Vandiver v. MG Billing Limited, 653 F.Supp.3d 884

Plaintiff James Vandiver sued MG Billing Limited d/b/a Probiller under the Colorado Consumer Protection Act (CCPA) seeking class-wide relief.
After the Magistrate Judge’s recommendation and the Court’s October 4, 2022 order, Vandiver moved for reconsideration arguing the Colorado General Assembly’s 2022 amendment to the CCPA (§ 6‑1‑113(2.9)) permits retroactive class-wide remedies.
Probiller answered, sought leave to file a surreply to Vandiver’s reconsideration briefing, and moved to certify the retroactivity question to the Colorado Supreme Court.
The parties disputed (1) whether the 2022 amendment should be applied retroactively, (2) whether the amendment is substantive or remedial/procedural, and (3) whether retroactive application would violate due process.
The Court granted Vandiver’s motion for reconsideration, permitted Probiller’s surreply, denied Probiller’s certification motion, and held that § 6‑1‑113(2.9) is remedial/procedural and applies retroactively, allowing Vandiver to pursue class-wide CCPA relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2022 CCPA amendment applies retroactively	Vandiver: yes—amendment governs remedies and thus can apply to pending claims	Probiller: presumption of prospectivity; no clear legislative intent to apply retroactively	Court: no express retroactive language, but because the provision is remedial/procedural it may apply retroactively
Whether the 2022 amendment is remedial/procedural or substantive	Vandiver: remedial—specifies remedies (actual damages, injunctive relief, fees/costs) and does not change liability	Probiller: substantive—alters available relief and fundamentally changes CCPA rights	Court: remedial/procedural; it defines remedies and class procedure, not new substantive liability
Whether retroactive application violates due process	Vandiver: no—remedial change does not impair vested rights or offend due process	Probiller: yes—defendant relied on pre‑amendment law; retroactivity would impair expectations/rights	Court: no due process violation; the amendment is remedial and defendants had no vested right to unchanged remedial rules
Whether to certify the retroactivity question to the Colorado Supreme Court	(Vandiver opposed certification)	Probiller: certify whether the amendment applies retroactively	Court: denied—Colorado precedent supplies a reasonably clear, principled course; certification unnecessary

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010) (Rule 23/class-action procedural nature and federal-state interplay)
Greenlaw v. United States, 554 U.S. 237 (2008) (courts as neutral arbiters follow party presentation principle)
Deposit Guaranty Nat. Bank, Jackson, Miss. v. Roper, 445 U.S. 326 (1980) (right to use Rule 23 is procedural)
City of Colorado Springs v. Powell, 156 P.3d 461 (Colo. 2007) (presumption statutes operate prospectively absent clear legislative intent)
In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002) (defining prospective vs. retroactive statutory operation)
Kuhn v. State, 924 P.2d 1053 (Colo. 1996) (retroactive application permitted for procedural/remedial statutes)
People v. D.K.B., 843 P.2d 1326 (Colo. 1993) (distinguishing substantive statutes from procedural/remedial ones)
Taylor Morrison of Colorado, Inc. v. Bemas Constr., Inc., 411 P.3d 72 (Colo. App. 2014) (examples of retroactivity analysis where statute referenced actions filed "on or after" a date)
State Board of Equalization v. American Airlines, Inc., 773 P.2d 1033 (Colo. 1989) (procedural/remedial statutes that do not affect preexisting rights may be applied retroactively)