Little v. SunTrust Bank

          Argued January 31, 2019

          Appeal 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.

          Before Blackburne-Rigsby, Chief Judge, and Glickman and Fisher, Associate Judges.

          Fisher, Associate Judge.

         SunTrust 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.^[1] We vacate the section of the trial court's judgment concerning the CPPA counterclaim and remand with instructions to dismiss for lack of standing.^[2]

         I. Background

         In its 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.).

         II. Standing Requirements

         "[E]ven 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").

         In 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.^[3]

         III. Appellants Have Not Alleged a Concrete Injury

         At oral argument, counsel for the Strong Family cited cases to support the proposition that incurring attorney's fees is sufficient to establish a concrete injury.^[4] 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 ...