Frank Cruz-Alvarez is a Partner with Shook, Hardy & Bacon L.L.P. in the firm’s Miami, FL office, and Britta Stamps Todd is an Associate in the firm’s Kansas City, Mo office. Mr. Cruz-Alvarez is the WLF Legal Pulse’s Featured Expert Contributor on Civil Justice/Class Actions.
On June 25, 2021, the Supreme Court handed down its decision in TransUnion LLC v. Ramirez, the most highly-anticipated case of this term for class action practitioners. This 5-4 decision can largely be considered favorable for class action defendants, though it has the potential to make some defendants wary of what they’ve wished for.
As discussed in more detail in Washington Legal Foundation’s amicus brief and our prior blog post about the case, this class action stemmed from TransUnion’s practice of designating individuals as a “potential match” to a Name Screen Alert on the Treasury Department’s Office of Foreign Assets Control (“OFAC”) List—a list consisting of terrorists, drug traffickers, and other serious criminals with whom it is generally unlawful to do business. TransUnion compared only first and last names before placing this “potential match” designation on an individual’s credit report, unsurprisingly leading to false positives for thousands of law-abiding individuals. The named plaintiff was denied the ability to purchase a vehicle at a car dealership because this designation appeared on his credit report. Mailings he subsequently requested and received from TransUnion contained formatting errors.
The named plaintiff sued TransUnion on behalf of a putative class of people whose credit reports also contained this incorrect designation, alleging three violations of the Fair Credit Reporting Act. The district court certified the class and the case proceeded to trial. Before trial, the parties stipulated that: (1) the class contained 8,185 members; and (2) only 1,853 members of the class had their credit reports disseminated by TransUnion to potential creditors. The jury returned a verdict for the plaintiffs awarding statutory and punitive damages totaling more than $60 million. A Ninth Circuit panel affirmed the case in relevant part.
The Supreme Court examined whether the 8,185 class members have Article III standing as to each of their three FCRA claims. On appeal, TransUnion did not dispute that it’s practices violated the FCRA. The question was whether all 8,185 class members suffered a “concrete” injury as a result of the FCRA violations and had standing to join the suit. Writing for the majority, Justice Kavanaugh twice announced: “No concrete harm, no standing.” Chief Justice Roberts, along with Justices Alito, Gorsuch, and Barrett, joined Justice Kavanaugh in holding that only plaintiffs concretely harmed by a private defendant’s statutory violation have Article III standing to seek damages against that defendant in federal court. Translation: only the 1,853 class members whose credit reports were published to a potential creditor suffered a concrete harm and had standing to sue TransUnion for damages.
The publication of misleading information, akin to a common law defamation claim, rises to the level of a concrete harm according to the majority. But where the misleading information appeared only in a credit report in TransUnion’s files and was not transmitted to potential creditors, it was not “published,” and caused no injury in fact. Likewise, the Court concluded that only the named plaintiff himself showed evidence of harm for the remaining FCRA violations regarding the formatting of the reports. Because the class members “[did] not demonstrate that they suffered any harm at all from the formatting violations,” they lack Article III standing for those claims. Slip op. at 25. While the Ninth Circuit is left to determine whether class certification is appropriate in light of the Court’s conclusion on standing, practitioners can take away several lessons from this opinion.
First, after differing interpretations of what constitutes “concrete” injuries by courts across the country in the wake of Spokeo, Inc. v. Robins, 578 U. S. 330 (2016), the Court provided much-needed guidance on what harms can be classified as “concrete.” While physical and monetary harms tend to be quite obvious, courts have struggled with the concreteness of intangible harms given Spokeo’s caution that a statutory violation alone does not qualify as an injury in fact. “[U]nder Article III, an injury in law is not an injury in fact.” Slip op. at 11. Here, the Court further clarified that intangible harms can be considered concrete if they are “injuries with a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.” Slip op. at 9. This standard will require plaintiffs to identify “a close historical or common-law analogue for their asserted injury.” Id. Defendants can look forward to more analogies to older case law as plaintiffs attempt to make this connection for their claims going forward.
Second, although the 6,332 class members whose credit reports were never sent to potential creditors could not satisfy the standard articulated by the Court, they argued that the risk of future harm nonetheless met the concrete-harm requirement. Here, the Court pointed out the distinction between injunctive relief and actual damages. While a person exposed to a risk of future harm can sue for injunctive relief to prevent an imminent and substantial harm from occurring, the person does not necessarily have standing to seek retrospective damages. If and when the risk of future harm materializes, the person will have an injury and a basis for damages. But if the risk of future harm does not materialize, and the person did not suffer some independent harm (such as an emotional injury), they lack any concrete harm sufficient for Article III standing.
In addition to clarification on what “concrete” means, the Court also expounded on Congress’s ability to legislate harms. Quoting D.C. Circuit Judge Katsas sitting by designation on the Eleventh Circuit, the Court emphasized that “we cannot treat an injury as ‘concrete’ for Article III purposes based only on Congress’s say-so.” Slip op. at 11 (quoting Trichell v. Midland Credit Mgmt., Inc., 964 F. 3d 990, 999, n. 2 (11th Cir. 2020)). The Court drew a line between “(i) a plaintiff’s statutory cause of action to sue a defendant over the defendant’s violation of federal law, and (ii) a plaintiff ’s suffering concrete harm because of the defendant’s violation of federal law.” Id. A plaintiff is not automatically granted standing to sue a private defendant for violation of a statute as enacted by Congress—the violation must concretely harm the plaintiff to confer standing. Absent this requirement, the Court warns, Congress’s power to authorize lawsuits for virtually anything would remain unchecked. This elevates the concrete-harm requirement from an often-overlooked pleading standard to a separation of powers issue.
All that said, because Article III standing is a creature of federal law and practice, the Court clarified that although federal courts may not be able to adjudicate suits where the plaintiff cannot demonstrate a “concrete harm”, Article III does nothing to bar state courts from adjudicating such suits. Indeed, Justice Thomas’ footnotes in his dissent notes that the majority’s decision “might actually be a pyrrhic victory” for defendants. Slip op. dissent at 18, n. 9 (Thomas, J., dissenting). Congress is not prohibited from legislating statutory rights—federal courts just lack jurisdiction to hear some of the resulting cases. State courts are not bound by Article III or other federal rules of justiciability, even when they examine issues of federal law. But state courts may end up as the sole forum for such cases, as state courts can hear federal statutory claims (unless a law explicitly states otherwise) and defendants cannot remove a case where the plaintiff lacks Article III standing to federal court. Hence, defendants must be careful what they wish for, lest they find themselves stuck in an undesirable state court venue.
When putting this opinion into practice, every class member must establish Article III standing for every claim and every remedy sought in federal court. And at least in the context of defamation, risks of future harm alone are not sufficiently concrete to confer Article III standing. Class action practitioners are again left waiting further direction on actual Rule 23 issues. Although the parties had teed up a discussion of typicality, the Court punted on the issue, saying, “In light of our conclusion about Article III standing, we need not decide whether [the named plaintiff’s] claims were typical of the claims of the class under Rule 23.”
Finally, the majority’s decision drew two dissenting opinions. Justice Thomas’s dissent, joined by Justices Breyer, Sotomayor, and Kagan, boils down to a disagreement over Congress’s power to legislate harms. Justice Thomas points out the novelty of the concept of an “injury in fact,” and cites to many examples of statutory violations that form the basis for valid suits. Because no one disputes that a jury found TransUnion violated each class member’s individual rights, Justice Thomas would hold that the plaintiffs have a sufficient injury to sue in federal court. Justice Kagan (who joined Justice Thomas’s dissent) wrote a separate dissenting opinion to clarify that although Justice Thomas believes “any violation of an individual right created by Congress gives rise to Article III standing,” she adheres to the view espoused in Spokeo that “Article III requires a concrete injury even in the context of a statutory violation.” Slip op. dissent at 3 (Kagan, J., dissenting). Justice Kagan reasoned that “Congress is better suited than court to determine when something causes a harm or risk of harm in the real world,” so her difference of opinion with Justice Thomas would only come into play in highly unusual cases.