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handle is hein.crs/govejrk0001 and id is 1 raw text is: Congressional_______
R fesearch Service
Constitutional Limits to Congress's Statutory
Damages Authority: Takeaways from the
Ninth Circuit in Wakefield v. ViSalus
December 8, 2022
A central question any time Congress exercises its legislative power is what consequences may follow
from violating the law. For laws that create private rights of action-in other words, a law that permits an
individual to bring a lawsuit-violators may be subject to monetary liability in the form of damages.
Laws that permit recovery of damages may distinguish between actual damages, an amount meant to
approximate the monetary harm caused by the unlawful conduct that will vary case by case, and statutory
damages, a fixed amount or range of amounts set by the law. Statutory damages may provide plaintiffs an
alternative means of monetary recovery when proving actual damages is difficult. Although Congress has
broad leeway to set statutory damages, the Constitution sets limits.
In Wakefield v ViSalus, Inc., the U.S. Court of Appeals for the Ninth Circuit vacated a statutory damages
award of more than $900 million under the Telephone Consumer Protection Act (TCPA), holding that the
district court had not properly considered the award under the Due Process Clause of the Fifth
Amendment to the U.S. Constitution. The Ninth Circuit's decision does not invalidate any portion of the
TCPA, but it reflects a potential limit to statutory damages awarded under the statute. The decision may
impact other statutory schemes as well, due to a dearth of case law on the constitutionality of statutory
Damages Under the TCPA
The TCPA is the primary federal statute addressing robocalls made to residential and wireless phones. The
TCPA makes it illegal to call any wireless phone number without the recipient's consent using an
automatic telephone dialing system or an artificial or prerecorded voice. The Federal Communications
Commission (FCC) enforces the TCPA, but the statute also allows for a private right of action. A person
who receives an unsolicited robocall may sue the caller and recover either actual monetary loss or $500
per violation, whichever is greater. Each call made in violation of the TCPA is a separate violation of the
Congressional Research Service
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