People v. Wunder
2016 COA 46
Colo. Ct. App.2016Background
- Stephen Wunder operated Sea to Ski, a Colorado travel club; the Colorado AG sued under the Colorado Consumer Protection Act (CCPA) alleging deceptive practices (misleading exclusivity, price misrepresentations, misleading guarantees, undisclosed material terms of promotions).
- After a denied preliminary injunction, the district court granted the AG summary judgment that Wunder violated the CCPA based on documentary and deposition evidence; Wunder did not timely oppose the summary-judgment motion.
- The AG then moved (unverified and without an evidentiary hearing) for a permanent injunction, civil penalties, and restitution; the district court awarded a broad permanent injunction, $515,000 in statutory penalties, and over $6 million in restitution.
- Wunder successfully moved to correct the injunction’s incorporation-by-reference defect, but challenged the injunction as vague/overbroad and challenged the money judgments as entered without an evidentiary hearing.
- The Court of Appeals affirmed liability (summary judgment), held parts of the injunction (notably a broad prohibition on any interest in “vacation or travel related services or products”) vague and overbroad and remanded to reformulate it, and reversed the civil-penalty and restitution awards because an evidentiary hearing was required before entering money judgments.
Issues
| Issue | Plaintiff's Argument (AG) | Defendant's Argument (Wunder) | Held |
|---|---|---|---|
| Subject-matter jurisdiction over out-of-state consumers | CCPA authorizes AG suits in Colorado courts; no residency limitation | Court lacked jurisdiction over claims by nonresident Sea to Ski members | Court: Colorado courts have jurisdiction; CCPA contains no residency restriction — jurisdiction proper |
| Summary judgment on CCPA liability | Documentary record and depositions show no genuine issue of material fact; AG entitled to judgment | Wunder argued error but failed to timely oppose and did not create triable issues | Court: summary judgment affirmed — AG met burden and Wunder did not rebut |
| Validity, vagueness, and breadth of permanent injunction (¶5) | Injunction necessary and may include broad catchall to prevent future violations; court may clarify | Paragraph 5 vague (undefined “vacation or travel related services or products”) and overbroad as to employment and minor industry roles | Court: injunction partly invalid — court corrected incorporation-by-reference error but paragraph 5 is vague and overly broad; remand to reformulate |
| Civil penalties and restitution without evidentiary hearing | AG argued written submissions and prior hearings sufficed; rules allow disposition on papers when possible | Wunder argued due process required hearing before large money judgments; factual disputes over amounts | Court: reversed penalties and restitution — due process requires evidentiary hearing and findings; remand for hearing and C.R.C.P. 52 findings |
Key Cases Cited
- Tulips Invs., LLC v. State ex rel. Suthers, 340 P.3d 1126 (Colo. 2015) (scope of Colorado courts’ subject-matter jurisdiction and review standard)
- Brodeur v. Am. Home Assurance Co., 169 P.3d 139 (Colo. 2007) (summary judgment standard)
- Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988) (summary judgment burdens and doubts resolved for nonmoving party)
- Blood v. Qwest Servs. Corp., 224 P.3d 301 (Colo. App. 2009) (procedural due process requires evidentiary hearing before significant money deprivation)
- People v. Shifrin, 342 P.3d 506 (Colo. App. 2014) (remedies under the CCPA and court discretion in fashioning relief)
- Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979 (9th Cir. 2015) (restitution requiring reasonable basis of computation)