Fidelity Federal Bank & Trust v. Kehoe

Cite as: 547 U. S. ____ (2006) 1
SCALIA, J., concurring
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SUPREME COURT OF THE UNITED STATES
FIDELITY FEDERAL BANK & TRUST v.
JAMES KEHOE
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT
No. 05–919. Decided March 27, 2006
The petition for a writ of certiorari is denied.
JUSTICE SCALIA, with whom JUSTICE ALITO joins, con-
curring in the denial of certiorari.
This case presents an important question of statutory
construction—whether “actual damages” must be shown
before a plaintiff may recover under the Driver’s Privacy
Protection Act, 18 U. S. C. §2724(b)(1). The Florida De-
partment of Highway Safety and Motor Vehicles sold to
petitioner, for a penny a piece, the names and addresses of
565,600 individuals in three counties who registered cars
with the DMV—the total cost was thus $5,656. Petitioner
intended to mail these individuals a solicitation to refi-
nance their automobile loans. However, because Florida—
alone among the States—had not immediately amended
its law to comply with the Act, none of these people had
given their “express consent” to the release of this infor-
mation, as the Act requires. §2721(b)(12). Petitioner now
faces a possible $1.4 billion judgment—$2,500 per viola-
tion. Because of other class actions currently pending in
Florida, involving the same question, the total amount at
stake may reach $40 billion. This enormous potential
liability, which turns on a question of federal statutory
interpretation, is a strong factor in deciding whether to
2 FIDELITY FEDERAL BANK & TRUST v. KEHOE
SCALIA, J., concurring
grant certiorari. See, e.g., R. Stern, E. Gressman, S.
Shapiro, & K. Geller, Supreme Court Practice 248 (8th ed.
2002).
Nonetheless, I concur in the denial of certiorari. A
second and equally important legal question is bound up
in this case—namely, whether petitioner can be held liable
under the Act if it did not know that the State had failed
to comply with the Act’s “express consent” requirement.
The District Court did not reach this issue since it
awarded summary judgment to petitioner on the actual
damages question. The scienter question remains open in
light of the Eleventh Circuit’s judgment reversing and
remanding the case. See 421 F. 3d 1209 (2005). Depend-
ing on the course of proceedings below, it may later be
appropriate for us to consider granting certiorari as to
either or both issues. But because I agree that our consid-
eration of the case would be premature now, I concur in
the denial of certiorari.