Hitz

I. Introduction

In this case we modify a $13,971,830 judgment in a class action which challenged the assessment of fees by First Interstate Bank (FICAL) against breaching credit card customers who failed to make minimum monthly payments when due or exceeded their credit limits. We reduce the judgment by $9,076,304, which represents the amount the trial court found to be net revenue or benefit from finance charges imposed by FICAL on delinquent and overlimit balances. We hold FICAL was entitled to retain such revenue because the interest provided for in the credit card agreement remained chargeable after the breach thereof. Further, such revenue cannot be treated as gain made possible only by the breaches, and thus is not an offset against FICAL’s recoverable actual damages, because FICAL could have made similar loans to other customers had the breaches never occurred. We also hold that the underlying credit card agreements invoke the provisions of Civil Code section 1671, subdivision (d), prescribing the standard of invalidity of liquidated damages in a consumer contract for services, and that substantial evidence supports the remaining $4,895,526 portion of the…