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Taha v. County of Bucks

United States Court of Appeals, Third Circuit

July 6, 2017

DARYOUSH TAHA, Individually and on Behalf of All Others Similarly Situated
v.
COUNTY OF BUCKS; BUCKS COUNTY CORRECTIONAL FACILITY; CITIZEN INFORMATION ASSOCIATES LLC, d/b/a Mugshotonline.com, d/b/a bustedmugshots.com; UNPUBLISH LLC, d/b/a Mugshots.com COUNTY OF BUCKS; BUCKS COUNTY CORRECTIONAL FACILITY, Appellants

          Argued March 15, 2017

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-12-cv-06867) Honorable Wendy Beetlestone, District Judge

          Frank A. Chernak, Burt M. Rublin [Argued] Ballard Spahr Attorneys for Appellants

          Alan E. Denenberg, Abramson & Denenberg, Robert J. LaRocca [Argued], Jonathan Shub, Kohn Swift & Graf Attorneys for appellee

          Crystal H. Clark, McNees Wallace & Nurick Attorneys for Amicus Curiae County Commissioners Association of Pennsylvania

          Janet F. Ginzberg Attorney for Amicus Curiae Community Legal Services

          BEFORE: GREENAWAY, JR., SHWARTZ, and GREENBERG, Circuit Judges

          OPINION

          GREENBERG, Circuit Judge.

         I. INTRODUCTION

         Defendant-appellants Bucks County, Pennsylvania, and the Bucks County Correctional Facility bring this interlocutory appeal of the District Court's May 4, 2016 order certifying a class to pursue claims against them brought by plaintiff-appellee Daryoush Taha, the class representative. In 2011, defendants created a publicly searchable "Inmate Lookup Tool" into which they uploaded information about tens of thousands of people who had been held or incarcerated at the Bucks County Correctional Facility since 1938. Taha subsequently filed suit against the defendants who are appellants on this appeal, and to whom we are referring when we use the term "defendants, " and certain other defendants that we need not identify alleging that they had publicly disseminated information on the internet in violation of the Pennsylvania Criminal History Record Information Act ("CHRIA"), 18 Pa. Cons. Stat. § 9102 et seq., about his expunged 1998 arrest and incarceration in Bucks County. The Court granted Taha's motion for partial summary judgment on liability on March 28, 2016, before certifying a plaintiffs' punitive damages class of individuals about whom information of their incarceration had been disseminated online. At that time the Court found that the only remaining question of fact was whether defendants had acted willfully in disseminating the information. After the Court certified the class by order of May 4, 2016, we granted defendants permission on July 5, 2016, to bring this interlocutory appeal pursuant to Fed.R.Civ.P. 23(f).

         Defendants claim that the District Court erred in granting Taha partial summary judgment on liability before ruling on his motion seeking class certification. They also assert that the Court erred on a number of grounds in certifying a punitive damages class. In this regard, defendants challenge Taha's standing, the Court's holding that punitive damages can be imposed in a case in which the plaintiff does not recover compensatory damages, the Court's holding that punitive damages can be imposed on government agencies, and the Court's finding that the predominance requirement under Federal Rule of Civil Procedure 23(b)(3) had been met so that a class could be certified. For the reasons that follow, we will affirm the Court's May 4, 2016 order granting class action certification.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual History

         On September 29, 1998, the police in Bensalem Township in Bucks County arrested Taha and charged him with harassment, disorderly conduct, and resisting arrest. J.A. At 972a. After his arrest, the police transported him to the Bucks County Correctional Facility, where his booking photo was taken, and where he was held for several hours before his release. Id. at 823a-25a.

         In the ensuing criminal proceedings, all counts except for one were dismissed. Though Taha maintained his innocence on the remaining count he agreed to participate in an Alternative Rehabilitative Disposition program for its resolution. See id. at 963a. When Taha completed the program a year later, the Court of Common Pleas of Bucks County issued an order directing the expungement of Taha's "arrest record and other criminal records." Id. at 964a-65a. In May and June 2000, the Bensalem Township Police Department, the Pennsylvania State Police Central Repository, and the Federal Bureau of Investigation all confirmed that Taha's record had been expunged. Id. at 970a-74a.

         Over a decade later in January 2011, defendants created a public "Inmate Lookup Tool" on the internet using information from their Offender Management System. Id. at 578a-79a. This database contained information on both current and former inmates at the Bucks County Correctional Facility. Id. at 1386a. Information was published online between January 2011 and June 2013 about individuals who had been held or incarcerated at the Bucks County Correctional Facility from 1938 onward, a total of 66, 799 people.[1] Id. at 422a, 1381a-86a.

         The information on Taha uploaded onto this publicly available online search tool included his color booking photograph from the shoulders up, sex, date of birth, height, weight, race, hair color, eye color, citizenship, date of his commission to the facility, date of his release from the facility, case number for the offense charged, and "DC, HARASS" as the charge information. Id. at 949a-50a. The uploaded information listed his "current location" as the "MAIN" facility in "BUCKS COUNTY." Id. at 949a. There were also several unfilled fields, including those for marital status, FBI number, state ID, alias information, detainer information, and the grade, date, and degree of offense. Id. at 949a-50a. The above uploading did not complete the dissemination of information about Taha as a number of private companies that crawl the internet to collect photographs and data found Taha's photograph and other information about him and republished it on their websites.[2] Id. at 1078a-79a, 1081a-83a, 1785a.

         Taha discovered in the fall of 2011 that information about his several hours of incarceration at the Bucks County Correctional Facility in 1998 was publicly accessible on the internet despite the expungement of his record. Id. at 731a-33a. Taha and his wife claim that they both expressed sadness, frustration, outrage, and embarrassment over the availability of the expunged arrest information online. Id. at 727a-31a. Taha testified at a deposition that his mother stated that his arrest and incarceration were "shameful" and that he had "tarnish[ed] the family name." Id. at 747a. He also testified to losing weight and having difficulty sleeping after he discovered the information on the internet. Id. at 794a-96a. He was concerned that his previous employers or prospective future employers might see this information. Id. at 799a-800a. But Taha does not claim that he suffered any pecuniary loss as a result of the publication of his booking photograph and the other information.

         B. Procedural History

         Taha filed his suit on December 12, 2012, under section 9121 of CHRIA seeking injunctive relief and actual and punitive damages under CHRIA section 9183 against defendants based on the internet release of his "criminal history record information" stemming from his expunged 1998 arrest. After several years of litigation, the parties filed cross-motions for summary judgment. On March 28, 2016, the District Court denied defendants' motion for summary judgment and granted Taha's motion for partial summary judgment on liability under CHRIA. Defendants subsequently moved to certify the order entered on the motions for summary judgment for interlocutory appeal but the Court denied that motion and granted a motion that Taha filed for class certification on his punitive damages claim on May 4, 2016. The Court certified a class composed of "[a]ll persons whose criminal history record information was made available on the BCCF Inmate Lookup Tool." Id. at 12a.

         III. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW

         The District Court had jurisdiction over Taha's action pursuant to 28 U.S.C. § 1332. On July 5, 2016, pursuant to 28 U.S.C. § 1292(e) and Federal Rule of Civil Procedure 23(f), we granted defendants' motion to allow an interlocutory appeal of the class certification order. Thus, we have jurisdiction to consider defendants' appeal.

         "We review a class certification order for abuse of discretion, which occurs if the district court's decision 'rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.'" In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir. 2008) (quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 165 (3d Cir. 2001)).

         IV. DISCUSSION

         Defendants challenge the District Court's class certification order on both procedural and substantive grounds. First, they maintain that the Court erred by granting Taha's motion for partial summary judgment on liability prior to deciding Taha's motion seeking class certification. Second, they challenge the certification decision. Taha responds that defendants waived their argument about the order of the Court's decisions and that defendants' substantive contentions are incorrect. Taha also argues that the Court did not abuse its discretion in certifying a class for the purpose of determining whether defendants acted "willfully" in violating CHRIA to the end that defendants could be subject to punitive damages.

         A. One-Way Intervention

         Defendants first claim that the District Court procedurally erred when it granted Taha's motion for partial summary judgment before it ruled on Taha's motion for class certification. Defendants argue that the Court's order of decision-making violated the rule against one-way intervention dealing with the availability of class certification under Federal Rule of Civil Procedure 23 after the merits of a case have been decided. The Supreme Court has outlined the history and reasoning behind the rule against one-way intervention:

Rule 23 as it stood prior to its extensive amendment in 1966 . . . contained no mechanism for determining at any point in advance of final judgment which of those potential members of the class claimed in the complaint were actual members and would be bound by the judgment. Rather, '[w]hen a suit was brought by or against such a class, it was merely an invitation to joinder - an invitation to become a fellow traveler in the litigation, which might or might not be accepted.' A recurrent source of abuse under the former Rule lay in the potential that members of the claimed class could in some situations await developments in the trial or even final judgment on the merits in order to determine whether participation would be favorable to their interests. If the evidence at the trial made their prospective position as actual class members appear weak, or if a judgment precluded the possibility of a favorable determination, such putative members of the class who chose not to intervene or join as parties would not be bound by the judgment. This situation - the potential for so-called 'one-way intervention' - aroused considerable criticism upon the ground that it was unfair to allow members of a class to benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one. The 1966 amendments were designed, in part, specifically to mend this perceived defect in the former Rule and to assure that members of the class would be identified before trial on the merits and would be bound by all subsequent orders and judgments.

Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 545-47, 94 S.Ct. 756, 762-63 (1974) (footnotes and citations omitted).

         The 1966 amendments changed Rule 23 to state that a decision on class certification was to be made "as soon as practicable after commencement of an action." Fed.R.Civ.P. 23(c)(1) (1966). But in 2003, Rule 23 was again amended to state that any class certification decision should be made "[a]t an early practicable time after a person sues or is ...


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