Albert, Cynthia v. Trans Union Corp ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3644
CYNTHIA ALBERT, JEFFREY BEADLE,
CECILIA E. COMSTOCK, et al.,
Plaintiffs-Appellants,
v.
TRANS UNION CORPORATION, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CV 4729—Robert W. Gettleman, Judge.
____________
ARGUED JUNE 6, 2003—DECIDED OCTOBER 2, 2003
____________
Before RIPPLE, KANNE, and DIANE P. WOOD, Circuit
Judges.
KANNE, Circuit Judge. In this appeal, the plaintiffs ask
this Court to reverse the district court’s determination that
injunctive relief is not available for Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681 et seq., actions brought by
private, non-governmental plaintiffs. We do not reach this
issue, however, because we lack jurisdiction to hear this in-
terlocutory appeal.
2 No. 02-3644
I. History
This is a multidistrict litigation panel case in which
nineteen individually named plaintiffs from several differ-
ent states assert a variety of claims against Chicago-based
Trans Union. Trans Union is a “consumer reporting agency”
within the meaning of the FCRA. 15 U.S.C. § 1681a(f)
(2003). Its primary business is the collection of credit in-
formation for the purpose of distributing consumer credit
reports to third-party credit grantors for use in assessing
the creditworthiness of potential customers.
Another aspect of Trans Union’s business has at various
times involved the generation of lists of consumers who
meet various credit and financial criteria. Trans Union sells
or rents these lists, along with other consumer information,
to third parties such as retailers, telemarketers, and others.
Plaintiffs allege that Trans Union has violated the FCRA
and applicable state privacy laws by unlawfully disclosing
private financial information and other confidential infor-
mation to these third parties for use in prescreening for
offers of credit or insurance and in other target marketing
schemes.
Many of plaintiffs’ concerns were addressed in a Federal
Trade Commission (“FTC”) enforcement proceeding insti-
tuted in 1992 to determine whether Trans Union’s
prescreening and target marketing business violated the
FCRA. Two orders came out of the FTC proceeding. The
first, the “prescreening order,” requires Trans Union to en-
sure that its customers who use its services for prescreening
have a permissible purpose under FCRA § 1681b. The
second, the “final order,” which went into effect April 25,
2001, requires Trans Union to cease the challenged target
marketing conduct, specifically enjoining it from “distribut-
ing or selling consumer reports, including those in the form
of target marketing lists, to any person unless [the com-
pany] has reason to believe that such person intends to use
No. 02-3644 3
the consumer report for purposes authorized under Section
[1681b] of the [FCRA].” In re Trans Union Corp., Final Or-
der, No. 9255 (FTC Feb. 10, 2000), cited in Trans Union
LLC v. FTC, 245 F.3d 809, 813 (D.C. Cir. 2001).1
Despite the FTC’s favorable ruling, plaintiffs continue to
seek monetary damages and injunctive relief on a class-
wide basis in this action. Before answering the complaint,
Trans Union filed several motions with the district court
concerning a variety of topics, including motions to dismiss
certain counts and challenges to class certification. The
district court ruled on all of these motions in a single order
dated September 10, 2002. In re Trans Union Corp. Privacy
Litig., 211 F.R.D. 328 (N.D. Ill. 2002). In their first attempt
to appeal a portion of this order, the plaintiffs challenged
the district court’s ruling that statutory damages claims
under FCRA § 1681n could not be maintained as a class
action. On October 17, 2002, we denied them permission to
appeal the class-certification ruling, noting that the class-
certification issue could be fully reviewed on appeal of the
final order of the case. Thus, the class certification issue is
not before us now.
This is the plaintiffs’ second attempt to appeal the district
court’s order. In this appeal, the plaintiffs challenge only
the district court’s determination that private plaintiffs are
not entitled to injunctive relief under the FCRA. Looking to
the text of the FCRA and the only federal appellate decision
to address the issue, see Washington v. CSC Credit Servs.,
199 F.3d 263 (5th Cir. 2000), the district court found that
because (i) the statute expressly grants to the FTC the
power to pursue injunctive relief; (ii) the statute does not
specifically grant such power to individuals; and (iii) the
1
The Final Order was stayed pending Trans Union’s appeal to
the D.C. Circuit, which upheld the FTC’s decision. See Trans
Union LLC, 245 F.3d at 819.
4 No. 02-3644
statute explicitly gives individuals the power to seek
damages, the most straightforward interpretation of the
statute was that Congress intended to provide injunctive
relief only to the FTC.
The plaintiffs filed a notice of appeal, asserting jurisdic-
tion under 28 U.S.C. § 1292(a)(1) and seeking immediate
review of the dismissal of their request for injunctive relief
under the FCRA. For the reasons set out below, we find
that we lack jurisdiction to hear this appeal.
II. Analysis
Plaintiffs acknowledge that we generally have jurisdiction
to review only final judgments of the district court, see 28
U.S.C. § 1291, but they contend that the exception provided
in 28 U.S.C. § 1292(a)(1) gives this Court jurisdiction to
review immediately the district court’s dismissal of their re-
quest for injunctive relief under the FCRA. Section 1292(a)
provides in relevant part:
[T]he courts of appeals shall have jurisdiction of ap-
peals from:
(1) Interlocutory orders of the district courts of the
United States . . . granting, continuing, modifying, re-
fusing or dissolving injunctions, or refusing to dissolve
or modify injunctions, except where a direct review
may be had in the Supreme Court.
28 U.S.C. § 1292(a) (2003).
We recently reiterated the narrow scope of the
§ 1292(a)(1) exception to the final-judgment rule, noting the
Supreme Court’s directive that “because § 1292(a)(1) was
intended to carve out only a limited exception to the final-
judgment rule . . . the statute is to be construed narrowly.”
Simon Prop. Group, L.P. v. mySimon, Inc., 282 F.3d 986,
990 (7th Cir. 2002) (citing Carson v. Am. Brands, 450 U.S.
No. 02-3644 5
79, 84 (1981)). Therefore, we approach the § 1292(a)(1) ex-
ception “somewhat gingerly lest a floodgate be opened” that
would deluge the appellate courts with piecemeal litigation.
Gardner v. Westinghouse Broad. Co., 437 U.S. 478, 481-82
(1978) (quoting Switzerland Cheese Assn. v. E. Horne’s
Market, Inc., 385 U.S. 23, 24 (1966)).
With this in mind, we turn to the requirements for juris-
diction under § 1292(a)(1). Trans Union contends that for
jurisdiction to be available under that exception, there must
be absolutely no injunctive relief remaining for the district
court to grant or deny. In other words, the district court’s
order denying the injunction must have completely fore-
closed all injunctive relief in the case or else § 1292 does not
apply and we lack jurisdiction.
As support for this position, Trans Union relies heavily on
three cases—one Supreme Court case and two cases from
this circuit. In the Supreme Court case Gardner v. Westing-
house Broadcasting Company, the district court had denied
class certification under Federal Rule of Civil Procedure
23(b) on the grounds that the plaintiff’s claim was not typ-
ical and that the case did not present questions of law or
fact common to the class. 437 U.S. at 479-80. The plaintiff
sought immediate appeal under § 1292(a)(1), arguing that
“[t]he practical effect of the denial of class certification,
is . . . to refuse a substantial portion of the injunctive relief
requested.” Id. at 480. The Supreme Court rejected the ar-
gument, holding that the denial of class certification in that
case did not have the practical effect of refusing injunc-
tive relief. Id. at 480-81. In its reasoning, the Court, in a
passage relied on by Trans Union, distinguished a previous
case, General Electric Co. v. Marvel Rare Metals Co., 287
U.S. 430 (1932), by observing: “In [General Electric], the
Court held that an order dismissing a counterclaim for an
injunction was appealable. The order, therefore, entirely
disposed of the defendant’s prayer for injunctive relief; here
[in Gardner] the order merely limits the scope of the relief
6 No. 02-3644
that may ultimately be granted.” Id. at 481. (emphasis
added). This statement, Trans Union claims, displays the
Court’s view that unless a district court’s order “entirely
disposes” of all injunctive relief, appellate jurisdiction does
not lie under § 1292(a)(1).
Trans Union similarly relies on statements in our opinion
in Holmes v. Fisher, 854 F.2d 229 (7th Cir. 1988). In that
case, the plaintiff, who was arrested without a warrant and
held for eight days before being taken to court, sought eq-
uitable relief and damages under § 1983 and sought to
represent a class of similarly situated citizens. Id. at 230.
The district court dismissed the request for equitable relief,
but left the claim for damages pending. Id. We held that
we had jurisdiction over the interlocutory appeal of the dis-
trict court’s decision to deny equitable relief under § 1292
because “[a]though the request for money is pending, a
conclusive denial of all equitable relief is appealable even
though a request for damages lives on. . . . Holmes has
suffered total defeat on his request for an injunction, and
§ 1292(a)(1) allows him an immediate appeal.” Id. at 230-
31. Based on this statement, Trans Union asserts that
Holmes makes clear that unless there is a total denial of all
injunctive relief, § 1292(a)(1) does not provide jurisdiction
over an interlocutory appeal.
Finally, Trans Union points to our decision in Samayoa v.
Chicago Bd. of Educ., 783 F.2d 102 (7th Cir. 1986). In
Samayoa, the plaintiffs, who had been denied admission to
the Walt Disney Magnet School, alleged racial discrimina-
tion by the school against Cubans, American Indians, and
Caucasians in the administration of the school’s desegrega-
tion plan. Id. at 102. Count I of the amended complaint
charged the Chicago Board of Education and others with
violation of the First, Fifth, and Fourteenth Amendments
of the U.S. Constitution. Id. As relief under this count, the
plaintiffs sought to have the defendants enjoined from en-
forcing the desegregation plan. Id. at 102-03. Count II of the
No. 02-3644 7
complaint sought relief through Title VI of the Civil Rights
Act of 1964. Id. at 103. In Count III, the plaintiffs alleged
violations of the due process and equal protection clauses
and sought an order enjoining the defendants from denying
plaintiffs admission to the school in violation of their civil
rights. Id. The district court dismissed Counts I and II, but
retained Count III. Id. at 102-03. The plaintiffs sought
interlocutory review of the dismissal of Count I pursuant to
§ 1292(a)(1). Id. at 103. We held that we lacked jurisdiction
to hear the appeal, noting that although Count I, which
sought injunctive relief, was dismissed, “Count III, which
remains for trial, involves the same factual situation,
alleges constitutional violations, and seeks essentially the
same remedy.” Id. at 104. Therefore, dismissal of Count I
did not refuse an injunction, rather it simply narrowed the
grounds of the dispute. Id.; see also Holmes, 854 F.2d at 231(discussing Samayoa).
Trans Union asserts that Samayoa, Gardner, and Holmes
together illustrate that an appeal under § 1292(a)(1) is not
available unless the district court has completely disposed
of all injunctive relief in the case. We are not convinced,
however, that these cases stand for such a strong propo-
sition. For instance, the Gardner Court, though making a
statement supporting Trans Union’s position in dicta, ac-
tually dealt with whether the denial of class certification
amounts to the denial of an injunction, and not directly
with whether an appeal could be had under § 1292 when
injunctive relief is still pending below. Gardner, 437 U.S. at
478-79. In Holmes, we merely noted that there had been
a “conclusive denial of all equitable relief;” we did not
hold that it was necessary in all cases that there be a “to-
tal defeat” on all injunctive components to qualify for
§ 1292(a)(1) review. Holmes, 854 F.2d at 230-31. And, in
Samayoa, the central reason we lacked jurisdiction was not
simply because some potential injunctive relief remained
below but rather because the relief remaining was essen-
8 No. 02-3644
tially identical to the injunctive relief that was dismissed.
Samayoa, 783 F.2d at 104. Therefore, the case law does not
necessarily require us to accept Trans Union’s interpreta-
tion of § 1292(a)(2).
Rather, we think that these cases and others interpreting
§ 1292(a)(1) represent a continuum. At one end are cases
like Holmes where our jurisdiction under § 1292(a)(1) is
secure because the district court’s order entirely negated
the equitable component in the case. At the other end are
cases where the district court’s order did not involve the
denial of any injunctive relief. At this end, § 1292(a)(1)
clearly would not provide jurisdiction. Between these poles
are the more difficult cases where plaintiffs have sought
multiple injunctions and the district court denied some of
them while leaving others pending. Samayoa falls in this
middle area, but we ultimately determined in that case that
we lacked jurisdiction because the counts that remained in
the district court and the counts that were dismissed and
appealed, essentially sought the same injunctive relief, only
under different legal theories. See Holmes, 854 F.2d at 231.
We could envision, however, a different case in this middle
area where the injunctive relief denied by the district court
and the injunctive relief still remaining before the district
court are of an entirely different nature—relating to dis-
tinct subject matter or seeking completely different injunc-
tive relief. Such a case would present a far stronger argu-
ment for finding interlocutory appellate jurisdiction than
did Samayoa.
Our task in deciding whether we have jurisdiction there-
fore involves determining where on that continuum this
case lies. We find that this case falls very close to Samayoa:
while the district court denied injunctive relief under the
FCRA, substantial and similar injunctive relief is still
available in the district court.
To determine what injunctive relief is still remaining
No. 02-3644 9
in the district court, we look to the plaintiffs’ most recently
amended complaint, the Second Amended Consolidated
Complaint, which was filed after the district court’s order
denying plaintiffs injunctive relief under the FCRA. In that
complaint, we find that still pending in the district court is
the plaintiffs’ “Seventh Cause of Action,” which seeks an
order enjoining the defendants from further violations of
California Business & Professions Code §§ 17203 and
17204, which regulates unfair business practices. At the
very least under this count, injunctive relief against de-
fendant’s complained-of actions is still available for the
California plaintiffs.
In addition to the relief under the California statute,
however, there remains injunctive relief under laws in other
states as well. For instance, in Count III of the complaint,
all the plaintiffs seek equitable and other remedies for
invasion of privacy and misappropriation “under the laws
of the states in which Plaintiffs reside.” Similarly, in Count
IV, all plaintiffs seek all appropriate relief for unjust
enrichment “under the laws of the states in which Plaintiffs
reside.”
Most importantly, in the second amended consolidated
complaint’s prayer for relief, the plaintiffs seek the same
injunctions under state- and common-law theories as they
sought in the first complaint under the FCRA.2 Such relief,
2
Specifically, in the second complaint they request:
2. As permitted by state law and the Court’s equitable pow-
ers, an order enjoining defendants from disclosing consumer
reports in the form of target marketing lists to any person
unless defendants have reason to believe that such person
intends to use such lists for a permissible purpose as required
by law;
3. As permitted by state law and the Court’s equitable pow-
(continued...)
10 No. 02-3644
now sought under state law, would provide for the same
injunctions that the district court ruled were unavailable to
the plaintiffs under the FCRA. Thus, not unlike Samayoa,
there is little difference between the injunctive relief denied
by the district court and the injunctive relief that still re-
mains below. Since essentially the same injunctive relief
is still available, the district court’s order ruling that in-
junctive relief is not available under the FCRA did not truly
deny an injunction but rather “narrowed the grounds of
dispute.” Holmes, 854 F.2d at 230.
We have recognized that in certain rare instances where
the district court’s order, while not technically refusing an
injunction, has the same “practical effect,” a plaintiff may
still obtain appellate review if there is a possibility of
irreparable harm to the plaintiffs if the appeal is delayed.
See Simon Prop. Group, 282 F.3d at 990; see also Holmes,
854 F.2d at 231. The plaintiffs here have not argued that
we have jurisdiction based on the district court’s order hav-
ing the “practical effect” of refusing an injunction. Even if
they had made this argument, we would reject it. Here,
given the fact that the FTC has already issued two orders
that address the conduct about which the plaintiffs com-
plain, it is highly unlikely that any irreparable injury will
befall the plaintiffs if this appeal is not heard immediately.
2
(...continued)
ers, an order enjoining defendants from the misappropriation
and/or invasion of the privacy rights of Plaintiffs and of the
members of the appropriate Plaintiff Classes through the dis-
closure of their private financial, credit and other confidential
information without their informed written consent;
4. As permitted by state law and the Court’s equitable pow-
ers, an order requiring defendants to notify all members of
the appropriate Plaintiffs Class of their right to be excluded
from defendants’ target marketing lists and of the manner in
which such exclusion may be sought.
No. 02-3644 11
III. Conclusion
For the foregoing reasons, we lack jurisdiction to hear this
appeal. This appeal is therefore DISMISSED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-2-03