Last year, Overlawyered was the first to report that Judge William Acker in the Northern District of Alabama had held the Fair and Accurate Credit Transactions Act (FACTA), which provides unlimited damages of $100-$1000 per violation for trivial technical violations of printing too many numbers on a credit card receipt, unconstitutional. Other judges have refused to follow his lead, and last week the Eleventh Circuit reversed the decision, rejecting the facial challenge to the statute, but leaving open the possibility that the statute would be unconstitutional as applied in a particular case. (Harris v. Mexican Specialty Foods, No. 08-13510; h/t R.M.)
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Not to quibble, but I think you run the risk of considerable overstatement when you say that the court left “open the possibility that the statute would be unconstitutional as applied in a particular case.” It’s true that the court didn’t reach the as-applied question, but that was only because it wasn’t ripe. The court’s reasoning–that FCRA statutory damages are not punitive in nature in the first place and therefore aren’t subject to review even under the extremely deferential Williams standard, let alone State Farm-Gore–effectively dooms any as-applied excessiveness challenge.
So….is this a good thing or a bad thing?
Have to say, Judge Acker is my alltime favorite federal judge. If you remember, he also issued those orders in the Rigsby whistleblower cases that basically blew that thing up.
Always uses his common sense, and he can be brutal to counsel, but overall a brilliant guy-one of the only district judges left who actually believes in the common law and disdains boneheaded statutes.