The Supreme Court of the United States recently held that a plaintiff must suffer a concrete injury resulting from a defendant's statutory violation to have Article III standing to pursue damages from that defendant in federal court.
The Court also held that plaintiffs in a class action must prove that every class member has standing for each claim asserted and for each form of relief sought.
Justice Kavanaugh wrote the majority opinion, which was joined by Chief Justice Roberts as well as Justices Alito, Gorsuch, and Barrett. Justice Thomas, often considered the Court's most conservative member, wrote a dissent joined by Justices Breyer, Sotomayor, and Kagan. Justice Kagan also wrote a separate dissent that was joined by Justices Breyer and Sotomayor.
A copy of the opinion is available at: Link to Opinion
The road to this momentous ruling began at a car dealership where the plaintiff sought to finance the purchase of a vehicle. When running a credit check, the dealership received a TransUnion credit report indicating that the plaintiff's name matched a name on a list of "specially designated nationals" maintained by the United States Department of Treasury's Office of Foreign Assets Control. The OFAC list contains the names of terrorists, drug traffickers, and other serious criminals deemed to be a threat to national security. After seeing his credit report, the dealership refused to sell a car to the plaintiff.
The following day, the plaintiff called TransUnion to request a copy of his credit file pursuant to 15 U.S.C. § 1681g(a)(1). TransUnion fulfilled the request and included a copy of the CFPB's summary of rights as required by 15 U.S.C. § 1681g(c)(2). The documents sent to the plaintiff omitted the OFAC alert, so the following day TransUnion sent the plaintiff a second letter explaining that his name potentially matched a name on the OFAC list. However, the second letter did not include the CFPB's summary of rights.
The plaintiff subsequently filed suit against TransUnion, asserting three claims under the Fair Credit Reporting Act (FCRA): (1) that in utilizing the OFAC list, TransUnion failed to follow reasonable procedures to ensure the accuracy of information in violation of 15 U.S.C. § 1681e(b); (2) that by omitting the OFAC information from the credit file TransUnion initially mailed to plaintiff in response to his request, TransUnion failed to provide plaintiff with all information in his credit file in violation of § 1681g(a)(1); and (3) that by failing to include another copy of the summary of rights in the second mailing to plaintiff, TransUnion violated § 1681(c)(2).
The plaintiff also asserted those three claims on behalf of a class of all people in the United States to whom TransUnion mailed a follow-up OFAC notice without a summary of rights — i.e., those who received a mailing like the second mailing received by the plaintiff. There were 8,185 people in the class, but only 1,853 of them had their credit reports sent to creditors during the relevant time period.
The plaintiff prevailed on all three claims at trial and the jury awarded over $60 million ($984.22 in statutory damages and $6,353.08 in punitive damages for each member of the class). On appeal, the Ninth Circuit agreed that all members of the class had Article III standing, but reduced the punitive damages award to just under $4,000 per class member, which brought the overall award to roughly $40 million.
The Supreme Court granted certiorari.
The Supreme Court's opinion focused on whether each member of the class suffered a "concrete" injury and further developed its analysis of concreteness provided five years earlier in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016).
In particular, the Court elaborated on the limits of Congress's power to create statutory injuries that can form the basis of a lawsuit in federal court. After all, as the Court held in Spokeo, "Article III requires a concrete injury even in the context of a statutory violation." And this means that "[o]nly those plaintiffs who have been concretely harmed by a defendant's statutory violation may sue that private defendant over that violation in federal court."
In further describing those Congressional limits, the Court cited recent FDCPA decisions from the Seventh and Eleventh Circuits. The Court agreed with the Eleventh Circuit (Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 999, n. 2 (11th Cir. 2020)) that Congress's "say so" does not make an injury concrete. The Court also quoted the Seventh Circuit opinion written by then-Judge (now Justice) Barrett in Casillas v. Madison Avenue Assocs., Inc., 926 F. 3d 329, 332 (7th 2019) to explain that "'Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.'"
In determining whether the class members had standing, the Court examined whether the alleged injury bore a "close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts," here the harm to one's reputation resulting from defamation.
Starting with the 1,853 class members whose credit reports were disseminated to creditors, the Court noted that American law has long recognized that a person is injured when a defamatory statement is published to a third party. Therefore, class members whose credit reports were published to third parties were injured because those reports flagged them as potential terrorists.
Although the credit reports merely alerted users to a potential match on the OFAC list and did not falsely assert that any class member was a terrorist, the Court held that the harm associated with being described as a potential terrorist bears a sufficiently close relationship to being called a terrorist. Therefore, the Court affirmed the finding of standing on the § 1681e(b) claim for the plaintiff and the 1,853 members of the class whose credit reports were disseminated by TransUnion.
The SCOTUS then turned to the 6,332 class members whose credit reports were not disseminated and questioned whether they suffered a concrete injury from the mere existence of an inaccurate credit file that was never published to a third party. The Court determined that publication is necessary for a concrete injury, comparing an unpublished credit report with a defamatory letter that is hidden in a desk drawer instead of mailed.
The Court also rejected the plaintiff's argument that all class members had standing because they were subjected to a material risk of future harm based on the potential later release of their credit reports. The Court's prior decision in Spokeo noted that a risk of future harm can sometimes satisfy the concreteness requirement, so long as the risk is sufficiently imminent and substantial.
In Ramirez, the Court took the opportunity to explain that a plaintiff exposed to a risk of future harm may sometimes have standing to pursue injunctive relief to prevent that harm from occurring, but a mere exposure to risk is insufficient to confer standing to seek retrospective damages. Because their credit reports were never published, the Court reversed the finding of standing for the other 6,332 class members on the § 1681e(b) claim.
The SCOTUS then addressed whether the class members had standing to pursue what it called the "disclosure claim" (based on the omission of OFAC information from the credit file sent to class members pursuant to § 1681g(a)) and the "summary-of-rights claim" (based on the failure to send another summary of rights with the follow-up mailing that contained the OFAC information).
The plaintiff argued that all class members suffered a concrete injury because they were deprived of their right to receive information in the format required by the FCRA, but the Court rejected this argument because there was no evidence that any class member suffered a harm that bore a close relationship with a harm traditionally recognized as providing a basis for a lawsuit in American courts. Indeed, there was no evidence that anyone other than the plaintiff himself even opened the two mailings, much less that anyone acted or failed to act based on the information contained in those mailings.
Although Congress can elevate to legally cognizable the harm associated with the denial of information subject to public disclosure, the Court again cited Casillas and Trichell in pointing out that the FCRA, like the Fair Debt Collection Practices Act, is not a public-disclosure law.
The Court then turned to Trichell once more in noting the failure to identify any "downstream consequences" resulting from the defective disclosures: "An 'asserted informational injury that causes no adverse effects cannot satisfy Article III.'" Therefore, the Court held that none of the class members had standing to pursue damages for the "disclosure claim" or the "summary-of-rights claim."
IMPACT ON CONSUMER LITIGATION
In the wake of Spokeo, the federal circuit and district courts were divided on whether a statutory violation, on its own, was sufficient to confer standing. For example, the Sixth Circuit in Macy v. GC Services Ltd. Partnership, 897 F.3d 747 (6th Cir. 2018), held that an alleged violation of a disclosure provision of the FDCPA was itself enough to confer standing, a holding that was expressly rejected by the Seventh Circuit in Casillas. The Supreme Court's ruling in Ramirez appears to resolve this split and essentially makes Casillas and Trichell the law of the land.
Going forward, plaintiffs who merely allege a technical violation of a consumer-protection statute, with no associated concrete injury, lack standing to pursue that claim in federal court. Also, even if the plaintiff can prove that he suffered a concrete injury as the result of a statutory violation, he or she will be unable to represent a class unless he or she can also prove that every putative class member suffered a concrete injury as well.
In other words, gone are the days in which a plaintiff could pursue class recovery based solely on the fact that every member of the class received the same allegedly defective letter.
In his dissent, Justice Thomas notes that the Ramirez decision gives defendants like TransUnion more than they bargained for because consumers are often able to pursue violations of federal statutes in state court and defendants will be unable to remove those cases to federal court when the plaintiff lacks Article III standing.
For cases now pending in federal court that are subject to dismissal due to lack of standing, defendants should evaluate whether those cases can be filed again in state court. Some states have savings statutes that extend the time to file if the limitations period expired while the case was pending in federal court. Other states lack savings statutes or have savings statutes that apply only in limited situations.
Also, because many cases will undoubtedly be filed in state court going forward, defendants should familiarize themselves with the standing doctrines applied in various state courts.
Ralph T. Wutscher
Maurice Wutscher LLP
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