what willful or reckless disregard for the

DPPA could be other than where a party appreciated it was

engaging in wrongful conduct under the DPPA." Pichler v. UNITE,

542 F.3d at 397 (internal quotations omitted). 

In other civil contexts, the Supreme Court has equated

"willfulness" with "reckless disregard". Safeco Ins. Co. v.

Burr, 551 U.S. 47, 57 (2007) ("where willfulness is a statutory

condition of civil liability, we have generally taken it to cover

not only knowing violations of a standard, but reckless ones as

well"); Kolstad v. American Dental Ass'n, 527 U.S. 526, 550

(1999). Whatever the distinctions may be between willfulness and

recklessness, at the very least the former encompasses the

latter, and, therefore, the plaintiffs here would be entitled to

a jury trial on punitive damages only if they could show that

UNITE acted in reckless disregard of the law. See Safeco Ins.

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Co., 551 at 57.

Kolstad is instructive on this point. Kolstad

considered the question of what showing a plaintiff had to make

in order to recover punitive damages in an employment

discrimination lawsuit. The statute in question provided for

recovery of punitive damages if the employer acts with "malice or

with reckless indifference to the [plaintiff's] federally

protected rights." 527 U.S. at 535 (quoting 42 U.S.C. § 1981

a(b)(1)). Specifically, this "'reckless indifference' pertain[s]

to the employer's knowledge that it may be acting in violation of

federal law, not its awareness that it is engaging in

discrimination." Id. A plaintiff can recover punitive damages

if she can show that her employer "discriminate[d] in the face of

a perceived risk that its actions will violate federal law." Id.

at 536. 

It seems to us that Kolstad's teaching applies as much

to the DPPA as it does to employment discrimination. A plaintiff

may not recover punitive damages simply by showing that the

defendant violated the Act. Instead, the plaintiff must show

that when the defendant violated the DPPA it knew or should have

known that it was violating the Act.

The class plaintiffs present three sets of evidence to

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establish that UNITE knew or should have known it was violating

the DPPA. First, they display the settlement in the Tarkington

case, which they contend should have put UNITE on notice that

tagging violated the DPPA. Second, the plaintiffs point to

UNITE's concealment of its information gathering activities prior

to the announcement of the Cintas campaign, and argue that this

secretive approach is evidence of UNITE's consciousness of guilt. 

Third, they contend that UNITE continued its tagging activities

even after this lawsuit was filed. 

However compelling plaintiffs' evidence may be, it

suffers from a fatal flaw: it presupposes that one could have

known that union organizers' tagging was illegal under the DPPA

before our August 30, 2006 ruling on liability. Whether the DPPA

prohibited such tagging was, to say the least, an unsettled

question when UNITE allegedly violated that statute, and this

creates insuperable legal and factual barriers to the class

plaintiffs' recovery of punitive damages from UNITE.

1. UNITE's Actions Cannot Have Been in 

Reckless Disregard of Law that Did Not Exist

From the beginning of this case, UNITE has maintained

that tagging was either covered by one of the DPPA's exceptions,

or that a union organizing exception ought to be engrafted onto

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the statute to make it consistent with federal labor law. Before

we determined that this was not so, and before our Court of

Appeals affirmed our ruling, and before the Supreme Court denied

review, the possibility remained very real that tagging was, as 3

a matter of law, permitted under the DPPA. UNITE could not have 4

acted in reckless disregard of the law until a court definitively

ruled on what that law was. Before that time, UNITE could not

have known -- much less should have known -- that the DPPA made

union organizers' tagging illegal.

Returning to Kolstad and its progeny, employment

discrimination plaintiffs can supply evidence of an employer's

concealment of violations of federal laws to establish reckless

indifference to federally protected rights. Kolstad, 527 U.S. at

551 (Stevens, J., concurring in part, dissenting in part) ("There

are other means of proving that an employer willfully violated

the law. An employer, may, for example...conceal evidence

regarding its 'true' selection procedures because it knows they

violate federal law."). But a plaintiff provides this evidence

ultimately to show that the employer "knew the law but at the

 UNITE v. Pichler, 129 S.Ct. 1662 (2009). 3

Indeed, in four pages of vigorous dissent, Judge Sloviter 4

would have held precisely that. See Pichler, 542 F.3d at 400-03.

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same time attempted to evade it." Benjamin v. United Merchs. and

Mfrs., 873 F.2d 41, 45 (2d Cir. 1989). 

This is exactly where the analogy between this case and

employment discrimination jurisprudence breaks down. All

employers understand that federal law forbids discrimination

based on certain protected categories. An enormous edifice of

caselaw spells this out, and in excruciating detail. Thus, an

employer's attempts to conceal a supervisor's invidious

discrimination constitutes an attempt to avoid liability with

full cognizance that the supervisor's actions violated settled

law. 

Before our August 30, 2006 ruling, UNITE could not have

been on notice that its organizers' tagging violated the DPPA. 

Any assertion that the DPPA unequivocally made tagging illegal

before our ruling on liability is fanciful. The liability issues

in this case were -- every one of them -- all questions of first

impression. We specifically certified our judgment under Fed. R.

Civ. P. 54(b) for appellate review precisely because "this class

action presents novel questions in need of appellate clarity

before we begin the costly, complex and cumbersome process of

class-wide relief." Pichler v. UNITE, 457 F. Supp. 2d at 526

n.1. Indeed, the opening words of Judge Chagares's opinion for

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the Court of Appeals were, "This case presents several issues of

first impression in this court of appeals." Pichler v. UNITE,

542 F.3d at 383. 

Before our August 30, 2006 decision , one could 5

reasonably believe that the DPPA permitted UNITE's tagging

activities. This is evidenced by the fact that an appellate

judge with thirty years' distinguished experience disagreed with

our holding and would have held that the DPPA's litigation

exception covered UNITE's activities. Pichler, 542 F.3d at 401-

02 (Sloviter, J., dissenting). It is also evidenced by the 6

Eleventh Circuit's holding in Thomas v. George, Hartz, Lundeen,

Fulmer, Johnstone, King, & Stevens, P.A., 525 F.3d 1107 (11th

Cir. 2008), that claims trolling, of the kind we faulted UNITE

To be sure, the Eleventh Circuit a year earlier found our 5

earlier canvass of the DPPA "well-reasoned and persuasive," Kehoe

v. Fidelity Fed. Bank & Trust, 421 F.3d 1209, 1213 n.3 (11th Cir.

2005), but Kehoe only dealt with our reading of actual versus

liquidated damages under the DPPA as part of our analysis of

class certification issues. See Pichler v. UNITE, 228 F.R.D. 230

(E.D. Pa. 2005).

It is also worth noting that when Justices Scalia and Alito 6

concurred in the denial of the certiorari petition in Kehoe, see

Fidelity Fed. Bank & Trust v. Kehoe, 547 U.S. 1051 (2006), they

were at pains to stress that the "enormous potential liability,

which turns on a question of federal statutory interpretation, is

a strong factor in deciding whether to grant certiorari," but

that on the then-not-fully-developed record, granting the writ

"would be premature now." Id.

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for, was permitted under the DPPA. No evidence exists before 7

August 30, 2006 that could show that UNITE was or should have

been on notice that union organizers' tagging was illegal, and

therefore that UNITE knew or should have known it was violating

the DPPA.

To permit a jury to consider the question of punitive

damages would allow a jury to find UNITE acted with reckless

disregard of the law before UNITE could have been on notice that

In Thomas, defendant law firm acquired 284,000 driving 7

records from the state Department of Motor Vehicles, and used the

addresses to send out 1,000 letters to specific car owners in an

attempt to acquire evidence of a custom and practice of deceptive

acts that would later be used to bring claims under Florida

consumer protection laws. Id. at 1109, 1115. The district court

granted summary judgment, and the Eleventh Circuit affirmed,

because the defendant's activity fell under the litigation

exception. Id. at 1115.

When considering whether UNITE's activities fit under the

litigation exception, we held that

UNITE was "finding" claims, not investigating them

within the meaning of the statute. Litigation was not

"likely" in any realistic way. Indeed, UNITE accessed

the personal information of 1,758 to 2,005 putative

class members, which, as stipulated, resulted in only

thirty-one of those people either becoming involved in

litigation against Cintas or taking steps toward such

actions during the class period. In other words, UNITE

had, at best, less than a 1.8% success rate in

"finding" legal claims among the putative class

members.

Pichler, 446 F. Supp. 2d at 369.

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its activities were illegal. Such a result would defy common 8

sense. It would also deter defendants wishing to test and

clarify the law through litigation from making that legitimate

choice for fear that their actions would open them up to punitive

damages if they lost a test case under a new or unconstrued

statute. 

As a matter of law, UNITE cannot have acted with

reckless disregard of the law. 

2. Plaintiffs Cannot Establish UNITE Acted in 

Reckless Disregard of Law that Did Not Exist

The unsettled state of the law also creates insuperable

factual problems for the class plaintiffs. They must present

evidence that establishes that UNITE knew or should have known

that union organizers' tagging violated the DPPA. But none of

their evidence can do this. 

At worst, evidence regarding the Tarkington case

establishes that UNITE knew the DPPA existed. UNITE admitted no

As we have previously held, and as our Court of Appeals has 8

affirmed, liability under the DPPA requires only that the

defendant knowingly acquired the driver's license information. 

Pichler, 542 F.3d at 397. Our determination here thus does not

affect UNITE's liability under the Act since UNITE could (and

did) violate the DPPA before our August 30, 2006 ruling because

it did not need to know that it was violating the DPPA. 

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liability in the settlement agreement. Parties often settle this

way. To infer from such a settlement that a party knew that it

had in fact violated federal law would deter defendants from

settling because regardless of the terms of the settlement, the

mere fact of settlement could be used against them to infer the

requisite scienter for punitive damages in a later proceeding. 

Such deterrence would constitute an unwelcome result and one

contrary to the law's traditional embrace of settlements.

UNITE's concealment of its activities cannot establish

that UNITE knew or should have known that tagging was illegal

under the DPPA. Such evidence merely shows that, at worst, UNITE

was aware that it might be sued for its activities in preparation

for the Cintas campaign, including the union's conducting address

retrievals based on license plate numbers. But the awareness of

litigation risk is not the same as awareness that one's actions

are likely illegal. One cannot be on notice that one's actions

are illegal and act in reckless disregard of a statute that

courts had never construed on a reasonably debatable point. 

Here, tagging by union organizers was not held unequivocally

illegal under the DPPA until -- at the very earliest -- our

August 30, 2006 ruling, and therefore UNITE could not have been

on notice that tagging by its organizers was illegal until that

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date.

Class plaintiffs' evidence that UNITE continued tagging

after the plaintiffs filed the current lawsuit also does not

suffice to establish that UNITE knew or should have known it was

violating the DPPA. If UNITE continued tagging after our August

30, 2006 decision, then a jury could find UNITE acted with

reckless disregard of the law. A jury certainly could do so

after the Court of Appeals's 2008 affirmance. But the evidence

plaintiffs proffer merely consists of print-outs of license-plate

searches conducted on Westlaw that only run into 2005. Moreover,

nothing connects these searches to this litigation other than the

fact that UNITE conducted them. Without more evidence to link

these searches to tagging and the current litigation, it is at

best speculative to infer from these searches that UNITE violated

the DPPA and knew it was likely breaking the law.

Thus, the evidence class plaintiffs provide here would

not allow a reasonable jury to find that UNITE knew or should

have known the DPPA prohibited tagging by union organizers.

C. UNITE's Motion for Reconsideration

UNITE has also moved for reconsideration of our June 5,

2009 Order, specifically our determination that a jury does not

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need to determine whether to impose statutory damages on UNITE

because we have granted summary judgment on the question of

liability. UNITE argues that despite our grant of summary

judgment on the issue of liability -- now affirmed -- a jury

could nevertheless opt to award no damages and, therefore, UNITE

is entitled to a jury trial on the imposition of liquidated

damages under the DPPA. 

We will grant a motion for reconsideration only if "the

party seeking reconsideration shows at least one of the following

grounds: (1) an intervening change in the controlling law; (2)

the availability of new evidence that was not available when the

court [rendered its decision]; or (3) the need to correct a clear

error of law or fact or to prevent manifest injustice." Max's

Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). 

UNITE seeks reconsideration under (3) of Max's Seafood. 

UNITE contends that there is a right to a jury trial under the

Seventh Amendment on the issue of compensatory damages under the

DPPA. UNITE points to our Court of Appeals's decision that

punitive damages under the DPPA require a jury determination,

Pichler, 542 F.3d at 389, and argues that this holding implies --

since that Court did not explicitly say so -- that imposition of

compensatory damages should also require a jury verdict. UNITE

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then points to the DPPA's language and argues that it makes the

imposition of any damages award discretionary because the statute

states that the "court may award" a variety of damages. 18 U.S.C.

§ 2724 (emphasis added). On this basis, UNITE contends that it

is entitled to have a jury decide whether the statutory

liquidated damages award should be imposed at all. 

Our Court of Appeals held that a DPPA claim "[l]ike §

1983...sounds in tort," and that since the issue of punitive

damages was left to juries at the time the Seventh Amendment was

adopted, there is a jury trial right on that issue. Pichler, 542

F.3d at 388-89. The same could be true for compensatory damages

under the DPPA because the amount of damages for a claim in a

court of law (as opposed to equity or admiralty) is traditionally

left to the jury. See City of Monterey v. Delmonte Dunes at

Monterey, Ltd., 526 U.S. 687, 710 (1999) (holding that § 1983

action sounds in tort, it affords monetary relief and therefore

legal relief, and entitles one to a jury trial under the Seventh

Amendment); Feltner v. Columbia Pictures Television, Inc., 523

U.S. 340, 553 (1998) (holding that monetary relief is legal,

legal relief usually entitles one to a jury trial, and "[t]he

right to a jury trial includes the right to have a jury determine

the amount of statutory damages") (emphasis in original). 

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But we do not need to determine now whether UNITE has a

right to a jury trial on the issue of compensatory damages under

the DPPA. Neither the Seventh Amendment nor the DPPA requires 9

that a jury decide whether to impose liquidated damages after a

court has granted summary judgment on the issue of liability. 

Plaintiffs present no evidence of actual damages and we have

held, and the Court of Appeals affirmed, that plaintiffs are each

entitled to $2,500 in statutory liquidated damages. 

UNITE contends that the imposition of any damages must

be discretionary because the statute uses the word may. The DPPA

states that "the court may award...actual damages, but not less

than liquidated damages in the amount of $2,500." 18 U.S.C. §

2724 (emphasis added). To be sure, the use of the word may

implies discretion in imposing damages, but may can be used

synonymously with shall or must if such a reading best

effectuates the intent of Congress. Cortez Byrd Chips, Inc. v.

Bill Harbert Constr. Co., 529 U.S. 193, 198 (2000)("the mere use

of 'may' is not necessarily conclusive of congressional intent to

provide for a permissive or discretionary authority"); United

The grant of summary judgment does not deprive a party of 9

its right to a jury trial under the Seventh Amendment. Fid. &

Deposit Co. of Maryland v. United States, 187 U.S. 315, 319-21

(1902).

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States v. Rodgers, 461 U.S. 677, 706 (1983) ("The word 'may,'

when used in a statute, usually implies some degree of

discretion. This common-sense principle of statutory construction

is by no means invariable, however, and can be defeated by

indications of legislative intent to the contrary or by obvious

inferences from the structure and purpose of the

statute.")(internal citations omitted). If we read may in the

statute to make all four possible remedies discretionary, then it

would be possible for a plaintiff to establish liability and yet

not recover any damages. But we do not think that Congress

intended any such result in the DPPA.

Comparing the original bill with the enacted statute

shows that Congress did not intend to be permissive here. The

language of the compensatory damages provision in the original

bill only applied to non-willful violators and provided that

"[a]ny person or other entity (other than a State or agency

thereof) that violates this chapter shall be subject to a civil

penalty in an amount not to exceed $5,000." H.R. 3365, 103d

Cong. (Oct. 26, 1993). Although the original "shall" was turned

into a "may" in the final statute, the number of available

remedies was also increased and the description of the penalty

changed. If the change from "shall" to "may" had been the only

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alteration in the statute, it could have suggested that Congress

opted for a permissive penalty provision scheme. See Muscogee

(Creek) Nation v. Hodel, 851 F.2d 1439, 1444 (D.C. Cir. 1988),

cert. denied, 488 U.S. 1010 (1989) ("Where the words of a later

statute differ from those of a previous one on the same or

related subject, the Congress must have intended them to have a

different meaning."). But the alterations in other parts of the

statute complicate matters. Congress opted to reduce the

compensatory damages penalty, increase the number of available

remedies against civil defendants, and change "civil penalty" to

"liquidated damages." Each of these changes suggests that

Congress wanted to make the provisions of the DPPA stronger, not

more elastic or permissive. 

The use of the term "liquidated damages" is

particularly telling. Liquidated damages are damages that the

parties to a contract agree on in order to obviate the need to

calculate damages in the case of a breach. Restatement (First)

of Contracts § 339 ("a breach is uncertain and difficult of

estimation in money, experience has shown that the estimate of a

court or jury is no more likely to be exact compensation than is

the advance estimate of the parties themselves."); see also

Pierce Assoc., Inc. v. Nemours Foundation, 865 F.2d 530, 546 (3d

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Cir. 1988) ("damages are recoverable under a valid liquidated

damages provision even though no actual damages are proven as a

consequence of that breach"); Commonwealth, Dep't of Transp. v.

Mitchell, 535 A.2d 581, 587 n.2 (Pa. 1987) ("Once it has been

determined that liquidated damages are recoverable under the

contract, evidence of actual damage ... is inadmissible."). In a

contract action, the existence of a liquidated damages provision

renders a jury determination of damages unnecessary. See

Restatement (First) of Contracts § 339 ("the enforcement of such

agreements saves the time of courts, juries, parties, and

witnesses and reduces the expense of litigation"). 

In other statutory actions, liquidated damages are

often predicated on some other factual showing, and therefore a

jury determination of the predicate fact may be necessary before

liquidated damages can be granted. See, e.g., Potence v.

Hazelton Area School Dist., 357 F.3d 366, 372 (3d Cir. 2004)

(ADEA's "liquidated damages" provision, which automatically

doubles back-pay awards, only applies when a jury finds a willful

violation of the ADEA). But under the DPPA, there is no need for

any such predicate showing. In fact, after the plaintiff

establishes the defendant has violated the statute, the plaintiff

need not provide any evidence of actual injury. Pichler, 542

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F.3d at 398. 

We assume that Congress knows what terms mean,

especially terms of art like liquidated damages. See id. (citing

Pichler v. UNITE, 228 F.R.D. at 244 ("Congress's decision to use

the technical term 'liquidated damages' in the DPPA suggests that

it intended to incorporate the locution's well-understood

meaning. In other words, the reference to 'liquidated damages'

implies that a DPPA plaintiff should receive damages on the same

terms as a plaintiff who proves breach of a contract with a

reasonable liquidated damages provision.")). Here, the most

natural reading of the statute is that Congress inserted

"liquidated damages" into the statute's first penalty provision

in order to render that particular phrase mandatory, while

maintaining the permissiveness of the other three penalty

provisions. Our Court of Appeals held that the statutory damages

provisions of the DPPA "enables the court to award actual

damages, however high they might be....[but then] limits that

authority on the low end of the scale, creating a damage award

floor. While the court may award actual damages, it may not

grant an award 'less than liquidated damages in the amount of

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$2,500.'" Id. at 398 (quoting 18 U.S.C. § 2724(b)(1)). We take 10

this to mean that the lowest possible award for a violation of

the DPPA is $2,500, not zero as UNITE would have us hold. 

Our reading of the statute also comports with

Congress's overall purpose for the statute, and avoids odd

results. The DPPA was enacted to prohibit "knowingly obtaining

or using personal information, derived from a motor vehicle

record, for any impermissible purpose." H.R. 3365, 103d Cong.

(Oct. 26, 1993). Congress's stated intent was to protect

driver's license information from disclosure for an unenumerated

purpose. Without a mandatory damages provision, that protection

could be rendered meaningless because a jury could negate

damages. Of course, UNITE's contention would also effectively

read Rule 56 out of liquidated damages statutes, a consequence no

court has, to our knowledge, endorsed. 

We will therefore deny UNITE's motion for

reconsideration.

BY THE COURT:

__\s\Stewart Dalzell

This was also the precise holding in Kehoe, supra. 10

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