Should a class action lawsuit pursuing statutory damages be allowed under Article III or Federal Rule of Civil Procedure 23 when the majority of the class members did not experience harm as severe as that suffered by the named plaintiff?
This case asks the Supreme Court to determine whether Article III or the typicality requirement of Federal Rule of Civil Procedure 23 (“FRCP”) should allow a class action claiming statutory damages when most of the class members did not suffer actual injury, or an injury similar to that of the class representative. Petitioner TransUnion, LLC (“TransUnion”) argues that in order for a class in a statutory damages action to have standing under Article III, each absent class member must show common concrete injury and, if future risk constitutes the injury, must demonstrate that such risk is certainly impending. TransUnion asserts that to achieve typicality under FRCP 23, a class representative’s facts must be substantially shared with those of the rest of the class. Respondent Sergio L. Ramirez (“Ramirez”) counters that a class may show Article III injury by demonstrating that the harm caused by a statutory violation is analogous to that of common law claims. Ramirez also asserts that the typicality requirement is satisfied when a class representative shares the same interest and has suffered injury common to the absent class members. This case involves questions of how the Court should weigh the role of class actions and statutory damages in protecting consumers against the due process rights of litigants.
Questions as Framed for the Court by the Parties
Whether either Article III or Federal Rule of Civil Procedure 23 permits a damages class action when the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.
In February 2011, Sergio Ramirez (“Ramirez”) went to a Nissan dealership and decided to buy a new car with his wife. Ramirez v. TransUnion LLC at 1017. After running a joint credit check on Ramirez and his wife, the dealership informed Ramirez that they could not complete the purchase because his name matched one appearing on a “terrorist” list maintained by the Department of the Treasury’s Office of Foreign Assets Controls (“OFAC”). Id. The salesman refused to provide Ramirez with a copy of this report, but ultimately agreed to sell the couple the car under his wife’s name. Id.
Ramirez contacted TransUnion LLC (“TransUnion”), the credit reporting agency (“CRA”) that had prepared the report. Id. at 1018. TransUnion repeatedly denied that there was an OFAC alert attached to his name, and so Ramirez requested a copy of his credit report. Id. The copy he received included a front page with instructions on how to dispute inaccurate information, and a "Summary of Rights" under the FCRA. Id. at 1018–19. The next day, TransUnion sent an additional letter confirming the OFAC match. Id. at 1019. After Ramirez submitted a written request in March 2011, the company removed the OFAC alert from any future reports. Id.
In February 2012, Ramirez filed a putative class action in federal court against TransUnion, alleging that the company’s actions had violated the Fair Credit Reporting Act (“FCRA”) by failing to “follow reasonable procedures to assure maximum possible accuracy” of consumer information, and by providing incomplete disclosures about the resulting errors. Id. at 1022. Under Rule 23 of the Federal Rules of Civil Procedure (“FRCP”), the district court certified a class of over eight thousand individuals who had OFAC alerts falsely attached to their reports and who had received a response from TransUnion similar to that given to Ramirez. Id. The jury found for the class on all claims and awarded approximately $8 million in statutory damages and $52 million in punitive damages. Id. After the court denied TransUnion’s motions for a new trial or an amended judgment, inter alia, the company appealed to the Ninth Circuit. Id.
On appeal, TransUnion contended that class members whose false information had not been accessed by third parties lacked Article III standing because unlike Ramirez, these plaintiffs had not suffered a “concrete injury.” Id. at 1024. The Ninth Circuit held that while a violation of a statutory right does not in and of itself establish such an injury, the class members in this case had all suffered a “material risk of harm to their concrete informational interests” sufficient to confer standing. Id. at 1029–30. The false OFAC alerts had the potential to create severe harm, and it was exactly this risk the statute was intended to address. See id. at 1025–29. Second, TransUnion argued that the district court should have granted its motions challenging the verdict as a matter of law because Ramirez had failed to prove that TransUnion had acted willfully in violation of the FCRA. Id. at 1030. Given that TransUnion had recently been subject to a similar lawsuit, however, the court found that the jury was reasonable to conclude otherwise. Id. at 1033. TransUnion also claimed that the district court should not have certified the class in the first place, because Ramirez’s claims were not “typical” as required by Federal Rule of Civil Procedure 23. Id. The court determined that, to the contrary, Ramirez’s injuries were “not so unique, unusual, or severe to make him an atypical representative of the class.” Id. Finally, while the Ninth Circuit upheld the jury’s award of statutory damages, it agreed with TransUnion that the punitive damages were unconstitutionally excessive. Id. at 1034, 1037.
ESTABLISHING ARTICLE III STANDING
TransUnion argues that Ramirez’s class fails to establish Article III standing because each individual member is unable to establish concrete and particularized injury in fact. Brief for Petitioner, Trans Union LLC at 25, 34. TransUnion asserts that the Court’s requirement that the plaintiff demonstrate an actual, or imminent, concrete and particularized injury remains fundamental to establishing standing in cases where Congress has granted private citizens a statutory right, such as the claims brought by Ramirez under the Fair Credit Reporting Act (“FCRA”). Id. at 26–27. According to TransUnion, the Court’s precedent has determined that the injury-in-fact standard must be applied to every class member. Id. at 34. TransUnion contends this precedent departs from the Ninth Circuit’s approach that did not require individualized evidence of injury. Id. at 33. TransUnion argues that Ramirez is not able to show injury in fact relating to the disclosure claim because their violations of FCRA’s disclosure provision were technical and did not harm any of the 8,184 class members. Id. at 30. TransUnion argues the violation involved sending required information in two envelopes, rather than one, and that Ramirez provided no evidence at trial that any absent class members were confused by the dual letter process or even opened the letters at all. Id. at 31. TransUnion contends that the dual letter process comported with the FCRA’s purpose of ensuring that citizens are provided credit files upon request and granted avenues to remedy inaccurate information. Id. at 32. TransUnion further maintains that the effectiveness of the dual letter process, and the lack of concrete injury, is demonstrated by the fact that upon receiving the mailings, Ramirez himself contacted TransUnion, leading to the removal of the OFAC alert from his file. Id.
TransUnion argues that Ramirez similarly fails to show injury in fact relating to the reasonable procedures claim because the class’s definition again focuses on individuals who received their credit files in the dual letter process, rather than on individuals who suffered concrete harms in connection with TransUnion’s database maintenance practices. Brief for Petitioner at 35. TransUnion posits that the aim of the FCRA’s reasonable procedures provision is to safeguard accurate transmission of credit information to third parties. Id. TransUnion argues that Ramirez’s claim is not relevant to that aim because the class membership was not defined by credit rejections precipitated by the dissemination of inaccurate information to third parties by TransUnion. Id. at 36. TransUnion argues that Ramirez’s stipulation that the majority of the class members did not have their credit reports disseminated to a third party during the class period demonstrates that the inaccuracies on the class members’ credit reports did not constitute injury-in-fact. Id. at 36–37. TransUnion reasons that the Court should reject the Ninth Circuit’s finding that the material risk caused the dissemination of credit reports constituted injury-in-fact because the Court’s precedent has clarified that such risk must be “certainly impending” to constitute injury-in-fact. Id. at 38–39.
Ramirez contends that the class has established Article III standing because all of its members can show injury analogous to that of the common law cause of action for damages to reputation caused by publication of false and defamatory statements. Brief for Respondent, Sergio L. Ramirez at 24–25. Ramirez argues that courts have long permitted claims arising from statutory violations to proceed based on similar analogies to common law. Id. at 24. Ramirez claims that the Ninth Circuit correctly identified that the OFAC designation assigned by TransUnion to the credit reports of the class members implicated reputational and privacy interests that are parallel to the rights protected by the common law tort of defamation. Id. at 25. Ramirez contends that TransUnion’s argument that its statutory violations associated with the public disclosure claim were only technical does not account for the fact that its misconduct in the implementation of the dual mailing process was intentional. Id. at 35. Ramirez noted that Congress had created specific obligations of credit reporting agencies and clear mechanisms by which to fulfill those obligations. Id. Ramirez asserts that TransUnion’s failure to provide notice of the OFAC alert invalidated the enclosed summary of rights and that the second letter, which framed TransUnion’s notification of the OFAC alert as a courtesy to the confusion of class members. Id. at 34–35. Ramirez contends that TransUnion’s attempt to mislead the Treasury Department in relation to its communications with consumers evidences the intentional nature of TransUnion’s statutory violation. Id. at 36. Ramirez further maintains that TransUnion’s arguments on Article III standing are fundamentally misguided due to their reliance on evidence presented at trial as a means to address the threshold question of the validity of the class’s standing. Id. at 41.
Ramirez also contends that TransUnion’s argument against the merits of the reasonable procedures claim is misguided because TransUnion mischaracterized the length of the class period as seven months and narrowly construed the scope of publication in relation to the class members’ credit reports. Id. at 27–31. Ramirez argues that TransUnion conflated elements from the class definition, which encompassed individuals who proactively requested their credit reports from TransUnion during a particular seven-month period, with the class period which allows for actionable claims over a forty-six month period, under the statutory provisions of the FCRA. Id. at 31. Ramirez asserts that if TransUnion provided the credit reports of 1,853 of the class members to third parties during the seven-month period, the likelihood that they provided the credit reports of all the remaining class members over the forty-six month period is significant. Id. at 30–31. Ramirez further maintains that, contrary to TransUnion’s narrow conception, the common law provides that publication in a defamation case occurs when the defamatory statement is read by any comprehending person and may be completed through intra-corporate communications. Id. at 28–29. Ramirez contends that TransUnion published the defamatory information in the course of its contracting with third-party vendors as well as in its internal corporate communications. Id. at 29. Ramirez thus concludes that the jury reasonably decided that TransUnion published defamatory information relating to the class members during the class period. Id. at 31.
TransUnion argues that the class must be decertified because Ramirez fails to establish the typicality requirement of Rule 23(a)(3) of the FRCP. Brief for Petitioner at 43. TransUnion argues that due process concerns underlying the typicality requirement require that the class representative share legal claims and factual positions with the absent class members. Id. at 44. TransUnion contends the typicality requirement is particularly relevant to a class seeking statutory damages because an atypical class representative could be less obvious when individualized harms are less likely to be obvious to the factfinder due to the statutory damages scheme such as that of the FCRA. Id. at 45–46. TransUnion argues that Ramirez was not a typical member of the class because of the unique disappointment and embarrassment that he testified to experiencing, such as the incident at the car dealership and canceling a vacation, while no other class members expressed similar experiences. Id. at 46. TransUnion argues that the Court should reject the Ninth Circuit’s holding that typicality required only a shared theory of liability and should find instead that Ramirez was an atypical class representative because the other members did not share the same underlying factual situation. Id. at 48.
Ramirez contends that the Court should affirm the lower court’s holding that the class has met the typicality requirement because TransUnion’s contrary assertion relies on an incorrect, original interpretation that construes the requirement to demand that a class representative can be neither strong nor weak in relation to the class members. Brief for Respondent at 42–43. Ramirez argues that the courts have instead universally interpreted the typicality requirement to stand for the principle that the class representative should have the same interest and have suffered the same injury as the class members. Id. at 43. Ramirez argues that this principle safeguards the interests of the absent class members by ensuring that their claims are adequately covered by the class representative. Id. Ramirez asserts that typicality under TransUnion’s interpretation would instead be an instrument to bar the selection of class representatives with compelling facts. Id. Ramirez argues that TransUnion has failed to cite to any case law that follows its interpretation of typicality or that applies typicality towards the end of excluding sympathetic class representatives. Id. at 42–43. Ramirez argues that even assuming TransUnion’s interpretation, typicality would be present because his facts in relation to the claims for statutory damages are precisely the same as the other class members, namely the inaccurate information in the credit files disclosed in the dual letter process. Id. at 44.
The Retail Litigation Center, Inc. (“RLC”) argues in support of TransUnion that the certification of a large and disparate class of plaintiffs in an action for statutory damages is unnecessary. Brief of Amicus Curiae Retail Litigation Center, Inc., in Support of Petitioner at 16. RLC notes that the rationale behind class actions is that they deter wrongdoing by allowing individuals who have suffered injuries too small to otherwise justify a lawsuit to pursue legal remedy for actions that have nevertheless caused a substantial amount of damage in the aggregate. Id. at 15. Likewise, statutory damages incentivize would-be plaintiffs by establishing higher available awards. Id. at 16. RLC argues that combining these two remedies into a single action therefore encourages excessive litigation. Id. at 17. In particular, RLC contends, it emboldens class-action attorneys to pursue lawsuits involving large classes of “unwitting” and unharmed plaintiffs, seeking damages incommensurate with the harm that the defendant has caused. Id. eBay Inc. et al. (“eBay”) argues that even successful claims offer little benefit to injured consumers, who “receive de minimis payments while class counsel pockets tens of millions in fees.” Brief of Amici Curiae eBay Inc. et al., in Support of Petitioner at 21. RLC asserts that such suits are also harmful to consumers because they result in over-deterrence, forcing agencies to incur unnecessary compliance costs and discouraging them from otherwise beneficial practices in fear that they will be used as an excuse to sue. RLC at 17. The Consumer Data Industry Association (“CDIA”) further argues that with this increased liability, CRAs may raise the price of consumer reports, which creditors rely on to reduce the risk of bad debt. Brief of Amicus Curiae Consumer Data Industry Association, in Support of Petitioner at 19–20. CDIA contends that this could result in increased interest rates, and lead to some consumers being excluded from the credit market altogether. Id. at 24. Notably, CDIA asserts, this would most seriously impact “borrowers that have traditionally faced systemic bias” from mainstream credit institutions. Id. at 20.
Ramirez counters that Congress enabled consumers to bring actions for statutory damages precisely because these claims are “the only practical way to protect consumers’ interests in fair and accurate credit reporting.” Brief for Respondent, Sergio L. Ramirez at 19. In support of Ramirez, Public Justice maintains that these provisions were enacted in response to the “material risk of real harm” stemming from inaccurate reporting, specifically including the reputational and privacy harms suffered by plaintiffs in this case. Brief of Amicus Curiae Public Justice, in Support of Respondent at 9. Statutory damages are needed to remedy these injuries, Public Justice asserts, because they are substantial but often difficult to quantify. Id. at 11–12. However, National Consumer Law Center (“NCLC”) argues, the penalty of damages is necessary to ensure that CRAs comply with the FCRA mandate that the agency follow reasonable procedures to assure maximum accuracy. Brief of Amici Curiae National Consumer Law Center et al., in Support of Respondent at 9–10. NCLC contends that consumers have little recourse otherwise: “A consumer cannot meaningfully dispute inaccurate items of information on a credit report if the CRA never discloses to the consumer that certain information is on the credit report in the first instance.” Id. at 18.
FAIRNESS TO LITIGANTS
In support of TransUnion, RLC asserts that combining class actions and statutory (“no-injury”) damages would also create unfairness to CRAs as defendants. RLC at 17–18. RLC maintains that because these lawsuits typically involve large numbers of plaintiffs, the potential liability puts enormous pressure on defendants to settle even meritless claims. Id. Further, RLC contends, large classes make it harder for defendants to put on individualized defenses. Id. at 19. As Home Depot Inc., et. al (“Home Depot”) notes, this may lead to a violation of the defendant's due-process right to “present every available defense.” Brief of Amici Curiae The Home Depot, Inc. et al., in Support of Petitioner at 9. The larger the class, RLC maintains, the more probable it is that the injuries claimed by the named plaintiff will not be representative of those suffered by most others in the class. RLC at 19. Home Depot argues that statutory-damage class actions therefore also present a particular threat to a defendant’s “substantive right to pay damages reflective of their actual liability,” because the jury is likely to award damages based on the representative’s injury rather than the “lesser or nonexistent” harm to the majority. Home Depot at 9.
Ramirez counters that, should the Court accept TransUnion’s arguments, defendants in class actions would be able to unfairly exclude plaintiffs with particularly strong claims. Brief for Respondent at 43. Ramirez emphasizes that the Rule 23 standard of typicality is not intended as a means to protect defendants. Id. In support of Ramirez, Electronic Frontier Foundation asserts that courts have widely held that the bar for plaintiffs to meet this standard is low, in recognition of the important role of class actions in protecting consumer rights. Brief of Amicus Curiae Electronic Frontier Foundation, in Support of Respondent at 21. Ramirez argues that plaintiffs in class actions often suffer different degrees of harm, and if “different damage amounts defeated typicality, it would be almost impossible to maintain a class suit.” Brief for Respondent at 49, fn.14.
- Alison Frankel, Unlikely Bedfellows in TransUnion SCOTUS case: Justice Thomas and Class Action Fans, Reuters (Mar. 11, 2021).
- Rucha Desai, Do All Class Members Have Standing for Mere Statutory Violations? The Supreme Court Will Decide, The National Law Review (Feb. 17, 2021).