TransUnion LLC v. Ramirez: SCOTUS Puts A Lid On Class Actions Brought In Federal Court To Merely Redress Statutory Violations Without Class Members Suffering Any Concrete Harm
By Melinda S. Kollross
The United States Supreme Court’s decision in TransUnion LLC v. Ramirez, ___ U.S. ___, 114 S. Ct. 2190 (2021), is significant to the insurance and defense bar as it may represent a formidable obstacle for class action plaintiffs’ lawyers to overcome in bringing statutory private right of actions for damages, costs, and attorney’s fees when class members have suffered at best only theoretical instead of concrete harms from a defendant’s violation of a statute. The Court issued a 5-4 split decision with Justice Kavanaugh authoring the majority opinion joined by Justices Roberts, Alito, Gorsuch and Barrett, and Justice Thomas dissenting with Justices Kagan, Breyer, and Sotomayor joining in his dissent.
Ramirez involved the Federal Fair Credit Reporting Act, which creates a cause of action for consumers to sue and recover compensatory and punitive damages and attorney’s fees for certain violations of the Act. The case arose when TransUnion wrongly and erroneously added a terrorist/drug trafficking alert to the credit reports of certain consumers. Defendant Ramirez was one such consumer who wrongly had an alert placed on his credit report that he might be a terrorist, drug trafficker or other criminal. Ramirez discovered the error when he could not purchase an auto on credit, and he filed a class action lawsuit against TransUnion for violating the Act. A class of 8,165 members was certified, but only 1,853 members of the class including Ramirez had the damaging credit reports disseminated by TransUnion to potential creditors. The remaining 6,332 class members had wrong alerts in their individual credit files, but that wrong information had not been disseminated to any third parties.
The case proceeded to trial where the jury returned a verdict for the class plaintiffs awarding each class member $984.22 in statutory damages and $6, 353.08 in punitive damages for a total award of more than $60 million. The Ninth Circuit in a split decision affirmed but reduced the punitive damages. A dissenting Ninth Circuit judge argued that only the 1,853 class members whose reports were disseminated by TransUnion to third parties had standing under Article III of the United States Constitution to sue and recover damages.
The Supreme Court agreed that the 1,853 class members whose reports were disseminated to third parties suffered concrete harm and thus had Article III standing to pursue damages in a private action under the Act. As to the other 6,332 class members who merely had wrong information in their credit files that was not disclosed to any third party, the Court held they had suffered no concrete harm and therefore lacked the necessary standing to bring a private right of action under the Act.
The Court further ruled that none of the 8,165 class members except for the named plaintiff Ramirez could recover damages because of TransUnion’s violation of the Act’s formatting requirements for disclosure of credit information. The class claimed that TransUnion’s mailings of credit reports to them were “formatted incorrectly and deprived them of their right to receive information in the format required by statute”. But the Court ruled that except for the named plaintiff Ramirez, there was no showing that any other class member opened the mailings they received from TransUnion or had relied on the information sent in any way. According to the Court, “without evidence of harm caused by the format of the mailings”, these violations were mere procedural, statutory violations divorced from concrete harm which could not support Article III standing.
The Court emphasized that merely because a statute grants a person a statutory right and authorizes that person to sue to vindicate that right does not by itself satisfy the injury in fact requirement of Article III standing. Even where a defendant violates a statute, a plaintiff could not bring suit to recover damages for that statutory violation unless the plaintiff could show that he/she was “concretely harmed” by the statutory violation. In simple words, the Supreme Court said: “No concrete harm, no standing”.
Learning Points: Justice Thomas’ dissenting opinion shows just how much of an impact Ramirez might have in future class action litigation involving statutory right of actions. Justice Thomas’ dissent indicates that the days might be over when class plaintiffs’ lawyers can sue for just procedural, statutory violations, pocketing millions of dollars in attorney’s fees without showing that each individual class member has suffered a specific concrete harm. In describing the majority opinion, Justice Thomas stated:
This approach is remarkable in both its novelty and effects. Never before has this Court declared that legal injury is inherently insufficient to support standing.” (Emphasis in original)
One litigation area where Ramirez type arguments should be analyzed and made is in defending class action lawsuits now being bought in federal court in Illinois claiming violations of the Illinois Biometric Information Privacy Act. (BIPA) My colleagues Brian Riordan and Alexander Brinson of our Technology & Cyber Group recently provided our friends in the insurance and business community with an update on standing to sue issues involving the Illinois Biometric Information Privacy Act prior to the release of the Ramirez decision. They showed that in decisions issued prior to Ramirez, courts had allowed plaintiffs to file BIPA claims in federal court, and to find standing for those claims, if plaintiffs could “craft” allegations that BIPA violations caused personal and particularized harm. Certainly, the Ramirez analysis and decision might now prove to be an additional defense “arrow in the quiver” to defeat future actions under BIPA, where, despite “crafty” allegations, only procedural, statutory violations are being alleged without the necessary concrete harm Ramirez now requires.