Cohen v. Office Depot, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
___________________________ ELEVENTH CIRCUIT
02/24/2000
THOMAS K. KAHN
No. 98-4787 CLERK
___________________________

D.C. Docket No. 97-3611-Civ-JAL

CHERYL COHEN, on behalf of herself and
others similarly situated,
Plaintiff - Appellant,

versus

OFFICE DEPOT, INC., a Florida corporation,
Defendant - Appellee.

____________________________

Appeal from the United States District Court
for the Southern District of Florida
____________________________
(February 24, 2000)

ON PETITION FOR REHEARING AND
SUGGESTION OF REHEARING EN BANC

Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.
__________________
*Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting
by designation.

CARNES, Circuit Judge:
 In our prior opinion in this case, we held that Florida Statute § 768.72

conflicts with and must yield to the “short and plain statement” rule contained in

Federal Rule of Civil Procedure 8(a)(3), and as a result a Florida plaintiff in federal

court because of diversity jurisdiction need not obtain leave of court before

pleading a request for punitive damages. Cohen v. Office Depot Inc., 184 F.3d

1292, 1295 - 99 (11th Cir. 1999) (“Cohen I”). We adhere to and leave that part of

our earlier opinion intact.1

Relying on Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1358-59

(11th Cir. 1996), we also held that “in a class action lawsuit punitive damages may

be aggregated to satisfy the amount-in-controversy requirement for each class

member,” at least “where state law provides that an award of punitive damages is

for the ‘public benefit’ or ‘collective good,’ and the award would reflect ‘the

wrongfulness of the defendant’s course of conduct as a whole.’” Cohen I, 184

F.3d at 1295 (quoting Tapscott, 77 F.3d at 1358). Combining our two holdings, we

concluded that the complaint satisfied the amount in controversy requirement

because it requested $10,000,000 in punitive damages for the entire class of

approximately 39,000 Office Depot catalogue customers. See id. at 1299.

1
For a full recitation of the relevant facts of this case, see Cohen I, 184 F.3d at 1293-94.

2
 In its petition for rehearing, Office Depot has belatedly pointed out the

tension between the Tapscott decision, on which we relied in our earlier opinion in

this case, and the decision in Lindsey v. Alabama Telephone Co., 576 F.2d 593

(5th Cir. 1978). Of course, pre-split or “Old Fifth” decisions such as Lindsey are

binding on us, see Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.

1981), and where two prior panel decisions conflict we are bound to follow the

oldest one. See United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en

banc) (“It is the firmly established rule of this circuit that each succeeding panel is

bound by the holding of the first panel to address an issue of law, unless and until

that holding is overruled en banc, or by the Supreme Court.”) (internal quotation

marks and citation omitted); United States v. Dailey, 24 F.3d 1323, 1327 (11th

Cir. 1994) (where there is an intracircuit conflict of authority, “the earliest panel

opinion resolving the issue in question binds this circuit until the court resolves the

issue en banc”) (internal quotation marks and citation omitted).

For reasons we will soon discuss, we conclude that Tapscott’s holding about

aggregation of punitive damages is inconsistent with the earlier holding on the

same legal issue in Lindsey, and accordingly we must follow Lindsey. Doing so,

we conclude that the total of $10,000,000 in punitive damages that was pleaded for

the class of 39,000 members in this case is insufficient to satisfy the $75,000

3
amount in controversy requirement. This conclusion requires us to address

plaintiff, class-representative Cohen’s remaining arguments involving alternative

theories for satisfying the amount in controversy requirement, which are that it is

satisfied because of the value of the requested injunctive relief, and because of the

amount of attorney fees due if the class prevails. We will discuss those issues in a

later part of this opinion, but we begin with a discussion of the inconsistency of

Tapscott (and our own prior opinion following it) with Lindsey.

I. THE CONFLICT BETWEEN LINDSEY AND TAPSCOTT REGARDING
AGGREGATION OF PUNITIVE DAMAGES

To avoid adding confusion to conflict, we first explain why referring to the

“aggregation” of punitive damages in the context of a class action can be a bit

misleading. In this case, as in Lindsey and Tapscott, the punitive damages claim is

a single claim on behalf of the entire class; it is not the sum total of 39,000

individual punitive damages claims. Because each class member could have

sought punitive damages in individual suits, courts sometimes phrase the question

as whether a class claim for punitive damages can be “aggregated” to satisfy the

jurisdictional amount in controversy requirement for a class. The question,

however, is not whether distinct punitive damages claims can be added together,

but instead it is whether the single punitive damage claim on behalf of the class can

be attributed in toto to each and every class member so they can individually

4
satisfy the requisite amount in controversy, a requirement mandated by Zahn v.

International Paper Co., 414 U.S. 291, 94 S. Ct. 505 (1973).2 If the single punitive

damages claim cannot be attributed as a whole to each class member, it must be

allocated or divided pro rata among the class members, and after that is done the

total amount of relief sought by each plaintiff must satisfy the jurisdictional

amount. With that clarification of the question, we turn to the conflicting answers

of Lindsey and Tapscott.3

Lindsey involved a state law class action suit against two telephone

companies alleged to have unlawfully extracted excessive cash deposits from the

class. See Lindsey, 576 F.2d at 593. The defendants removed the case to federal

court on diversity grounds. See id. at 593-94. The complaint, as construed by the

Court, sought: (1) $2,000 compensatory damages for Lindsey, (2) an unspecified

sum of compensatory damages for the class, which contained an unspecified

2
Cohen argues that Zahn’s holding requiring dismissal from a class suit of any plaintiff whose
individual claim does not satisfy the amount in controversy requirement has been superseded by the
1990 amendments to 28 U.S.C. § 1367. As will be discussed, we need not decide that issue to
resolve the present case. See infra note 13.
3
Although the term “aggregation” is slightly misleading in the context of punitive damages and
attorneys fees, it is commonly used by courts when addressing the issue of whether the total amount
of a class claim should be attributed to each member of the class. Therefore, to avoid further
confusion and for the sake of consistency, we will continue to refer to the issue as one of
“aggregation.”

5
number of plaintiffs, and (3) $1,000,000 punitive damages on behalf of the class.

See id. at 595.

The Lindsey Court began its analysis by citing Snyder v. Harris, 394 U.S.

332, 89 S. Ct. 1053 (1969), for the broad proposition that multiple plaintiffs suing

in a class may not aggregate any claims for the purpose of satisfying the amount in

controversy requirement of diversity jurisdiction. Lindsey, 576 F.2d at 594. The

Court then noted that each member of a class must individually satisfy the

jurisdictional amount to avoid being dismissed from the class suit. See id. (citing

Zahn, 414 U.S. at 300, 94 S. Ct. at 511). Because the Lindsey plaintiff had failed

to plead a specific number of class members, the Court explained that it could not

determine “what dollar amount represent[ed] the ‘amount in controversy’ for each

member of the class.” Id. at 595 (emphasis added). Noting that the grounds for

removal jurisdiction must be found in the plaintiff’s complaint itself, the Court

explained that “it was not open for [the] defendants to attempt to show that the

class was small enough that the claims on its behalf exceeded the sum of $10,000

per capita,” id., which was the amount in controversy requirement at that time, see

id. at 593.

Because it could not tell from the complaint the number of class members,

the Lindsey Court could not determine whether each member’s claim satisfied the

6
jurisdictional amount, and it therefore held that the total specified damage claim

for the class – $1,002,000 – had not been shown to satisfy the amount in

controversy requirement. See id. at 595. A necessary part of Lindsey’s reasoning

is the holding that for amount in controversy purposes a class punitive damages

claim must be allocated pro rata to each class member. Otherwise, the result in that

case would have been different. If the Lindsey Court had concluded that a class

claim for punitive damages could be attributed in toto to each class member, i.e.,

considered in the aggregate, for amount in controversy purposes, the $1,000,000

punitive damages claim clearly would have sufficed, regardless of whether the

number of class members in Lindsey had been two or two million. The number of

class members would have been irrelevant, instead of the critical factor in the

decision. Thus, Lindsey inescapably stands for the proposition that a federal court

cannot exercise diversity jurisdiction over a class action – even with completely

diverse parties – solely because the total punitive damages claim on behalf of the

entire class exceeds the jurisdictional amount in controversy. Instead, under

Lindsey, the punitive damages claim for the class must be assigned on a pro rata

basis to each class member for amount in controversy purposes. See id.

Three years after Lindsey, we split from the Fifth Circuit but retained its

decisional law as our own, see Bonner, 661 F.2d at 1207, and fifteen years after the

7
split, this Court decided Tapscott v. MS Dealer Serv. Corp. In that case, we faced

another attempt to base diversity jurisdiction on a class claim for punitive damages,

but we mistakenly considered the matter as one of first impression.4 See Tapscott,

77 F.3d at 1358. The plaintiffs in Tapscott brought a state law class action,

alleging a class of over 10,000 members. See id. at 1355 n.2. The class sought

statutory damages, injunctive relief, and an unspecified amount of compensatory

and punitive damages, based on the defendant’s allegedly fraudulent conduct in the

sale of extended service contracts. See id. at 1355. The defendants removed the

case to federal court on diversity jurisdiction grounds. See id. The plaintiffs

contested the removal with affidavits attesting that the individual recovery for each

plaintiff would not exceed $50,000, the amount in controversy required for

diversity jurisdiction at the time. See id. The defendants responded that, for

jurisdictional purposes, the class claim for punitive damages should be considered

in the aggregate. See id. at 1357-59. We agreed and upheld the removal of the

case to federal court. See id. at 1359.

4
The Tapscott opinion cites Lindsey for the proposition that each member of a class must
individually satisfy the amount in controversy requirement in order to avoid being dismissed from
the suit. See Tapscott, 77 F.3d at 1357 n.9. But the opinion does not mention the part of Lindsey
that requires a pro rata distribution of the claimed punitive damages for purposes of determining the
amount in controversy.

8
 In Tapscott, this Court pointed to the Supreme Court’s discussion in Snyder,

which indicated that multiple plaintiffs may aggregate claims if they have “a single

title or right in which they have a common and undivided interest.” Id. at 1357

(quoting Snyder, 394 U.S. at 335, 89 S. Ct. at 1056). We then considered the

nature of punitive damages under Alabama law, finding that Alabama awards

punitive damages to plaintiffs not “as a matter of right,” but rather as a means to

punish and deter wrongful conduct. See id. at 1358. Because punitive damages

were intended to serve the collective good, we reasoned that the class had a

“common and undivided interest” in the punitive damages claim. See id. at 1358-

59. That is why this Court in Tapscott permitted the punitive damages claim to be

used to satisfy the requisite amount in controversy for the entire class; in effect,

we let the whole amount of the punitive damages claim be used by each class

member for that purpose, a result inconsistent with the decision in Lindsey almost

twenty years earlier. See id. at 1359.

Attempting to distinguish Tapscott from Lindsey, Cohen points to the

analysis in Tapscott addressing whether the punitive damages claim constituted a

“single collective right in which [the class members had] a common and undivided

interest.” Id. She contends that the “common and undivided interest” issue was

never presented to us in Lindsey, and thus, there is no real conflict between our

9
Lindsey and Tapscott decisions. Cohen’s contention misconstrues the operation of

our prior panel precedent rule. The issue in Tapscott was the same as that in

Lindsey: whether a class claim for punitive damages can be considered in the

aggregate in order to establish diversity jurisdiction over all potential members of a

class, or must instead be attributed pro rata to each class member.

“Common and undivided interest” is simply the standard used to decide

which, if any, claims by multiple plaintiffs may be considered in the aggregate for

jurisdictional purposes, and which must be divided among the class members. See

Snyder, 394 U.S. at 335, 89 S. Ct. at 1056. But we had already decided in Lindsey

that a class claim for punitive damages could not be considered in the aggregate

for each class member, or at least that such a claim arising under Alabama law

could not be. Our conclusion to the contrary in Tapscott, which also involved

Alabama punitive damages law, is inconsistent with the result in Lindsey. Because

the same state law governed punitive damages in each case, there can be no

difference between the two cases insofar as the “common and undivided interest”

analysis is concerned.5

5
Compare Allen v. R & H Oil & Gas Co., 63 F.3d 1326 (5th Cir. 1995) (allowing aggregated
class claim for punitive damages because, under Mississippi law, plaintiffs had a “common and
undivided interest” in punitive damages claim), with Ard v. Transcontinental Gas Pipe Line Corp.,
138 F.3d 596, 602 (5th Cir. 1998) (disallowing aggregated class claim for punitive damages in
Louisiana case and stating that “[i]t is unclear to us what Mississippi law regarding punitive
damages drove the Allen panel to depart from Lindsey’s rule, but we find no principle in Louisiana

10
 The fact that this case involves a Florida law punitive damages claim does

not distinguish it from Lindsey, because as we concluded in our prior panel

opinion in this case, the nature of punitive damages is the same under Florida law

as under Alabama law. See Cohen I, 184 F.3d at 1295. We explained that both

states award punitive damages to serve the collective good, noting particularly that

“Florida law, like Alabama law, provides that ‘punitive damages are warranted

only where the egregious wrongdoing of the defendant ... constitutes a public

wrong.’” Id. (citation omitted). Consequently, there can be no difference between

this case and Lindsey stemming from a “common and undivided interest” analysis

of state punitive damages law.6

law ... that permits us to depart from Lindsey”).
6
As we noted in our prior opinion in this case, our decision in Tapscott to consider the class
punitive damages claim in the aggregate was also based on the fact that “the award of punitive
damages [would] reflect not the wrong done to any single individual but the wrongfulness of the
conduct as a whole.” See Cohen I, 184 F.3d at 1295 (citing Tapscott, 77 F.3d at 1358-59)). The
class in that case consisted of over 10,000 members, and the allegedly fraudulent transaction
underlying each member’s claim involved relatively small amounts of money. See Tapscott, 77 F.3d
at 1358-59. Reasoning that “where the wrong to the individual is small but the course of conduct
is large, the potential punitive damages would be to punish and deter the course of conduct as a
whole,” we concluded in Tapscott that it was appropriate to view the class claim for punitive
damages in the aggregate. Id. at 1359. We also suggested that if the facts indicated the punitive
damages award “would be determined on an individualized consideration of the egregiousness of
the harm done to individual class members,” id. at 1359 n.13, instead of the “wrongfulness of the
defendant’s course of conduct as a whole,” id. at 1358, then aggregation might not be proper. See
id. at 1359 n.13. In view of this analysis in Tapscott, the Lindsey decision arguably could be viewed
as holding only this: when a plaintiff fails to specify the size of the class, thereby preventing the
court from determining the extent of the defendant’s wrongful course of conduct, the class claim for
punitive damages cannot be viewed in the “aggregate,” i.e., it cannot be attributed in toto to each
class member.

11
 Cohen’s real argument is that the result and holding of Lindsey are wrong

because we failed to apply a “common and undivided interest” analysis – she says

it was not even considered. Even if we thought Lindsey wrong, the prior panel

precedent rule is not dependent upon a subsequent panel’s appraisal of the initial

decision’s correctness. Nor is the operation of the rule dependent upon the skill of

the attorneys or wisdom of the judges involved with the prior decision – upon what

Unfortunately, our analysis in Lindsey forecloses that potential distinction between that case
and Tapscott. In Lindsey, we stated that if the plaintiff had alleged a specific number of class
members, that allegation “would have permitted the court to ascertain what dollar amount represents
the ‘amount in controversy’ for each member of the class.” Lindsey, 576 F.2d at 595 (emphasis
added). Significantly, our analysis in Tapscott suggests that the aggregation of punitive damages
is proper when the defendant’s course of conduct affects a large number of individuals. See
Tapscott, 77 F.3d at 1359. But according to our prior analysis in Lindsey, a “large” class is exactly
what would have prevented the amount in controversy requirement from being satisfied. Our
concern in Lindsey was that the number of class members, or the divisor, might be so large that the
$1,000,000 punitive damages claim, when divided by the number of class members, would result
in an amount less than $10,000 (the requisite amount in controversy at the time). We indicated in
Lindsey that the class would satisfy the amount in controversy requirement if the complaint alleged
a total number of members that “was small enough that the claims on its behalf exceeded the sum
of $10,000 per capita.” Lindsey, 576 F.2d at 595 (emphasis added). Thus, while our opinion in
Lindsey does not explicitly forbid the aggregation of a class claim for punitive damages, the
reasoning and result in that opinion does.

Under our reasoning in Lindsey, a punitive damages claim must be divided by the total
number of class members with the quotient attributable to each class member for amount in
controversy purposes. See id. Our inability to determine the number of class members, or the
divisor, was critical not because we could not determine the nature of the defendants’ course of
conduct, but because without a divisor we could not do the division necessary. We could not divide
the class punitive damages claim by the number of class members without knowing that number.
A Fifth Circuit panel recently acknowledged the necessary implication of our Lindsey decision. See
Ard, 138 F.3d at 601 (construing Lindsey to “appl[y] Snyder’s reasoning that compensatory damage
claims cannot be aggregated for jurisdictional purposes to the context of punitive damage claims”);
see supra at note 6.

12
was argued or considered. Unless and until the holding of a prior decision is

overruled by the Supreme Court or by the en banc court, that holding is the law of

this Circuit regardless of what might have happened had other arguments been

made to the panel that decided the issue first.

Lindsey held that, for purposes of deciding whether the amount in

controversy requirement had been satisfied, the amount of an Alabama punitive

damages claim was to be divided by the number of class members and the result

attributed to each member of the class. Tapscott decided to the contrary. Because

Lindsey predates Tapscott, we must follow Lindsey as the precedent of this Court.

See Steele, 147 F.3d at 1318; Dailey, 24 F.3d at 1327.

Accordingly, we rescind that part of our prior opinion in this case that relied

upon Tapscott to hold that the $10,000,000 punitive damages claim on behalf of

Cohen’s proposed class satisfied the amount in controversy requirement for

diversity jurisdiction over this case. See Cohen I, 184 F.3d at 1294-95. The

punitive damages claim does not satisfy the amount in controversy requirement,

because when the $10,000,000 class claim for punitive damages is divided among

the alleged 39,000 class members, as Lindsey requires for amount in controversy

purposes, each member’s share of the claim is approximately $256.

13
 We now address Cohen’s other two grounds for satisfying the requisite

amount-in-controversy: (1) the value of the requested injunctive relief, and (2) the

amount of attorney fees due if the class prevails.

II. COHEN’S OTHER GROUNDS FOR DIVERSITY JURISDICTION

A. INJUNCTIVE RELIEF

In addition to requesting compensatory and punitive damages, this lawsuit

seeks to enjoin Office Depot from engaging in unfair and misleading advertising

regarding the catalogue prices of its products. Cohen claims that Office Depot’s

advertising indicates that the prices for products purchased from its catalogues are

the lowest prices available anywhere, but that the truth is some products are less

expensive if purchased at Office Depot stores. She argues that enjoining such

allegedly misleading advertising would “result[] in changes to Office Depot’s

advertising and business practices, thereby benefitting the Plaintiff class, as a

whole, by an amount that is clearly in excess of the jurisdictional requirement of

Section 1332.” Appellant’s Br. 44-45.

When a plaintiff seeks injunctive or declaratory relief, the amount in

controversy is the monetary value of the object of the litigation from the plaintiff’s

perspective. See Ericsson GE Mobile Communications, Inc. v. Motorola

Communications & Elecs., Inc., 120 F.3d 216, 218-20 (11th Cir. 1997). In other

14
words, the value of the requested injunctive relief is the monetary value of the

benefit that would flow to the plaintiff if the injunction were granted. In this case,

Cohen maintains that the class has a “common and undivided interest” in the

injunctive relief, and thus, if considered in the aggregate, the monetary value of it

to the class – alone or combined with the other claims for relief – would satisfy the

$75,000 amount in controversy requirement. However, we need not address

whether the monetary value of the requested injunctive relief should be considered

in the aggregate, or instead attributed pro rata among the class members, because

we conclude that the monetary value of the injunctive relief to the class plaintiffs in

this case is “too speculative and immeasurable” to establish the requisite amount in

controversy in either event. See id. at 221-222.

We have little trouble concluding “to a legal certainty” that the value of the

injunctive relief does not satisfy the jurisdictional amount in this case, see St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S. Ct. 586, 590

(1938), because we doubt that any monetary value at all would accrue to the class

plaintiffs upon issuance of the prospective injunction. If the requested injunctive

relief were granted, Office Depot would not be required to offer its products at the

lowest price available, but instead could simply raise the price of the products in its

stores a sufficient amount that its advertising of catalogue prices was no longer

15
false. That result would comply with the injunction the class seeks, but it would be

of no monetary benefit to them. Indeed, to the extent class members also buy

products in Office Depot stores, the injunction would cost them money under that

scenario.

But let us assume Office Depot’s reaction to the requested injunction would

be to leave product prices as they are and clarify its advertising to remove any

statement that catalogue prices are the same as store prices. That result is the most

the class could hope for from the requested injunction, but it is one which would be

of little or no monetary value to class members. The benefit of the injunction to

the class plaintiffs would be the knowledge that some office products were less

expensive when purchased at Office Depot stores than when purchased through the

catalogue. However, upon class certification and notice, the class plaintiffs would

already have known that, because the allegedly misleading advertising is the very

basis of the class action.

Although Cohen’s complaint seeks class certification under subdivisions

(b)(1)(A), (b)(1)(B), and (b)(3) of Fed. R. Civ. P. 23, Cohen’s class, if certified,

would likely be certified as a (b)(3) class.7 Certification under Rule 23(b)(3)

7
Because Cohen’s class seeks compensatory damages, it cannot be certified as a (b)(1)(A) class.
See In re Dennis Greenman Sec. Litig., 829 F.2d 1539, 1545 (11th Cir. 1987). As for potential
certification under (b)(1)(B), we fail to see from the complaint’s allegations how individual suits
against Office Depot brought by one or more class members “would as a practical matter be

16
would require that the class members receive notice of the suit “well before the

merits of [it] are adjudicated.” See Schwarzschild v. Tse, 69 F.3d 293, 295 (9th

Cir. 1995) (citations omitted); Fed. R. Civ. P. 23(c)(2); see also 7B Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1788 (2nd ed. 1986).

As a result, before any injunction were granted, the class would already know that

the catalogue price of some Office Depot products is higher than the store price.

Or, stated differently, if the injunction were not granted, the class plaintiffs would

still know that the advertising is sometimes false and that they can avoid paying the

higher catalogue prices simply by shopping elsewhere or by purchasing the

products at Office Depot’s stores. The injunctive relief itself would not be of any

monetary value to the class members. Cf. Crawford v. American Bankers Ins. Co.

of Fla., 987 F. Supp. 1408, 1415 (M.D. Ala. 1997) (explaining that the class

members’ “financial recovery will come ... from their tort and [restitution] claims,

not from the prospective injunctive relief”).

dispositive of the interests of the other members ... or substantially impair or impede their ability to
protect their interests.” Fed. R. Civ. P. 23(b)(1)(B); see also 7A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1774 (2nd ed. 1986) (explaining that “(b)(1)(B) allows
class actions to be brought in cases in which separate suits might have undesirable effects on the
class members”). Moreover, the possibility that an individual suit “will have either precedential or
stare decisis effect on later [suits] is not sufficient” for (b)(1)(B) class certification. In re Dennis
Greenman Sec. Litig., 829 F.2d at 1546.

17
 The remote possibility – if there be any – that monetary value might

somehow flow to the class plaintiffs from the requested injunctive relief is “too

speculative and immeasurable to satisfy the amount in controversy requirement.”

Ericsson, 120 F.3d at 221-222. In Ericsson, the plaintiff company, Ericsson,

claimed that the City of Birmingham improperly handled the bidding process for

its purchase of a communications system, resulting in the company losing the

communications system contract to Motorola. See id. at 217. Ericsson sought to

enjoin the city’s contract with Motorola and also to have the court declare Ericsson

the lowest responsible bidder, entitling it to the contract with the city worth almost

$10,000,000. See id. However, the district court noted that, under Alabama law,

the only remedy available to Ericsson was to have the district court enjoin the

performance of the city’s contract with Motorola as void. See id. at 221. Not only

did the court lack authority to declare Ericsson the lowest bidder, it could not even

require the city to rebid the contract. See id.

Consequently, the only benefit to Ericsson from its injunctive relief would

have been the possibility that the city might rebid the contract and that, during the

rebid, the city might select Ericsson’s communications system and price. See id. at

221-22. We refused to pile possibility onto possibility to estimate the value of that

benefit, but instead held that “[b]ecause [Ericsson could not] reduce the speculative

18
benefit resulting from a rebid ‘to a monetary standard, [] there [was] no pecuniary

amount in controversy.’” Id. at 222 (quoting Texas Acorn v. Texas Area 5 Health

Sys. Agency, Inc. 559 F.2d 1019, 1023 (5th Cir. 1977)).

Similarly, the injunctive relief in this case involves too many contingencies,

such as the manner in which Office Depot might alter its pricing schemes and the

extent to which the class members’ purchasing patterns might change. Because of

these contingencies, any benefit to the class from the injunction cannot be reduced

to a reasonable monetary estimate.8 See id. at 222. We therefore conclude that any

monetary value to Cohen’s class from the injunction is either non-existent, or at

least too tenuous of a foundation for diversity jurisdiction. In reaching this

conclusion, we also note that the policy underlying 28 U.S.C. § 1332(a), which is

to reserve federal court diversity jurisdiction for disputes involving relatively

substantial damages, further informs our refusal to speculate about the value of a

8
Like the plaintiff in Ericsson, Cohen has not established a monetary value for the injunctive
relief claim. See id. at 222 n.18. Cohen argues that her proposed amended complaints provide bases
for valuing the injunctive relief claim, primarily the substantial expense Office Depot would incur
by “retooling” its pricing scheme and advertising. The potential cost of compliance to the defendant,
however, is irrelevant in determining the value of the benefit that would be obtained by the plaintiff
from an injunction. See Ericsson, 120 F.3d at 218-20. For that reason, the proposed amended
complaint did not establish the requisite amount in controversy based on the value of the injunctive
relief, and accordingly, the district court did not abuse its discretion in denying leave to amend. See
Halliburton & Assocs., Inc. v. Henderson, Few & Co., 774 F.2d 441, 444 (11th Cir. 1985) (noting
that when “a complaint as amended is still subject to dismissal, leave to amend need not be given”)
(citation omitted).

19
prospective injunction to the class plaintiffs in this case. See Packard v. Provident

Nat’l Bank, 994 F.2d 1039, 1044-45 (3rd. Cir. 1993) (noting that § 1332(a) “must

be narrowly construed so as not to frustrate the congressional purpose behind it”).

The total compensatory and punitive damages claim for each class member in this

case is about $260,9 well below the $75,000 threshold for diversity jurisdiction.

Because the class claim for injunctive relief is too speculative to satisfy the

amount in controversy requirement, we turn now to the question of whether the

potential recovery of attorney fees, alone or in combination with the damages

claims, can establish the jurisdictional amount in controversy.

B. ATTORNEY FEES

On behalf of the class, Cohen brought claims under Florida statutes that

prohibit deceptive business practices, see Fla. Stat. § 501.201 et seq., and

misleading advertising, see Fla. Stat. § 817.41. Both statutory causes of action

authorize a court to award attorney fees to the prevailing party. See Fla. Stat. §

501.2105; Fla. Stat. § 817.41. Cohen contends that when a statutory cause of

9
While there are persuasive reasons for viewing the amount in controversy as the total liability
faced by a defendant, instead of as the amount each plaintiff stands to gain, “the Supreme Court has
long since closed that door.” Davis v. Carl Cannon Chevrolet-Olds, Inc., 182 F.3d 792, 798 (11th
Cir. 1999). In this case, the approximate compensatory damages claim of each member, assuming
Cohen’s claim is representative of the other class members, is $3.57. Each member’s share of the
punitive damages claim is approximately $256. The total damages claim of each class member,
therefore, is less than $260.

20
action entitles a party to recover reasonable attorney fees, the amount in

controversy includes consideration of the amount of those fees. She is correct. See

Missouri State Life Ins. Co. v. Jones, 290 U.S. 199, 202, 54 S. Ct. 133, 134 (1933);

Premier Indus. Corp. v. Texas Indus. Fastener Co., 450 F.2d 444, 447 (5th Cir.

1971).

Cohen also contends that the attorney fees in this case will clearly surpass

the $75,000 threshold for the amount in controversy; and she argues that the

amount of fees she anticipates will be awarded either should be (1) attributed to her

as the prevailing party, with jurisdiction over the other class plaintiffs established

under 28 U.S.C. § 1367(a) (the supplemental jurisdiction provision), or (2)

considered in the aggregate and attributed in toto to each member based on their

“common and undivided interest” in the attorney fees. Assuming away our doubts

that Cohen has established a sufficient basis for her contention that an award of

21
attorney fees in this case will reach $75,000 or more,10 we address in turn her

arguments as to how that amount of fees should be attributed.

First, we find no basis for attributing the potential award of attorney fees to

Cohen, either individually or as the class representative. The claim for attorney

fees in this case is based on two Florida statutes: Fla. Stat. § 501.2105(1),

authorizing an award of attorney fees to “the prevailing party” in an action based

on deceptive business practices; and Fla. Stat. § 817.41(6), mandating an award of

attorney fees to “[a]ny person prevailing” in an action based on misleading

advertising. If this class action were successful on the merits, the entire class of

plaintiffs – not just Cohen – would “prevail” in the action, and accordingly, it is the

class and not just Cohen who would recover attorney fees under the statutes.11

10
We doubt that Cohen has sufficiently established that $75,000 in attorneys fees will be
recovered in this case. In her proposed amended complaint, Cohen contends that over $60,000 in
reasonable attorneys fees had been incurred up to that point in the litigation and that ultimately over
$100,000 in fees would be incurred. However, Cohen provided no documentation supporting those
contentions or specific explanation for the substantial amount claimed. Arguably, when the amount
in controversy substantially depends on a claim for attorneys fees, that claim should receive
heightened scrutiny. Cf. Packard, 994 F.2d at 1046 (explaining that when a “[punitive damages]
claim comprises the bulk of the amount in controversy and may have been colorably asserted solely
or primarily [for jurisdictional purposes], that claim should be given particularly close scrutiny”).
However, because of the permissive nature of St. Paul’s “legal certainty” standard for the sufficiency
of a plaintiff’s amount in controversy allegation, and because our decision would not be different
even if the claimed amount of fees were accurate, we will assume that Cohen has alleged a sufficient
basis for a potential attorneys fee award exceeding $100,000, as estimated in her proposed amended
complaint.
11
Cohen’s citation to In re Abbot Labs., 51 F.3d 524 (5th Cir. 1995), is inapposite. The Court
in that case attributed a claim for attorney fees to the class representatives, because the relevant
Louisiana statute provided that a “court may allow the representative parties their reasonable

22
 In addition, as an individual class member, Cohen stands to recover no more

than $260 in damages. In her first proposed amended complaint, Cohen indicated

that over $100,000 in reasonable attorney fees would be incurred in the litigation.

Attributing to one plaintiff an anticipated attorney fees award that is over 384 times

greater than that plaintiff’s stake in the litigation could raise serious questions

about the reasonableness of the fee award. For these reasons, we conclude the

claim for attorney fees in this case is not attributable solely to Cohen, but instead to

the entire class. Because of that conclusion, we must now decide how the claimed

attorney fees should be attributed to each class member for amount in controversy

purposes.12

expenses of litigation, including attorney[] fees, when as a result of the class action a fund is made
available, or a recovery or compromise is had which is beneficial, to the class.” Id. at 526 (emphasis
added). Unlike the statute in Abbott, the Florida statutes at issue here do not contain language
indicating that the award of attorneys fees should go to the class representatives.
12
Cohen asks us to join the Fifth and Seventh Circuits in concluding that Congress statutorily
overruled Zahn’s holding that each plaintiff must assert a claim satisfying the requisite amount in
controversy to avoid being dismissed from a class action based on diversity jurisdiction. See
Stromberg Metal Works v. Press Mechanical, Inc., 77 F.3d 928, 930-33 (7th Cir. 1996); In re
Abbott Lab., 51 F.3d at 527-29. She contends that the 1990 amendments to 28 U.S.C. § 1367
authorize a court to exercise supplemental jurisdiction over the claims of the entire class, once the
claim of one class member is found to satisfy the amount the controversy requirement. However,
we need not address that argument. Because the claimed attorney fees in this case are not
attributable solely to Cohen, no member of the class has an individual claim that satisfies the
requisite amount in controversy. Therefore, diversity jurisdiction will exist in this case only if the
claimed attorney fees may be considered in the aggregate, attributed as a whole to each class
member.

23
 Cohen maintains that the class members share a “common and undivided

interest” in the anticipated award of attorney fees, and thus, the claim for those fees

should be viewed in the aggregate, with the total amount attributed to each class

member. Office Depot responds that, like the class claim for punitive damages, the

amount of the claimed attorney fees should be divided pro rata among each

individual class member. In light of a recent decision by this Circuit and the

relevant Florida case law, we conclude that the claim for attorney fees is not “a

single title or right in which [the class members] have a common and undivided

interest” in the claimed attorney fees. See Snyder, 394 U.S. at 335, 89 S. Ct. at

1056. Therefore, for amount in controversy purposes, the estimated total attorney

fees award should be divided among all of the class members.

In Darden v. Ford Consumer Finance Co., ___ F.3d ___ (11th Cir. 2000), the

defendant attempted to remove a class action to federal court on diversity grounds,

arguing that the class plaintiffs’ claim for attorney fees under the Georgia RICO

statute should be considered in the aggregate for amount in controversy purposes.

We rejected that argument. Following the principles laid down by the Supreme

Court in Snyder, we concluded that the claimed attorney fees did not constitute a

“single title or right” in which the class members had a “common and undivided

interest.” See id. at *3-6. In reaching that conclusion, we noted that each class

24
plaintiff could have recovered his attorney fees in individual suits under the RICO

statute. See id. at *5. It followed that the class members did not share a “single

title or right” in the claimed attorney fees, but instead, each member had a

“separate and distinct statutory right or claim to recover those attorney[] fees.” Id.

Noting further that under Georgia law the statutory award of attorney fees serves to

compensate injured plaintiffs, we reasoned that considering the fees in the

aggregate would contravene Snyder’s prohibition against aggregating

compensatory damages.13 See id. Therefore, we refused to aggregate the claimed

attorney fees of the class.14

We construe Darden to hold that a statutory claim for attorney fees may not

be considered in the aggregate for amount in controversy purposes, at least not

when both of these factors are present: (1) the class members have a “separate and

distinct” right to recover attorney fees under the relevant statute; and (2) state law

13
Darden distinguished the “collective good” purposes of the punitive damages in Tapscott from
the compensatory nature of the attorneys fees in that case. See Darden. Therefore, the decision in
Darden did not depend on the continued validity of the Tapscott decision. However, if Darden had
somehow reiterated the part of Tapscott that conflicts with Lindsey, we would still be compelled to
follow Lindsey, to the extent of any conflict. The prior panel precedent rule precludes us from
“hold[ing] that two subsequent panel opinions can implicitly overrule a prior panel opinion.”
Johnson v. City of Fort Lauderdale, Fla., 126 F.3d 1372, 1380 n. 10 (11th Cir. 1997).
14
This Court also rejected the aggregation of an attorney fees award in Davis, 182 F.3d at 796-
97. However, the precedential effect of Davis on this case is minimal, because that case did not
involve a statutory right to attorneys fees. Instead, Davis addressed only the “narrow question ...
[of] whether a fee to be deducted from a [class action] common fund may, if it exceeds $75,000,
satisfy the amount-in-controversy requirement.” Id. at 796.

25
provides that the statutory attorney fees serve to compensate the class members for

their injuries.15 Applying that holding to the facts of this case, we conclude that the

claimed attorney fees may not be considered in the aggregate to establish the

requisite amount in controversy.

As for the first factor, the class members in this case could recover their

individual attorney fees incurred in separate, individual suits under Florida’s

consumer protection statutes. See Fla. Stat. § 501.2105(1) (authorizing fee award

for “prevailing party”); Fla. Stat. § 817.41(6) (mandating fee award for “[a]ny

person prevailing” under the statute). Like the Georgia RICO statute involved in

Darden, the Florida statutes in this case provide “each individual plaintiff in a

putative class the right to recover attorney[] fees in the case.” Darden, The

members of Cohen’s class are not joining to “enforce a single title or right” in the

statutory award of attorney fees, see Syder, 394 U.S. at 335, 89 S. Ct. at 1056,

because each member has a “separate and distinct right” in the claimed fees. See

Darden.

The second factor is also present. Like the attorney fees award under the

Georgia RICO statute in Darden, an attorney fees award under Florida consumer

15
Because both factors are present in this case, we need not decide whether either one standing
alone would prevent aggregation of attorney fees to satisfy the amount in controversy.

26
protection statutes serves an important compensatory purpose. In BMW of North

Amer., Inc. v. Krathen, 510 So.2d 366, 368 (Fla. 4th Dist. Ct. App. 1987), the

District Court of Appeals for the Fourth District noted that “the obvious purpose of

the ‘Little FTC Act’ [which includes § 501.2105(1)] is to make consumers whole

for losses caused by fraudulent consumer practices [and that] ... [t]hese aims are

not served if the attorney[] fees are not included in the protection.” Id. at 368

(citation omitted); cf. Florida Erection Serv. v. McDonald, 395 So.2d 203, 207-08

(Fla. 1st Dist. Ct. App. 1981) (explaining that an award of attorney fees, unlike an

award of punitive damages, “does not provide remuneration to the claimant over

and above the amount necessary to compensate him for his loss”). Even though

the primary purpose of such an award is to encourage private enforcement of

statutory policies, thus benefitting the public, see Standard Guaranty Ins. Co. v.

Quanstrom, 555 So.2d 828, 833-34 (Fla. 1990), that does not mean attorney fees

are not also compensatory in nature. The Florida Supreme Court has recognized

that private individuals cannot be expected to pursue statutory causes of action

unless their own losses and costs, including their attorney fees, will be fully

compensated. See id. (noting that “[i]f ... consumers cannot recover in full their

attorney fees, they will quickly determine it is too costly ... to file suit, and

individual enforcement of this act will fail”) (quoting LaFerney v. Scott Smith

27
Oldsmobile, Inc., 410 So.2d 534, 536 (Fla. 1st Dist. Ct. App. 1978)). Because the

statutory attorney fees involved in this case serve a significant compensatory

purpose, in this case as in Darden, aggregating the claimed attorneys fees would be

inconsistent with Snyder. Consequently, the nature and purpose of the statutory

right to attorney fees in this case strongly resemble those of the statutory right to

attorneys fees in Darden; it follows that the result should be the same.

Because the attorney fees authorized by the Florida statutes in this case serve

to compensate plaintiffs for losses resulting from allegedly unlawful business

practices, and because claims for those fees could be asserted by the class plaintiffs

in individual suits, we conclude that the claimed fees do not constitute “a single

title or right in which [the class members] have a common and undivided interest.”

Snyder, 394 U.S. at 335, 89 S. Ct. at 1056. It follows that the amount of claimed

attorney fees may not be considered in the aggregate – may not be attributed in

whole to each class member – but instead, like the class claim for punitive

damages, it must be divided out among the total number of class members for

amount in controversy purposes. Because each class member’s damages claim

approximates $260, and the claimed attorney fees must be divided pro rata among

39,000 class members, an astronomical amount of attorney fees would have to be

28
recovered in order to satisfy the amount in controversy requirement.16 Such a

recovery is not possible, and therefore, neither is diversity jurisdiction.

III. CONCLUSION

Because we conclude that Cohen has failed to allege a sufficient amount in

controversy to establish jurisdiction under 28 U.S.C. § 1332(a), we vacate our prior

opinion reversing the district court’s dismissal of this case and remanding for

further proceedings. We now affirm the district court’s order dismissing the case

for lack of subject matter jurisdiction.

AFFIRMED.

16
Each class member must, in effect, “recover” $74,740 in attorneys fees ($75,000 required for
diversity jurisdiction minus the $260 in damages per class member). That means the class would
have to recover a total of $2.9 billion in attorneys fees ($74,740 multiplied by the alleged 39,000
class members).

29