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Court Rejects Argument That A Large Damages Award Could “Annihilate” Five Guys Famous Burgers & Fries And Certifies Putative Class

April 11, 2012 4:24 PM | Posted by Williams, Amelia | Print this page
In Bush v. Calloway Consolidated Group River City, Inc. d/b/a Five Guys Famous Burger & Fries, Defendant argued that the putative class did not meet the superiority requirement of Rule 23(b)(3) because the defendant’s potential liability for violating the Fair and Accurate Credit Transactions Act (“FACTA”), $100 - $1000 per defendant, could be “enormous and completely out of proportion to any harm suffered by the plaintiff.” 2012 WL 1016871, (M.D. Fla. March 26, 2012). The Court followed the rulings of Fourth, Seventh, and Ninth Circuits and held that consideration of the potential enormity of a damages award would undermine the compensatory and deterrent purposes of FACTA. Moreover, the Court determined that at this early stage of the proceedings it would be impossible to know the number of individuals included in each class and “would be ‘unduly speculative’ to deny class certification based solely on the possibility of a large damages award.”