On June 25, 2021, in TransUnion LLC v. Ramirez, a 5-4 majority of the US Supreme Court appeared to hand another victory to defendants facing lawsuits under federal statutes that impose stiff penalties regardless of proof of injury. The plaintiff argued that he and a certified class were entitled to statutory penalties under the federal Fair Credit Reporting Act (FCRA) because the alleged misreporting of personal information caused concrete injury. The Supreme Court disagreed, holding that a plaintiff and class members, proceeding under the FCRA, must prove not only that their statutory rights were violated but also that the violation caused each of them a “‘concrete’ injury.”
Not every FCRA plaintiff can prove concrete injury—indeed, Ramirez hypothesized that erroneous credit reporting statements that flag individuals as potential terrorists might possibly violate the FCRA. As the opinion sets forth, anyone seeking relief in federal court, including named plaintiffs and class members in class action lawsuits, must have a “personal stake” in the case represented by concrete injury.
To demonstrate such a stake, Justice Brett Kavanaugh writing for the majority explained, plaintiffs must show an injury “that the defendant caused and the court can remedy.” Such a requirement, Justice Kavanaugh continued, guarantees that a court only deals with “a real controversy with real impact on real persons.” There are, Justice Kavanaugh noted, different kinds of injuries that can qualify as the kind of concrete harm needed for “standing” – that is, the legal right to sue. Physical and financial injuries are the most common and obvious, but intangible injuries, such as an injury to a plaintiff’s reputation or the disclosure of private information, can also qualify. Thus, TransUnion appears to limit standing in federal court under the FCRA and similar federal and state statutes, such as the Telephone Consumer Protection Act (TCPA) and the Illinois Biometric Information Privacy Act, to more clearly defined concretely injured plaintiffs.
This outcome may prove to have certain advantages and disadvantages for class action lawyers. Notably, however, the Supreme Court did not address key class certification issues, including when a court must make a determination of when absent class members have Article III standing and whether it is appropriate to certify a class where not absent class members have such standing.
Ramirez sued TransUnion after he realized during a credit check at a car dealership that his credit report, issued by TransUnion, flagged him as a potential suspected terrorist. Following up with TransUnion, Ramirez received two mailings confirming that, according to TransUnion, Ramirez’s name was a potential match with two names on the terrorist watch list. In his lawsuit, Ramirez asserted that he and everyone else TransUnion had flagged as potential matches—about 8,000 other consumers—had a cause of action under the Fair Credit Reporting Act.
At trial, Ramirez won a $40 million verdict on behalf of himself and the certified class. After losing in the US Court of Appeals for the Ninth Circuit, TransUnion filed a writ of certiorari which the Supreme Court granted. At the Supreme Court, TransUnion argued that about 6,000 members of the class had no concrete injury, as TransUnion had not disclosed their credit reports to third parties, and that the class certification determination was flawed. Ramirez contended that the injury was sufficiently concrete for Congress to grant a private cause of action to all members of the class, and that in any event, concrete harm existed because TransUnion had created false reports and mailed, at minimum, to the class member in the report.
TransUnion raises a similar standing issue the Supreme Court addressed in Spokeo v. Robins, about which Morgan Lewis has written previously. In Spokeo, the Court held that plaintiffs must establish a concrete injury even in the context of a statutory violation. The named plaintiff in that case alleged that Spokeo had violated the FCRA by publishing incorrect information about him on the internet and harming his employment prospects.
While the Ninth Circuit found the violation of a statutory right sufficient to confer standing, the Supreme Court disagreed, holding that a bare procedural violation, such as an incorrect zip code, could not qualify as a concrete injury. In making this determination, the Court homed in on Congress's intent to elevate an injury to a concrete harm, and whether the alleged injury bears a close relationship to a harm that has traditionally been recognized in common law.
“No concrete harm, no standing.”
The 5-4 majority said this at the beginning and again at the end in their opinion, as though repetition will help would-be federal plaintiffs and putative class action members understand that simply being on the receiving end of a statutory violation is not enough for standing, or the right to sue, in federal court, even if Congress grants a private cause of action for the violation.
The Court considered whether federal courts can certify consumer classes if the majority of class members have not alleged the type of concrete injury necessary to establish Article III standing, even if the named plaintiff suffered an injury meeting this bar. The parties stipulated prior to trial that TransUnion had provided misleading credit reports containing US Treasury Department Office of Foreign Assets Control (OFAC) alerts to third parties of only 1,853 members of the class during the period specified in the class definition. The majority concluded that the 6,332 class members whose credit reports TransUnion did not provide to third parties did not suffer a concrete harm and thus did not have standing. The majority further determined that even though all 8,185 class members with OFAC alerts in their credit fields alleged formatting defects in certain mailings TransUnion sent to them, only the lead plaintiff had demonstrated that the alleged defects caused him concrete harm, thus only he could move forward with those claims. According to the majority, the remaining class members failed to explain how the formatting error prevented them from requesting corrections to prevent future harm.
The case completes a years-long arc to restrict what have come to be known as “no-injury” suits, often involving class actions. “Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court,” the majority emphasized. “The mere existence of inaccurate information, absent dissemination, traditionally has not provided the basis for a lawsuit in American courts,” the majority wrote, adding that while the Court “has recognized that material risk of future harm can satisfy the concrete-harm requirement in the context of a claim for injunctive relief to prevent the harm from occurring, at least so long as the risk of harm is sufficiently imminent and substantial,” in this instance the 6,332 class members have not demonstrated that the risk of future harm materialized.
Notably, the Court did not decide critical class certification issues. For instance, the majority made clear that it was not deciding “the distinct question whether every class member must demonstrate standing before a court certifies a class” (footnote 4), whether Ramirez’s claims were typical of the claims of the class under Rule 23, or even whether a class should have been certified under the circumstances.
Four members of the Court, Justices Clarence Thomas, Stephen Breyer, Elena Kagan and Sonia Sotomayor, dissented in two opinions, contending that courts should not second-guess the concreteness of an injury that Congress deems worthy of a private cause of action, that all class members in the case actually suffered a concrete injury, or both. “One need only tap into common sense to know that receiving a letter identifying you as a potential terrorist is harmful,” Justice Thomas wrote in one dissent. “All the more so when the information comes in the context of a credit report, the entire purpose of which is to demonstrate that a person can be trusted.”
Is TransUnion really a victory for the defense bar, plaintiff bar, or a little of both? While cloaked as a consumer protection case about accurate credit reports, TransUnion is a high-level constitutional law discussion over standing. Although Transunion did not resolve key class issues connected to the standing questions, the decision will have important implications for class actions going forward.
First, although TransUnion and Spokeo clearly bar claims that are based on a bare procedural violation of a statute, TransUnion may increase the likelihood that nationwide class actions will be filed and litigated in state court. This potential implication, particularly in light of the Class Action Fairness Act of 2005 (CAFA), was not entirely lost by the dissent.
In a possibly prophetic footnote, Justice Thomas observes that the Court’s ruling “might actually be a pyrrhic victory for TransUnion,” as plaintiffs may be able to pursue their FCRA claims in state court, depending upon the standing principles, if any, of that particular state. These rulings have potentially profound implications, at least for putative class actions brought under the FCRA and similar federal and state statutes that provide for damages and other relief without proof of concrete injury. Going forward, crafty plaintiffs’ lawyers may file putative class actions under these statutes in state courts that may employ more flexible or more limited standing principles or seek remand after such cases are removed to federal court. This may intensify the trend created by Spokeo and further the trend of filing certain nationwide class actions in state court, based entirely on federal causes of action. It is hard to think of a development more at odds with the congressional purposes in enacting CAFA as well as more duplicative and less efficient.
Second, Transunion may foreclose or limit the scope of certain putative class actions. There are some statutory claims under state law that cannot be brought as class actions. Other state procedural rules may limit the scope of any putative class action, such as to state-specific claims. Therefore, if the plaintiffs cannot establish concrete harm sufficient to establish Article III jurisdiction, then plaintiffs can only bring them as individual claims in state court or may be limited in the scope of any putative class. Further, in states that have adopted standing requirements mirroring Article III or other similar requirements, this ruling presumably will foreclose bringing a lawsuit in those states. Further, the limits on personal jurisdiction might foreclose the ability to file in other states. Together, this might result in no forum to hear some federal statutory claims.
In addition, civil rights class action lawsuits might never be the same. Often in civil rights enforcement plaintiffs employ “testers” who pretend to be trying to buy a home or taking out a loan at a branch to uncover instances of overt or subtle discrimination. Could critical analysis and testing of lending practices be deemed not concrete injury in the future?
Third, another implication is that class action plaintiffs may try to narrow the scope of their proposed class definitions in federal putative class actions, so that all putative class members would have Article III standing—in an effort to avoid the very post-trial outcome in TransUnion. This may result in more limited classes in federal court. However, it also may trigger a proliferation of related class actions in state court over the same conduct by the same defendant, where the putative state class would cover those uninjured putative class members (excluded by the putative federal class) lacking Article III standing.
It is unclear what impacts congressional action could have going forward but, at minimum, Congress should figure out how to reconcile legislation designating the wider class as injured and Congress’s clearly expressed intent in CAFA to keep interstate class actions out of state courts.
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