                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

                                                     )
JARROD BECK, et al.,                                 )
                                                     )
               Plaintiffs,                           )
                                                     )
        v.                                           )   Civil No. 04-1391 (RCL)
                                                     )
TEST MASTERS EDUCATIONAL                             )
SERVICES INC.,                                       )
                                                     )
               Defendant.                            )


                                  MEMORANDUM OPINION

        Upon consideration of the plaintiffs’ Motion for the Entry of a Monetary Judgment and to

Set an Evidentiary Hearing on Plaintiffs’ Request for Injunctive Relief [200], the defendant’s

Opposition [204] thereto, and the plaintiffs’ Reply [205], the Court hereby DENIES the motion

for injunctive relief and GRANTS the motion for a monetary judgment.

   I.        BACKGROUND

        Prior opinions of this Court have detailed the complex procedural background of this

litigation at length. See, e.g., Beck v. Test Masters Educ. Servs. Inc., Civil No. 1:04-CV-01391

(RCL), 2013 WL 6668699, at *1–2(D.D.C. Dec. 18, 2013). For present purposes, the Court will

recount only those facts relevant to this opinion.

        Plaintiffs—former students in the defendant’s LSAT preparation course—filed suit in

2004, claiming violations of the D.C. Consumer Protection Procedures Act (“CPPA”). Plaintiffs

enrolled in the defendant’s course, offered as Test Masters Educational Services (“TES”),

believing that they were registering for a different course known as TestMasters, operated by

Robin Singh Educational Services, Inc. When plaintiffs initially contacted the defendant via
telephone and expressed interest in LSAT preparation courses, each referenced locations where

Singh’s TestMasters operated courses and TES did not. TES agents failed to correct the apparent

misunderstanding, and in doing so, “affirmatively and impliedly mislead plaintiffs.” Beck v. Test

Masters Educ. Servs. Inc., No. 1:04-CV-01391 (RCL), 2013 WL 6668699, at *5 (D.D.C. Dec.

18, 2013). As such, this Court granted summary judgment in favor of the plaintiffs on the CPPA

claims. Id.

          TES appealed. Because this Court’s order granting summary judgment did not resolve

the plaintiffs’ claims for injunctive relief and statutory damages under the CPPA, the United

States Court of Appeals for the D.C. Circuit dismissed the appeal, holding that the order was

“not a final appealable order under 28 U.S.C. § 1291 because it does not dispose of all claims

against all parties.” Beck v. Test Masters Educ. Servs. Inc., No. 14-7010., ECF No. 1492325

(May 9, 2014). Seeking resolution of these claims, the plaintiffs filed the instant motion. 1 For

the reasons outlined below, the Court denies the motion for injunctive relief and grants the

motion for statutory damages.


    II.       MOTION FOR PERMANENT INJUNCTION

              A. Legal Standard

          The CPPA provides that, as a remedy for proven violations, plaintiffs may obtain “[a]n

injunction against the use of the unlawful trade practice.” D.C. Code § 28-3905(k)(2)(D).

Injunctive relief “is an extraordinary remedy never awarded as of right.” Winter v. Natural Res.

Def. Council, Inc., 555 U.S. 7, 24 (2008). A permanent injunction is a “forward-looking”

remedy, Gratz v. Bollinger, 539 U.S. 244, 284 (2003), the “principal purpose” of which is to

1
   The Court rejects TES’s assertion that the plaintiffs’ motion is untimely under Federal Rule of Civil Procedure
Rule 59(e), which requires that any motion to alter or amend a judgment be filed within 28 days after the judgment
is entered. Rule 54(a) defines a judgment as any “order from which an appeal lies.” The Circuit’s opinion that no
such order was entered in this case forecloses TES’s argument on untimeliness.

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“deter future violations, and not to punish the violator,” Sec. & Exch. Comm'n v. Savoy Indus.,

Inc., 587 F.2d 1149, 1169 (D.C. Cir. 1978). A plaintiff seeking a permanent injunction must

demonstrate that (1) it will suffer an irreparable injury in the absence of an injunction; (2) legal

remedies are insufficient to compensate for that injury; (3) considering the balance of hardships

between the parties, an equitable remedy is warranted; and (4) the injunction is in the public

interest. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-57 (2010); eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Because “the basis of injunctive relief in the

federal courts has always been irreparable harm,” courts need not consider the latter three factors

where the plaintiff fails to establish the first. CityFed Fin. Corp. v. Office of Thrift Supervision,

58 F.3d 738, 747 (D.C. Cir. 1995) (internal quotations and citations omitted).

       An evidentiary hearing on whether to grant injunctive relief is required when “there are

genuine issues of material fact” or “when a court must make credibility determinations to resolve

key factual disputes in favor of the moving party.” Cobell v. Norton, 391 F.3d 251, 261 (D.C.

Cir. 2004).

       Applying the aforementioned factors to the present case, and finding that there are no

genuine issues of material fact, the Court denies the plaintiffs’ motion for injunctive relief

because they have failed to demonstrate that irreparable injury will ensue in the absence of an

injunction.

              B. Analysis

       “The irreparable injury requirement erects a very high bar for a movant.” Coal. For

Common Sense In Gov't Procurement v. United States, 576 F. Supp. 2d 162, 168 (D.D.C. 2008).

The claimed injury must be “both certain and great” and “of such imminence that there is a clear

and present need for equitable relief to prevent irreparable harm.” Wisconsin Gas Co. v.



                                                   3
F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985) (emphasis in original). The plaintiffs, having

succeeded in proving only ten-year-old isolated instances of misleading conduct, have failed to

demonstrate that an injunction is necessary to prevent an actual, imminent injury.

       Plaintiffs claim that “copious . . . confusion among D.C. area consumers” persists. Pls.’s

Reply 13. But confusion does not equate to deception or misrepresentation. Since 2004, TES

has sought to dispel some of this confusion by including a bold and conspicuous statement on its

enrollment agreement that “there are other companies that choose to operate under the name Test

Masters. One such company is legally called Robin Singh Educational Services. Rest assured,

we are not that company.” Def.’s Mot. for Summ. J., ECF No. 159, Ex. 14 (Test Masters Full-

Length LSAT Course Student Agreement), at 27–28. This Court has previously held that this

“disclosure is sufficient to put . . . participants on notice of the two companies and waive the

claim of misrepresentation or omission.” Beck, 2013 WL 6668699 at *5. Plaintiffs now argue

that this is an “obscure” statement hidden in “fine print.” Pls.’s Reply 13. But with the

exception of headings, the entire two-page agreement is in the same font size and therefore

devoid of fine print. And, the disclaimer regarding Singh’s TestMasters is written in bold and far

from obscure. The Court again holds that this statement is sufficient to put customers on notice

that there is more than one TestMasters and to prompt additional research where necessary.

       Each of the dissatisfied TES customers presented in the plaintiffs’ motion allegedly

realized that they had enrolled in the wrong course after signing an enrollment agreement that

contained the clear disclaimer. Id. at 13–16. Moreover, each of these customers claim they were

deceived by the website, and this Court has previously held that there is no evidence of online

deception in this case. Beck, 2013 WL 6668699 at *5. Curiously, plaintiffs argue that, even in

the absence of the apparent confusion that was present when each of the plaintiffs spoke with



                                                 4
TES representatives, TES is deceiving customers by failing to affirmatively inform all of their

potential customers that Singh’s TestMasters exists. The law forbids consumer deception, but it

does not require that a company begin all communication with the general public by informing

them of its competitors.

          Consumer confusion is to be expected when consumers must choose between two LSAT

preparation companies known commercially as TestMasters and maintaining websites separated

only by the difference between .com and .net. The ire regarding TES’s use of the name

“TestMasters” appears to be the root of this litigation, but Mr. Singh has fought and lost that

battle twice. Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559 (5th Cir.2005); Test

Masters Educational Services, Inc. v. Singh, 46 F. App’x 227 (5th Cir.2002). Mr. Singh, who

the Circuit acknowledged “has funded and directed this litigation,” Beck v. Test Masters Educ.

Servs., Inc., 407 F. App’x 491, 492 (D.C. Cir. 2011), may not use the extraordinary remedy of a

permanent injunction to obtain the result twice denied him by other courts.

          In sum, the potential harm asserted by the plaintiffs does not meet the high bar of a

“certain and great” injury. Thus, even assuming the truth of all of TES’s factual assertions, this

Court finds that plaintiffs have failed to prove the widespread pattern of deception that they

alleged in support of injunctive relief.

   III.      MOTION FOR STATUTORY DAMAGES

          As an alternative to treble damages—which are unavailable to the plaintiffs because they

have no compensatory damages—the CPPA permits recovery of “$1,500 per violation,

whichever is greater, payable to the consumer.” D.C. Code § 28-3905(k)(2)(A). This “default

payment” is particularly appropriate in cases such as this, where plaintiffs “are able to show

causation, but cannot prove the amount of pecuniary damage suffered as a result.” Wells v.



                                                   5
Allstate Ins. Co., 210 F.R.D. 1, 9 (D.D.C. 2002). The Court has granted summary judgment on

the plaintiffs’ discrete CPPA claims and the default statutory damages are therefore appropriate.

       The only outstanding matter in this case is the plaintiffs’ motion [203] for attorneys’ fees.

As stated in the Court’s previous opinion, such motions are collateral and will be considered

separately. The defendant’s motion indicates that the parties’ prior attempt to meet and confer

regarding attorneys’ fees was complicated by confusion as to whether the Court’s summary

judgment opinion was a final appealable order. Given that the Circuit has conclusively ruled that

it was not, the Court again encourages the parties to timely meet and confer on this matter in an

attempt to agree on a reasonable amount of attorneys’ fees. Plaintiffs’ prior motion [203] is

denied, without prejudice to filing a new motion within 30 days of this date if the parties are

unable to agree.

       A separate Order consistent with this Memorandum Opinion shall issue this date.

       Signed by Royce C. Lamberth, United States District Judge, on June 20, 2014.




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