On March 30, 2021, the Supreme Court will hear oral argument in the case of TransUnion LLC v. Ramirez. In this case, the Court will address the type of injury required by Rule 23 of the Federal Rules of Civil Procedure and Article III of the U.S. Constitution for a class of plaintiffs to sue where the injury alleged by the class representative is different (and arguably greater) than the injury alleged by the remaining class members.
Ted Frank, Director, Center for Class Action Fairness, Hamilton Lincoln Law Institute
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Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Micah Wallen: Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is a Courthouse Steps Oral Argument Teleforum for TransUnion LLC v. Ramirez. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups and RTP at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today, we are fortunate to have joining us Ted Frank, who is Director of Litigation and Senior Attorney for the Hamilton Lincoln Law Institute. After Ted has his opening remarks, we will then open up the floor for a live audience Q&A.
Thank you for sharing with us today. Ted, the floor is yours.
Ted Frank: Thank you. Today I'm discussing today's Supreme Court oral argument in TransUnion v. Ramirez. Conflict of interest disclosure: I have clients currently adverse to clients represented by counsel for the respondents in several courts of appeals right now, so take what I say with the appropriate grain of salt.
The Fair Credit Reporting Act, which this case is a jury verdict from, permits actual or statutory damages for violations. Credit reporting agencies are required to follow reasonable procedures to assure "maximum possible accuracy when preparing the consumer report." They are also required to clearly and accurately disclose to the consumer all information in the consumer's file along with a summary of rights.
But, as we know from the Supreme Court case of Spokeo v. Robins, the Supreme Court doesn't think that the creation of statutory damages by Congress is enough to create Article III jurisdiction by itself. A plaintiff must have standing requiring an injury in fact, one that is "concrete and particularized," and under Clapper v. Amnesty International, not just that, but an injury that has either already materialized or is "certainly impending." The risk of an injury by itself is not enough.
Article III standing requires a concrete injury even in the context of a statutory violation. So, in Spokeo, an "error procedural violation" in a statute without real-world injury is insufficient to create Article III standing in federal jurisdiction. Now, Spokeo has been the clearest decision and holds that intangible injuries might satisfy standing so long as they're concrete. You look up concrete in the dictionary and it means tangible, so good luck litigating that.
The Spokeo Court indicated that an alleged intangible harm that has a close relationship to a harm that has traditionally been regarded as providing a basis for a loss in English or American courts would count. For Fair Credit Reporting Act, you might have something close to a defamation claim if there's inaccurate information on your credit report that's given to a third party.
Now, Sergio Ramirez, the respondent here, is the lead plaintiff in a class action under the FCRA against petitioner, TransUnion. There's a different person named Sergio Ramirez who is listed on a watch list database maintained by the government's Office of Foreign Assets Control. We'll call that the OFAC watch list. Terrorists and drug dealers that U.S. businesses are not allowed to do business with and there are very severe penalties if you do.
TransUnion's database flagged Ramirez as "a potential match" if somebody asked for a credit report on anybody named Sergio Ramirez. Normally, that's not a problem. The report says this is a potential match and makes clear that you're supposed to do further inquiry.
For Sergio, however, he went to a car dealer. The car dealer got a credit report from a third party that was using the TransUnion data, and that third-party report didn't say potential match; it said "match." Mr. Ramirez had an embarrassing situation as he was buying his car and trying to find credit for it. He was embarrassed in front of his family members, including in-laws, and he even canceled a vacation because of the difficulties he had getting credit at the car dealer.
He might have some potential damages. He asked TransUnion for his credit report, and he got two envelopes: one with a standard credit report and the required disclosures and a second envelope that did not contain the disclosures but listed the fact that he was listed as a potential match with the OFAC watch list.
He sued, and he sued as a class action. This was not a class action on behalf of people who have been denied credit or even on behalf of people of who had arguably inaccurate credit reports disseminated listed as potential matches, but instead, the class consisted of 8,000 people who had received that second envelope about the OFAC database instead of getting it in a single envelope. Over 6,000 of these people had never had a credit report disseminated to a third party, and that was [inaudible 00:06:04].
But Ramirez argued it should still be a class of 8,000 people because all 8,000 people received their credit reports in this non-compliant format—in two envelopes instead of one—so people could get their summary of rights that the law required with the OFAC information but separately.
The district court certified the class shortly after Spokeo was decided, accepting the argument that the two separate envelopes was sufficient injury to satisfy Article III standing. And it went to trial. The trial, of course, in this class action focused on the sad story of Ramirez's embarrassment, and the jury awarded very close to the maximum statutory damages of $1,000, $984.22 in statutory damages for each of the 8,000-plus class members, and then another $6,353 in punitive damages for every class member, so the total verdict was more than $60 million.
TransUnion protested the class certification on appeal, arguing that the majority of the class didn't have an Article III injury, and the district court erred in holding that only the class representative needed to have an Article III injury. The Ninth Circuit agreed that the district court got it wrong when it said only the class representative needed an Article III injury, but in a 2-1 decision, held that the technical violation of two envelopes was sufficient to satisfy Article III because of the potential harm to consumers.
TransUnion took that question up to the Supreme Court. The second question presented was about Rule 23(a) class certification. A class representative is supposed to have claims typical of the class, and Ramirez's injuries were fairly unique in that he wasn't listed as a potential match, but he was actually listed as a match and suffered real consequences for it that there wasn't evidence that any other class member had suffered. But the trial focused on those atypical consequences.
Nevertheless, the Ninth Circuit held, again 2-1, that typicality is satisfied so long as there is some common denominator tying the representative and class together. This is essentially the same thing as the Rule 23(b) commonality standard, which would write the typicality standard out as a separate inquiry.
TransUnion got a cert grant and argued that the procedural violation of two envelopes isn't a concrete injury, in part because there was no evidence of confusion, and so there could not be standing for the over 6,000 class members who had never had an inaccurate credit report disseminated even if you assume that the credit report is inaccurate for simply saying it's a potential match.
And, TransUnion continued, even if there was standing, the class shouldn't have been certified at all with this sort of trial because of the typicality issues. Typicality is important in a class action because if you have a bad plaintiff with unusually bad claims or defenses, it could unfairly prejudice the class.
While on the other hand, allowing a class to be represented by an atypically sympathetic plaintiff would deprive defendants of the rights that due process guarantees because it gives plaintiffs the practical advantage of being able to litigate not on behalf of themselves but on behalf of a perfect plaintiff who can expose the jury to inflammatory evidence and arguments that could not be presented in the suits of absent class members if they sued individually.
In a class action, you have the class representative and he's supposed to be bringing typical claims of the class and then you decide the results for the class based on the claims of the class representative. If the class representative isn't typical, you get unusually bad results. This is especially problematic in a statutory damages case because there's no chance of individualizing inquiry into actual damages.
In this case, nearly everything Ramirez testified about had nothing to do with the two separate envelopes that was binding him to the rest of the class. It was, rather, about what had happened to him long before he had asked for the credit report and got those two envelopes. Thus, TransUnion argued, the class shouldn't be certified and the verdict thrown out.
In response, Ramirez argued for the Spokeo standard that Justice Thomas argued for in his concurrence in Spokeo. Justice Thomas distinguished between causes of action for public rights and causes of action for private rights. After all, when the country was founded, you could sue for intangible injury such as trespass or nominal damages for any number of things, and his view of Article III standing and injury in fact is that Congress can't invent rights to sue the government over public rights, but when it comes to private rights, it's within the legislative authority to do that sort of thing without the sort of inquiry that the Court was requiring in Spokeo.
Ramirez goes on to argue that typicality is really just a commonality function. They belittled TransUnion's argument about typicality as a Goldilocks standard. That it's enough for the plaintiffs' claims to be common, and you can't throw out a representative for being atypical just because he's too good or not good enough. He calls it the Goldilocks standard because then the only representative who could be typical is one who's "just right," and argued that the Ninth Circuit got it right on typicality.
The SG had an interesting brief on behalf of neither side saying that there was standing on behalf of the entire class to vindicate the statutory rights that Congress created, but that there were typicality issues under Rule 23(a), and there should be a remand to consider those questions.
At oral argument, Justices Thomas and Sotomayor weren't having any trouble with the Article III questions, but it did seem that a majority of the Court would go along with it, at least for the 6,000 class members who had never had a credit report disseminated. Justice Roberts might even go farther, saying that what's the inaccuracy for being called a potential match.
But, as Justice Kavanaugh asked respondents, when is risk of harm enough to get you standing? Clapper holds that that's not enough. My guess is that there's a majority of the Court to say that. Now, how that will actually shake out. Do you certify a class and the class can only have actual injury in fact, or is it just the particular facts of this case where you can specifically carve out people as not having an Article III injury in fact? That remains unclear.
One thing the justices were playing with is can you simply remand and slice out the 6,000 as members, and then cut down the $80 million verdict to, say, $18 million or whatever it would be? Of course, TransUnion fought back against that, coming back to the typicality issue.
A couple of justices, most notably Sotomayor, bought into the idea that typicality is a trial issue. That if you have an atypical class representative and he tries testifying about something atypical, well, you address it with objections at trial. Don't testify about your personal experiences because that's not typical. And get jury instructions about the specific damages across the class, which TransUnion complained they weren't allowed to do either, but they didn't raise the jury instructions on appeal; they raised the typicality and class certification issues.
In my eyes, at least, the typicality issue is -- if this plaintiff is typical, then the typicality standard, quite simply, disappears. It's not clear that the justices understand that that's how class actions work, and you might have sea change where typicality now gets litigated on a question-by-question basis over the course of a trial rather than at the class certification stage.
With respect to the standing question, my initial thoughts going into this were that the Biden administration was sort of trying to parse out an intermediate [inaudible 00:16:51] and get the case thrown out on typicality, hoping that Roberts' Court's, dare I say, typical view of narrow decisions might just reverse on typicality grounds without reaching the issues of whether it's appropriate to certify a class where standing isn't consistent across the class.
There did seem to be a lot of interest in the Court on deciding the standing questions. How this comes out is a bit of a mystery to me, but it does seem that TransUnion will win at least a partial victory here, but I could be wrong.
Happy to hear your questions.
Micah Wallen: All right. Thank you, Ted. We'll now open up the floor for an audience Q&A.
Ted Frank: Please identify yourself before asking the question.
Micah Wallen: Absolutely. Callers, if you have a question, once you join the line, just identify yourself before asking your questions. In the meantime, I'd also like to give out a reminder to keep an eye out for emails announcing upcoming Teleforum calls. You can also consult the full schedule of our upcoming Teleforum calls on The Federalist Society's website at fedsoc.org. Also available there are podcasts of previously recorded Teleforum calls that you may have missed as well as on iTunes, Spotify, and Google Play.
Not seeing any questions lighting up the lines immediately. Ted, is there anything else you wanted to cover about the case today?
Ted Frank: I think I covered everything, but I'm happy to answer any questions people have, or if I've exhausted people's interest in the case, I'm happy to close things out.
Micah Wallen: All right. Absolutely. On behalf of The Federalist Society, I'd like to thank your expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at firstname.lastname@example.org.
Thank you all for joining us, and we are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.