Ross O. Little, Co-Trustee, et al., Appellants,
SunTrust Bank, Co-Trustee, Appellee.
January 31, 2019
from the Superior Court of the District of Columbia
(LIT-19-15) (Hon. Gerald I. Fisher, Trial Judge)
Michael J. Miller, pro hac vice, by special leave of court,
with whom P. Randolph Seybold was on the brief, for
appellants Henry L. Strong, Ross O. Little, John Henry
Strong, Allana Hope Strong, and Kip Clayton Strong.
Christopher A. Glaser, with whom William E. Davis was on the
brief, for appellee.
Blackburne-Rigsby, Chief Judge, and Glickman and Fisher,
Fisher, Associate Judge.
Bank filed suit against Henry L. Strong, Ross O. Little, Kip
Clayton Strong, John Henry Strong, and Allana Hope Strong
(collectively, the "Strong Family") seeking court
approval of its resignation as co-trustee of the Strong
Family Trust and a complete release from liability. In
response, the Strong Family filed counterclaims alleging
breach of contract, breach of duty of loyalty, breach of
fiduciary duty, and violation of the District of Columbia
Consumer Protection Procedures Act ("CPPA"). The
only issue before us is the trial court's grant of
summary judgment on the CPPA counterclaim. We vacate the
section of the trial court's judgment concerning the CPPA
counterclaim and remand with instructions to dismiss for lack
counterclaim, the Strong Family alleges SunTrust violated the
CPPA by making false representations about a proposed fee
increase, its right to unilaterally increase its fees, and
its right to resign as corporate trustee and obtain a
complete release of liability. The Strong Family did not pay
the higher fees, nor did it sign the broad release proffered
by SunTrust. Nevertheless, it invokes the CPPA, which
provides in part that it is "a violation of this chapter
for any person to engage in an unfair or deceptive trade
practice, whether or not any consumer is in fact misled,
deceived, or damaged thereby, including to misrepresent as to
a material fact which has a tendency to mislead." D.C.
Code § 28-3904(e) (2018 Supp.).
though Congress created the District of Columbia court system
under Article I of the Constitution, rather than Article III,
this court has followed consistently the constitutional
standing requirement embodied in Article III."
Grayson v. AT & T Corp., 15 A.3d 219, 224 (D.C.
2011) (en banc), amended, 140 A.3d 1155 (D.C. 2011).
In light of a recent Supreme Court decision, we issued an
order requesting the parties to address at oral argument
whether the Strong Family had alleged an injury-in-fact
sufficient to meet the requirement of standing. See
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1549 (2016)
("a plaintiff [does not] automatically satisf[y] the
injury-in-fact requirement whenever a statute grants a person
a statutory right and purports to authorize that person to
sue to vindicate that right").
construing the Fair Credit Reporting Act, the Supreme Court
explained that a concrete and particularized injury is
required to establish injury in fact, and bare procedural
violations are insufficient to satisfy Article III standing.
Id. at 1548-50. In addition to alleging an injury
that is concrete and particularized, a plaintiff must
establish that the injury in fact is "fairly traceable
to the challenged conduct of the defendant" and
"likely to be redressed by a favorable judicial
decision." Id. at 1543. These requirements have
been applied to claims under the CPPA.
Appellants Have Not Alleged a Concrete Injury
argument, counsel for the Strong Family cited cases to
support the proposition that incurring attorney's fees is
sufficient to establish a concrete injury. We will assume,
without deciding, that those cases are soundly reasoned, but
they are distinguishable from the case before this court. The
cases proffered by the Strong Family involved
"wrongful" and "abusive" legal
proceedings which allegedly violated the Fair Debt Collection
Practices Act (FDCPA). See Demarais, 869 F.3d at
691-93 (consumer sufficiently alleged a concrete injury based
in part on need to hire counsel to defend against allegedly
false representations in pleadings and use of unfair
litigating tactics in attempt to collect a debt that had been
extinguished); Cook, 2018 WL 1377906, at *3
(plaintiff property owner had standing to bring claim for
damages based on expenses incurred in defending against an
allegedly unlawful foreclosure ...