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Federal Appellate Panel Sends TJX Case Back To Court, Move Likely To Cost TJX Millions More
Furthermore, the argument before the panel suggested that TJX’s lack of security was “unfair” under the Federal Trade Commission Act, partially reinforced because the FTC acted against TJX. The panel found the FTC action argument persuasive.
But the panel also got into an argument about what is needed to establish sufficient wrongdoing. TJX had argued that “either deliberate wrongdoing or personal benefit” was needed. The panel disagreed. (See the full text of the panel’s decision.)
“Perhaps policy might make this a desirable stopping point, given the vagueness of the unfairness standard and availability of a private damages remedy unchecked by agency prudence. But Massachusetts decisions do not say that deliberate wrongdoing or self-benefit are required. Seemingly systematic recklessness may suffice. Knowing so little about the extent of TJX’s or Fifth Third’s fault at the complaint stage, we think that, at best, TJX’s argument is one that would have to await discovery and perhaps a summary judgment motion.”
The panel also ruled that having any location in Massachusetts is sufficient for jurisdiction, something TJX had challenged.
-Marc
April 2nd, 2009 at 8:53 pm
So TJX had to get people in by giving them a discount if the spent MORE money with them in the last round. Now the lawyers (sorry, ‘attorneys’) are after more fees.
Sheesh.