Are Civil Penalties “Damages”?

by | Mar 2, 2015 | Government Investigations and Enforcement Actions

Last August, the Fifth Circuit answered a question of first impression:  whether a trial court’s award of civil penalties under the Texas Occupations Code could be sustained where the plaintiffs neither suffered nor claimed any injury or other actual damages.  Forte v. Wal-Mart Stores, Inc., 763 F.3d 421 (5th Cir. 2014).  In a landmark decision, the court affirmed the trial court’s judgment on liability, but vacated its award of civil penalties, holding that civil penalties could not be awarded in the absence of actual damages. The question arose within the context of the Texas Optometry Act, which authorizes a person to seek a “civil penalty” not to exceed $1,000 per day for violation of the Act,[1] and the Texas Civil Practice and Remedies Code, which authorizes an award of exemplary damages “only if damages other than nominal damages are awarded,”[2] where “[e]xemplary damages,” are defined as “any damages awarded as a penalty or by way of punishment but not for compensatory purposes.”[3]  Chapter 41, however, applies only to actions “in which a claimant seeks damages relating to a cause of action.”[4] Analyzing these provisions, the Fifth Circuit held that civil penalties under the Texas Optometry Act were exemplary damages for two reasons: (1) the Texas Optometry Act expressly refers to them as a penalty, and (2) the penalties awarded were not compensatory in nature where plaintiffs disclaimed that they had suffered any actual damages.  And accordingly, because penalties are “exemplary damages,” Chapter 41 prohibits their recovery in the absence of actual damages.  Tex. Civ. Prac. & Rem. Code § 41.004(a). On rehearing, however, while the Fifth Circuit reaffirmed its holding as to liability, it vacated its decision regarding the monetary award.  Forte v. Wal-Mart Stores, Inc., No. 12-40854, 2015 WL 735782 (5th Cir. Feb. 20, 2015).  In its opinion, the Fifth Circuit certified two questions to the Texas Supreme Court.  First, do statutory penalties under Tex. Occ. Code § 351.605 constitute “damages” subject to Chapter 41 of the Texas Civil Practice and Remedies Code?   Second, if the civil penalties are “damages,” are they “exemplary damages,” precluding their recovery where a plaintiff has not suffered actual damages?  The Fifth Circuit noted that the plaintiffs could ultimately prevail in two ways: (1) if the Texas Supreme Court concludes that the “civil penalty award falls outside the tort reform context to which Chapter 41 applies,” or (2) if the civil penalty award “falls outside the definition of exemplary damages.” The Court’s answer will have a significant impact on future regulatory enforcement.  Excluding civil penalties from the reach of Chapter 41 invites litigation by removing the barrier of showing actual damages to recover, and correspondingly, actual harm to establish standing.  And if civil penalties are not “damages,” then presumably civil penalty awards are limitless? Indeed, the Court’s response is likely to spawn the litigation of numerous related issues.  If the Texas Supreme Court determines that civil penalties under the Texas Optometry Act are “exemplary damages,” will the same be true under other statutory enforcement schemes?  For example, the Texas Finance Code permits a person to recover “not less than $100 for each violation” of certain debt collection provisions, in addition to the recovery for actual damages.  Tex. Fin. Code § 392.403.  And, Texas law permits the recovery of civil penalties against persons unlawfully capturing images of a landowner’s property.  Tex. Gov’t Code Ann. § 423.006 (permitting the recovery of a civil penalty by individuals of $5,000 for all images captured in a single episode or $10,000 for disclosure of the images captured).  Will the Texas Supreme Court’s decision apply to these statutory schemes?  Of course, there are more statutes such a ruling could potentially affect.  See, e.g., Tex. Health & Safety Code § 545.702 (providing for civil penalties for unlawful disclosure of HIV test result); Tex. Gov’t Code Ann. § 442.012 (permitting resident of Texas to sue for civil penalties on behalf of state for violations of Texas Historical Commission laws or violations of the Antiquities Code of Texas);  Tex. Health & Safety Code § 162.013 (person injured by certain actions of blood banks may seek actual damages and a civil penalty of not more than $1,000). Perhaps the biggest question that will arise from the Court’s decision is whether the same principle applies in public (v. private) actions, in which the Attorney General seeks civil penalties.  If so, the number of affected statutory enforcement mechanisms is vast, with the following list comprising a small sample.  Tex. Agric. Code § 14.086; Tex. Agric. Code § 132.0715; Tex. Bus. & Com. Code § 17.47; Tex. Bus. & Com. Code § 109.006; Tex. Bus. & Com. Code § 303.153; Tex. Bus. & Com. Code § 521.151; Tex. Health & Safety Code § 146.020; Tex. Health & Safety Code § 464.017; Tex. Health & Safety Code § 754.0233; Tex. Ins. Code § 601.102; Tex. Ins. Code § 602.103; Tex. Ins. Code § 1811.203; Tex. Occ. Code § 51.352; Tex. Occ. Code § 602.3015; Tex. Occ. Code § 1804.204; Tex. Occ. Code § 1603.452. Other important questions could also arise if the Texas Supreme Court rules that civil penalties are in fact “damages,” including whether “civil penalties” recovered by the Attorney General  (under the Deceptive Trade Practices Act and others) will continue to be allocated to support legal aid under the Chief Justice Pope Act.   If the Texas Supreme Court exercises its discretionary authority to answer the Fifth Circuit, it may open the door to countless new questions.   [1]               Tex. Occ. Code §§ 351.603(b); 351.605. [2]               Tex. Civ. Prac. & Rem. Code § 41.004(a) (emphasis added). [3]               Tex. Civ. Prac. & Rem. Code § 41.001(5) (emphasis added). [4]               Tex. Civ. Prac. & Rem. Code § 41.002(a) (emphasis added).

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