The following is a case update written by Everett L. Green, an attorney with the U.S. Department of Justice, analyzing a recent decision of interest:
In TransUnion LLC v Ramirez, the United States Supreme Court held that a plaintiff must suffer a concrete injury to have Article III standing to pursue damages for a statutory violation in federal court.
A copy of the decision is located here.
In 2011, a car dealership refused to sell a car to Sergio Ramirez because his credit report indicated that he was on a terrorist list. TransUnion, one of the big three credit reporting agencies, placed an alert in Ramirez’s credit report indicating that he was a potential match to a name on a list of specially designated nationals—terrorists, drug traffickers, and serious criminals—deemed a threat to national security. The alert was a mistake. Fearful of the consequences of being identified as a terrorist, Ramirez cancelled a planned trip out of the country, consulted a lawyer, and petitioned TransUnion to remove the terrorist alert from his file.
Ramirez requested and received a copy of his credit report from TransUnion. The credit report did not mention the terrorist alert. TransUnion mailed a second letter informing Ramirez that he was a potential match to someone in the specially designated nationals database but the letter did not reveal that this information was in his credit report, did not include a summary of rights required by the Fair Credit Reporting Act, and did include information on how to dispute the mistaken designation.
Ramirez then filed a putative class action, alleging that TransUnion violated the Fair Credit Reporting Act. The Act seeks to promote fair and accurate reporting and to protect consumer privacy. See 15 U.S.C. § 1681 et seq.
Ramirez alleged that TransUnion violated the Fair Credit Reporting Act in three ways. First, the Fair Credit Reporting Act requires consumer reporting agencies to follow reasonable procedures to “assure maximum possible accuracy” in consumer reports. Ramirez alleged that TransUnion violated this requirement by failing to follow reasonable procedures to ensure the accuracy of information in his credit file.
Second, the Act provides that consumer reporting agencies must, upon request, disclose to the consumer all “information in the consumers file at the time of the request.” 15 U.S.C. § 1681g(a). Ramirez alleged that TransUnion violated this section because the first mailing he received did not notify him that his name was a potential match to a name on the list of specially designated nationals.
Finally, the Act compels consumer reporting agencies to provide a consumer with each written disclosure by the agency and a summary of rights prepared by the Consumer Financial Protection Bureau. 15 U.S.C. § 1681g(C)(2). Ramirez alleged that the second mailing he received violated this subsection.
Over TransUnion’s objections, the district court certified a class of 8,185 individuals who had been mistakenly labeled as potential matches to the list of specially designated nationals, requested their credit reports, and received the same two-part correspondence as Ramirez.
Of these individuals, 1,853 had their credit reports furnished to third parties. The jury found for the class on all of Ramirez’s claims, awarding each class member $984.22 in statutory damages and $6,353.08 in punitive damages for a total award of $60 million.
The district court then denied TransUnion’s motions challenging the verdict. On appeal, the Ninth Circuit affirmed in part. After reducing the damages award, the Ninth Circuit held that all members of the class had Article II standing to recover damages. The Supreme Court granted certiorari.
REASONING & HOLDING
The Supreme Court focused on whether the various subclasses of plaintiffs had standing—whether each class member could demonstrate (i) that they suffered an injury in fact that is concrete, particularized and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.
The Supreme Court held that in determining whether an alleged harm is concrete, the alleged injury must have a close relationship to a harm traditionally recognized in American history and tradition. American history and tradition recognize tangible harms such as physical and monetary harms and intangible harms such as reputational harms and disclosure of private information. If a defendant causes this type of harm to a plaintiff, that plaintiff has suffered a concrete injury in fact.
Importantly, the Court noted that a plaintiff must satisfy this analysis even in the context of a statutory violation. A concrete injury in fact does not arise simply because Congress grants a party a statutory right to sue under a statute. To hold otherwise, according to the Court, would allow Congress to authorize virtually any citizen to bring a statutory damage claim against virtually any defendant who violated virtually any federal law, a result that would flout constitutional text, history, and precedent.
Applying these principles to the two groups of plaintiffs produced disparate outcomes.
With respect to the 1,835 class members whose misleading credit reports were disseminated to third party businesses, the Supreme Court reasoned that the harm from being labeled a potential terrorist bears a sufficiently close relationship to the harm from a false and defamatory statement. Under longstanding America law, a person is injured when a defamatory statement “that would subject him to hatred, contempt or ridicule” is published to a third party. Labeling plaintiffs, including the named plaintiff, a potential terrorist, drug trafficker, or serious criminal could quite obviously subject plaintiffs to hatred, contempt, or ridicule. Those class members suffered a concrete injury in fact under Article III.
The harms alleged against the remaining 6,332 class members, however, were different. While TransUnion maintained the false labels in its internal files, it did not disseminate credit reports for these class members to any third parties. The mere presence of an inaccuracy in an internal credit file, absent disclosure to a third party, causes no concrete harm. Publication is an essential element of defamation, a letter that is not sent does not harm anyone, no matter how insulting the letter is. Even the risk of future harm did not provide a concrete injury in fact since plaintiffs did not present evidence that each class member was independently harmed and future harm was too speculative.
The Court quickly dismissed the remaining claims that TransUnion failed to disclose to the consumer all information in the consumers file at the time of the request and failed to include a summary of rights in the second mailing plaintiffs received.
Plaintiffs argued that TransUnion’s mailings deprived them of their right to receive information in the format required by the Fair Credit Reporting Act. The Court rejected this argument, holding that Plaintiffs presented no evidence that, other than Ramirez, class members opened the mailings and there was no evidence that they suffered concrete harm.
This decision involved the Fair Credit Reporting Act. Yet, the court’s analysis and application of Article III standing apply equally to all federal statutes. As the Supreme Court admonished, if a plaintiff cannot establish that they suffered a harm recognized by American history and tradition “there is no case or controversy for the federal court to resolve.”
A plaintiff must demonstrate that they suffered a harm recognized by American history and tradition even where Congress creates causes of action for consumers to sue and to recover damages. The Court was insistent—Article III standing requires a concrete injury even in the context of a statutory violation; litigants have no “freewheeling power” to hold a defendant liable for a statutory violation.
This analysis is portentous and may limit claims under other federal statutes that allege procedural violations of a statute without evidence of concrete harm.
For example, in Fair Debt Collection Practices Act (“FDCPA”) cases, some district courts have applied TransUnion and found that plaintiffs lack standing. In Kale v. Procollect, Inc., No. 2:20-CV-2776, 2021 WL 2784556, at *3–4 (W.D. Tenn. July 2, 2021), the district court dismissed an FDCPA class action, finding that the named plaintiff lacked standing because the complaint only “alleged procedural violations of the FDCPA.” In reaching this determination, the court held that, in TransUnion, the Supreme Court recognized that “risk-of-harm analysis applies only in suits seeking injunctive relief and cannot be used to establish standing in a suit for damages.” Id.
These materials were written by Everett L. Green, an attorney with the U.S. Department of Justice, Office of the United States Trustee, who is a member of the ad hoc group and a member of the Business Law Section’s Executive Committee. Editorial contributions were made by the Honorable Meredith Jury (United States Bankruptcy Judge, C.D. Cal., Ret.), also a member of the ad hoc group. Thomson Reuters holds the copyright to these materials and has permitted the Insolvency Law Committee to reprint them. This material may not be further transmitted without the consent of Thomson Reuters.