                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-2500
AMERICAN BANKERS LIFE ASSURANCE COMPANY
OF FLORIDA and AMERICAN BANKERS INSURANCE
COMPANY OF FLORIDA,
                                Plaintiffs-Appellants,
                         v.

DARRELL J. EVANS,
                                         Defendant-Appellee.
                        ____________
          Appeal from the United States District Court
                for the Southern District of Illinois.
         No. 02-CV-126-WDS—William D. Stiehl, Judge.
                        ____________
 ARGUED DECEMBER 13, 2002—DECIDED FEBRUARY 11, 2003
                   ____________


  Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
   ROVNER, Circuit Judge. When Darrell Evans sued
American Bankers Life Assurance Company of Florida,
American Bankers Insurance Company of Florida (collec-
tively “American”), and Lowe’s Home Centers, Inc., in an
Illinois court, American responded by petitioning a fed-
eral court to compel Evans to arbitrate his claims instead.
The district court granted Evans’s motion to dismiss Amer-
ican’s petition for lack of subject matter jurisdiction, and
American appeals. We affirm.
  The Federal Arbitration Act governs the arbitration
agreement in Evans’s cardholder contract but does not
2                                                No. 02-2500

grant independent federal-question jurisdiction and so the
court, after noting that the parties are of diverse citizen-
ship (Evans is an Illinois citizen and American is incorpo-
rated and has its principal place of business in Florida), set
out to determine whether the stakes of an arbitration of
Evans’s claim would exceed $75,000. See 9 U.S.C. § 4; 28
U.S.C. § 1332; Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 25 n.32 (1983); Caudle v. Am.
Arbitration Ass’n, 230 F.3d 920, 922 (7th Cir. 2000); We
Care Hair Dev., Inc. v. Engen, 180 F.3d 838, 840 n.1, 841
(7th Cir. 1999); The Barbers, Hairstyling for Men &
Women, Inc. v. Bishop, 132 F.3d 1203, 1204 (7th Cir. 1997).
Evans’s state-court complaint, in which he sought to rep-
resent a nationwide class of Lowe’s credit card holders,
accused American of violating the Illinois Consumer
Fraud and Deceptive Business Practices Act (“Consumer
Fraud Act”) by charging credit insurance premiums to his
Lowe’s account without his consent but did not request
a specific type or amount of damages, although it did
specify that the damages awarded were “in no event to
exceed” $75,000. The district court properly ignored this
detail—it was neither a limit on recovery, see 735 ILCS 5/2-
604; BEM I, L.L.C. v. Anthropologie, Inc., 301 F.3d 548, 552
(7th Cir. 2002); The Barbers, 132 F.3d at 1205, nor a
demand for $75,000, see De Aguilar v. Boeing Co., 47 F.3d
1404, 1408 (5th Cir. 1995)—and looked instead to the
claim’s actual value, see In re Brand Name Prescription
Drugs Antitrust Litigation, 248 F.3d 668, 671 (7th Cir.
2001), which the court determined included both actual
and punitive damages.
  Evans introduced evidence showing that his actual
damages were low: a letter written to his attorney by
Wendy Hufford, Senior Litigation Counsel for the company
that administers Lowes’s credit program, in which Hufford
stated that Evans had been charged a total of $118.05
in credit insurance premiums and that those charges
had been placed “in dispute” and the coverage cancelled at
No. 02-2500                                                 3

Evans’s request, and an authenticated copy of a credit card
bill indicating that the amount ($118.05) was disputed.
American offered no contrary evidence on the amount
of Evans’s actual damages, but it did offer an affidavit
from a law professor named George Priest who opined
that the total amount in controversy in the case exceeded
$75,000 based on his “research and study of damages
verdicts awarded in Illinois and in other jurisdictions.”
Priest summarized the allegations in Evans’s state-court
complaint and listed the amounts of damages awarded
by courts in several other cases but included no addi-
tional facts about Evans’s claim and offered no opinion on
the outcome of an arbitration of that claim. The district
court reviewed the cases cited in Priest’s affidavit and noted
that some of them included awards for emotional distress
(a type of “actual” damages, as American points out, see,
e.g., Aiello v. Providian Fin. Corp., 239 F.3d 876, 878 (7th
Cir. 2001)), but because there was no evidence (and no
suggestion in the complaint itself) that Evans suffered
emotional distress and, in the court’s view, “no[ ] attempt”
by American to refute Evans’s assertion that his actual
damages were limited to his $118.05 economic loss, the
court adopted Evans’s figure.
  The parties offered no additional evidence on the amount
of punitive damages an arbitrator might award, but the
court noted that Professor Priest averred in his affidavit
that court-awarded punitive damages often exceed compen-
satory damages “by some multiple.” The affidavit did not
offer categorized damages estimates, however, and the
court does not appear to have given it any particular
weight (something American does not argue was error).
Instead, the court observed that a punitive award of nearly
$75,000—one 635 times Evans’s actual damages—was
untenable on the facts before it and thus concluded it was
“sufficiently certain as a matter of federal law” that the
jurisdictional amount was not satisfied. The court cited Del
4                                               No. 02-2500

Vecchio v. Conseco, Inc., 230 F.3d 974 (7th Cir. 2000), in
which we held that no diversity jurisdiction existed over
a suit filed in federal court that depended on a punitive
award 125 times the compensatory damages to satisfy
the amount-in-controversy requirement and noted that
such an award would be excessive.
  American first insists that the district court erred in
failing to accord a presumption of correctness to its own
assessment of the amount in controversy. While it is true
that American, as the federal-court plaintiff, enjoyed such
a presumption initially, see The Barbers, 132 F.3d at 1205,
it lasted only until Evans introduced specific evidence
showing that the real amount was much lower, see, e.g.,
Sapperstein v. Hager, 188 F.3d 852, 856 (7th Cir. 1999); The
Wellness Cmty. (R)-Nat’l v. Wellness House, 70 F.3d 46, 49
(7th Cir. 1995); Rexford Rand Corp. v. Ancel, 58 F.3d
1215, 1218 (7th Cir. 1995). As the party seeking to invoke
federal jurisdiction American bore the ultimate burden
of proof as to the jurisdictional amount. See, e.g., Del
Vecchio, 230 F.3d at 979; Chase v. Shop ‘N Save Ware-
house Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997).
American concedes as much, so we have difficulty under-
standing its argument that the district court was required
to assess an amount for emotional distress damages, for
example, even though American introduced no evidence
on this point. American similarly offered no evidence
tending to show that its conduct was “outrageous” (a
requirement for punitive awards under the Consumer
Fraud Act, see Ekl v. Knecht, 585 N.E.2d 156, 164 (Ill. App.
Ct. 1991)) or even an argument that such evidence ex-
isted but was for some reason unavailable to American.
All American did was point to the theoretical availability
of certain categories of damages, and that is not enough.
Cf. Anthony v. Sec. Pac. Fin. Servs., Inc., 75 F.3d 311, 316-
17 (7th Cir. 1996) (no competent proof of jurisdiction where
plaintiffs relied solely on facts alleged in complaint, which
No. 02-2500                                               5

described conduct not egregious enough to justify punitive
damages under Illinois law).
  American also argues that the district court erred in
relying on Del Vecchio because arbitral awards are not
subject to the judicial review for excessiveness that we
discussed in that case. That is true, see, e.g., Davis v.
Prudential Sec., Inc., 59 F.3d 1186 (11th Cir. 1995), but
ultimately unimportant. Del Vecchio stands for the prop-
osition that, when critically assessing speculative claims
that “assert[ ] a right to punitive damages at the far upper
end of the possible distribution of outcomes,” one factor
courts may consider is whether an award in the neces-
sary amount might be deemed excessive. 230 F.3d at 978-
80. Enforcement of the statutory limits on federal court
jurisdiction is no less important when the underlying
claim involves arbitration; excessiveness cases therefore
provide courts with a helpful benchmark in those cases
as well.
  The judgment of the district court is AFFIRMED. Evans’s
request for sanctions is DENIED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—2-11-03
