I receive a number of calls and consults each month that end with the question “You’re the lawyer, do I have a case?” Often, to my caller’s disappointment, the answer is “No.” Typically, the potential client doesn’t like this answer, so another 5-10 minutes is spent answering the “but what about…” or “even though…” followup questions. In many cases, the reason the potential client does not have a case is not lack of liability on the part of the wrongdoer (though sometimes that is also questionable): it is lack of definable damages. Take the recent case of Hancock v. Urban Outfitters, (D.C. Ct App. 2016).
Whitney Hancock and Jamie White made purchases with credit cards at Urban Outfitters LLC and Anthropologie, Inc. At the register, the credit card was scanned, then the sales clerks asked for Whitney or Jamie’s zip code, which they entered into their registers (not the card machines). “My zip code!” cried Jamie and Whitney. “That’s part of my address, and is protected consumer information! That violates consumer protection law!” (*Actual exclamation marks may vary.)
So they hired a lawyer, who said “Yep, it’s right here in this federal statute, asking for an address or other personal identification information breaks the law. Let’s make this a class action suit.” and sued. And quickly lost on a motion to dismiss, with the court saying “A zip code, without more, is not protected.” Their lawyer appealed. The conversation went something like this:
Appellate court: I know you want to talk about whether a zip code is a prohibited part of an address or not under consumer protection law. But first, what are your clients’ damages?
Lawyer: “The only injury … that the named plaintiffs suffered was that they were asked for their zip code when under the law they should not have been.”
Appellate Ct: Hmm, I guess the court below erred.
Appellate Court: This should have been dismissed for lack of standing because there is no real injury, not on the merits of whether a zip code is or isn’t an address. Without an actual injury, the complaint here does not get out of the starting gate.
So at the end of the day, I turn away some clients who, admittedly, have been wronged. Why? Because they have damages that are either non-existent, or are minimal enough that hiring me makes no sense. The court is not going to “punish” the other side in the manner the potential client wants, and I think it’s a disservice to let people hire me because they believe otherwise. So I don’t.