Abstract

To address undesirable conduct like infringing a copyright or placing a robocall, legislatures have created statutory causes of action that enable plaintiffs to file private suits. Instead of needing to prove actual damages from a defendant's conduct, many statutory causes of action allow a plaintiff to pursue a predefined damages amount per statutory violation. The damages are known as statutory damages, and their elegance lies in how they scale linearly, or one-to-one, with every violation by a defendant. But in the digital age, where automated technologies can generate millions of violations without human oversight, courts are now confronting monstrous aggregate awards composed of small individual violations performed by machines and artificial intelligence. To deal with this problem, the Ninth Circuit recently held in Wakefield v. ViSalus that an aggregate award comprised of constitutionally valid per-violation statutory damages could warrant a substantive due process reduction when the award is excessive to the underlying legislative goals.

This Note warns that the Ninth Circuit's limit in Wakefield is a "sticker shock" approach to substantive due process—one that improperly focuses on the sheer size of a final aggregate award rather than the fairness or constitutionality of the underlying individual penalties. By allowing discomfort with large class action outcomes to override other considerations, Wakefield threatens to erode statutory enforcement mechanisms, deter class action plaintiffs, and alter due process doctrine to benefit large-scale violators across the country.

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