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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
SANDY JUDD, TARA HERIVEL and
COLUMBIA LEGAL SERVICES, for
themselves, and on behalf of all similarly
situated persons,
)
)
)
)
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Plaintiffs,
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)
v.
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)
AMERICAN TEL. AND TEL. COMPANY; and )
T-NETIX, INC.,
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)
Defendants.
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)
No. 00-2-17565-5 SEA
ORDER GRANTING T-NETIX,
INC.’S MOTION FOR PARTIAL
SUMMARY JUDGMENT AS TO
APPLICATION OF STATUTORY
DAMAGES
This matter came before the Court on the motion of Defendant T-Netix, Inc. for partial
summary judgment on the legal issue of how statutory damages would be computed under RCW
80.36.530 should Plaintiffs prevail at trial. The Court considered the following materials and
conducted oral argument on the motion on July 20, 2012:
1. T-Netix, Inc.’s Motion for Partial Summary Judgment as to Application of Statutory
Damages;
2. AT&T’s Response to T-Netix’s Motion for Partial Summary Judgment as to
Application of Statutory Damages;
_____________________________________________________________________________________________
ORDER GRANTING MOTION
King County Superior Court
FOR PARTIAL SUMMARY JUDGMENT - 1
Maleng Regional Justice Center
401 – 4th Avenue North
Kent, Washington 98032-4429
(206) 296-9105
3. Plaintiffs’ Response to T-Netix’s Motion for Partial Summary Judgment as to
Application of Statutory Damages;
4. T-Netix, Inc.’s Reply in Support of Motion for Partial Summary Judgment as to
Application of Statutory Damages;
5. Plaintiffs’ Response to AT&T’s Due Process Argument re: Statutory Damages;
6. T-Netix’s Supplemental Reply in Support of Motion for Partial Summary Judgment
as to Application of Statutory Damages (Due Process Issue);
7. AT&T’s Reply to Due Process Argument re Statutory Damages; and
8. AT&T’s Compendium of Cases for Due Process Reply.
Based on the foregoing, the Court GRANTS T-Netix’s motion for partial summary
judgment and concludes that, if Plaintiffs prove their claims at trial, the statutory damages of
$200 under RCW 80.36.530 will be assessed on a per-consumer basis. The Court’s conclusion is
based on the following analysis:
RCW 80.36.530 provides in pertinent part:
… Acts in violation of RCW 80.36.510, 80.36.520, or 80.36.524 are not
reasonable in relation to the development and preservation of business, and
constitute matters vitally affecting the public interest for the purpose of applying
the consumer protection act, chapter 19.86 RCW. It shall be presumed that
damages to the consumer are equal to the cost of the service provided plus two
hundred dollars.
Plaintiffs contend that this provision allows them to recover $200 per violation, i.e., per collect
call in which the required rate disclosure was not made. Defendants T-Netix and AT&T contend
that this provision only allows Plaintiffs to recover $200 per consumer, regardless of the number
of collect calls that consumer received.
The differing legal interpretations are of great
importance to the parties because the financial exposure T-Netix could face under Plaintiffs’
interpretation of RCW 80.36.530 would exceed $43 million and the financial exposure AT&T
could face would exceed $600 million.
_____________________________________________________________________________________________
ORDER GRANTING MOTION
King County Superior Court
FOR PARTIAL SUMMARY JUDGMENT - 2
Maleng Regional Justice Center
401 – 4th Avenue North
Kent, Washington 98032-4429
(206) 296-9105
When called on to interpret a statute, the court’s primary obligation is to give effect to the
legislature’s intent. Restaurant Development, Inc. v. Cananwill, Inc., 150 Wn.2d 674, 681–82,
80 P.3d 598 (2003). If the legislature uses certain language in one statute and uses different
language in another statute, that fact evidences a difference in legislative intent. In re Forfeiture
of One 1970 Chevrolet Chevelle, 166 Wn.2d 834, 842, 215 P.3d 166 (2009).
The legislature has, on many occasions, enacted laws imposing statutory damages for
consumer law violations and has specified that these damages are to be assessed on a “per
violation” basis. See RCW 80.36.390(6) (any person aggrieved by repeated unwanted telephone
solicitations may bring a civil action to recover statutory damages “of at least one hundred
dollars for each individual violation of this section”); RCW 19.190.090 (any person injured by
misleading email solicitations may bring a civil action and “seek up to five hundred dollars per
violation, or actual damages, whichever is greater”); RCW 19.270.060 (a provider of computer
software or owner of a web site or trademark who is adversely affected by computer spyware
may bring an action to recover “either actual damages or one hundred thousand dollars per
violation, whichever is greater”); RCW 9.26A.140 (any person who unlawfully sells telephone
records is subject to legal action for actual damages or “liquidated damages of five thousand
dollars per violation, whichever is greater”).
There are also several instances in which the legislature chose not to use the “per
violation” language. See RCW 80.36.540 (damages to the recipient of an unsolicited fax “are
five hundred dollars or actual damages, whichever is greater”); RCW 19.320.040 (foreign
worker not provided mandatory labor law disclosures from employer shall receive “an amount
between two hundred dollars and five hundred dollars, or actual damages, whichever is greater”);
RCW 19.162.070 (court may award “the greater of three times the actual damages sustained by
_____________________________________________________________________________________________
ORDER GRANTING MOTION
King County Superior Court
FOR PARTIAL SUMMARY JUDGMENT - 3
Maleng Regional Justice Center
401 – 4th Avenue North
Kent, Washington 98032-4429
(206) 296-9105
the person or five hundred dollars” in an action alleging deceptive use of pay-per-call
information delivery services).
The Court presumes that the legislature did not intend to impose a per violation penalty
under RCW 80.36.530 because it did not use any words indicating such an intent. Had the
legislature so intended, it would have inserted the words “per violation” or “for each violation”
into the statute. The legislature did not use these words when it established the statutory
damages in RCW 80.36.530 and this is, in the Court’s opinion, dispositive of the issue.
The parties, in their briefing, focused on the applicability of the rule of lenity to the
statutory construction process and on the Defendants’ due process challenge to the Plaintiffs’
“per violation” interpretation of the statute.
Because the Court finds the Defendants’
interpretation of RCW 80.36.530 to be the correct one, the Court sees no need to reach the rule
of lenity or constitutional issues.
T-Netix’s motion for partial summary judgment is GRANTED. If Plaintiffs prove their
claims at trial, the statutory damages of $200 under RCW 80.36.530 will be assessed on a perconsumer basis.
Dated this 6th day of August, 2012.
__\s\ (E-FILED)________________
Judge Beth M. Andrus
King County Superior Court
_____________________________________________________________________________________________
ORDER GRANTING MOTION
King County Superior Court
FOR PARTIAL SUMMARY JUDGMENT - 4
Maleng Regional Justice Center
401 – 4th Avenue North
Kent, Washington 98032-4429
(206) 296-9105
King County Superior Court
Judicial Electronic Signature Page
Case Number:
Case Title:
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Document Title:
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00-2-17565-5
JUDD ET ANO VS AMERICAN TELEPHONE &
TELEGRAPH CO ET AL DBA
ORDER
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Signed by Judge: Beth Andrus
8/7/2012 9:00:00 AM
Date:
Judge Beth Andrus
This document is signed in accordance with the provisions in GR 30.
0820F7E3971DF4A86FBD08B589DF523114D8C0EF
Certificate Hash:
Certificate effective date: 6/18/2012 12:55:35 PM
7/12/2014 12:55:35 PM
Certificate expiry date:
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Certificate Issued by:
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