"Trivial Harm" Class Actions and the de minimus Doctrine

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At least one federal district court in Illinois appears to be taking a hard line against what might be described as "trivial harm" class actions.

In a February 23, 2012 decision in Old Town Pizza of Lombard, Inc. v. Corfu-Tasty Gyro's, Inc<., 1:11-cv-6959 (N.D. Illinois), the court invoked the de minimus doctrine to dismiss putative class claims where only insignificant damages had been alleged, and rejected the suggestion that an otherwise insignificant injury could be aggregated via class allegations in order to meet the harm threshold for a viable individual claim.

Judge John W. Darrah rendered a decision dismissing two of the plaintiff's claims, for conversion and violation of an Illinois consumer protection statute — which were based on the defendant's alleged sending of a single unsolicited fax — because the plaintiff did not allege "substantial injury to itself." The court dismissed the claims despite the plaintiff's citation to cases within the district that had previously held that putative class claims cannot be defeated by the de minimus doctrine, "so long as those [small individual] losses can plausibly be inferred to be substantial in the aggregate." Centerline Equip. Corp. v. Banner Pers. Serv., Inc., 545 F.Supp.2d 768 (N.D. Ill. 2008).

Instead, noting that the plaintiff had "only alleged damage from conversion for a single sheet of paper and the toner used to produce the message on the paper," the court rejected the reasoning in Centerline, observing that "a plaintiff must first have a valid cause of action in his own right before he can proceed to represent a class." Stonecrafters, Inc. v. Foxfire Printing and Packaging, Inc., 392 F.3d 939 (7th Cir. 2004). According to Judge Darrah, "the loss of a piece of paper and toner . . . is trivial and insufficient to support a conversion claim," and "[p]ursuing a class action does not save an otherwise insufficient claim from dismissal . . . ."

The court further held that the de minimus doctrine also barred the claim brought under the Illinois Consumer Fraud and Deceptive Practices Act (the "ICFA"), which had been interpreted to require an allegation of "substantial injury" — a threshold plainly not met by allegations that the court had already found raised the specter of only de minimus harm. As an aside, the court also noted that even the "aggregate harm is still not substantial in this present case," since like the plaintiff in Stonecrafters, "a thousand people suffering damage in the amount of a couple of pennies only amounts to an aggregate harm of $20." Stonecrafters at 617. The plaintiff in Old Town Pizza had alleged a class of only 39 fax recipients.

So, while the class action may have been designed for the express purpose of allowing claims of small injury to be heard in the aggregate, it appears that the federal courts may be increasingly willing to examine at the dismissal stage not merely whether there has been any harm at all, thereby giving rise to Article III standing, but also whether the significance of the harm alleged is sufficient in magnitude to sustain a viable individual claim in the first place. At least according to Judge Darrah, if the harm to the individual is trivial, purporting to represent a class will do nothing to save the claim.