Friday, June 25, 2021
Today the Supreme Court issued its decision in TransUnion LLC v. Ramirez (covered earlier here). It’s 5-4, with Justice Kavanaugh writing the majority opinion joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Barrett. Justice Thomas writes one dissent, which is joined by Justices Breyer, Sotomayor, and Kagan. And Justice Kagan writes another dissent, which is joined by Justices Breyer and Sotomayor.
The case is a class action bringing claims under the federal Fair Credit Reporting Act (FCRA), and the key issue in the case is Article III standing. The majority finds that Article III was satisfied for some class members and claims, but was not satisfied for others. From the majority’s introduction:
In this case, a class of 8,185 individuals sued TransUnion, a credit reporting agency, in federal court under the Fair Credit Reporting Act. The plaintiffs claimed that TransUnion failed to use reasonable procedures to ensure the accuracy of their credit files, as maintained internally by TransUnion. For 1,853 of the class members, TransUnion provided misleading credit reports to third-party businesses. We conclude that those 1,853 class members have demonstrated concrete reputational harm and thus have Article III standing to sue on the reasonable-procedures claim. The internal credit files of the other 6,332 class members were not provided to third-party businesses during the relevant time period. We conclude that those 6,332 class members have not demonstrated concrete harm and thus lack Article III standing to sue on the reasonable-procedures claim.
In two other claims, all 8,185 class members complained about formatting defects in certain mailings sent to them by TransUnion. But the class members other than the named plaintiff Sergio Ramirez have not demonstrated that the alleged formatting errors caused them any concrete harm. Therefore, except for Ramirez, the class members do not have standing as to those two claims.
This was not the result that we urged in this legal scholars amicus brief, which was joined by myself, Tommy Bennett, Erwin Chemerinsky, Heather Elliott, Steve Vladeck, and Howard Wasserman. We had argued in favor of Article III standing for the entire class as to all of the claims they proved at trial. One point that we made, however, found some purchase in Justice Thomas’s dissenting opinion—that rejecting Article III standing in federal court would not necessarily stop these same federal claims from being pursued by these same plaintiffs in state court. Here’s footnote 9 from the Thomas dissent:
Today’s decision might actually be a pyrrhic victory for TransUnion. The Court does not prohibit Congress from creating statutory rights for consumers; it simply holds that federal courts lack jurisdiction to hear some of these cases. That combination may leave state courts—which “are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law,” ASARCO Inc. v. Kadish, 490 U. S. 605, 617 (1989)—as the sole forum for such cases, with defendants unable to seek removal to federal court. See also Bennett, The Paradox of Exclusive State-Court Jurisdiction Over Federal Claims, 105 Minn. L. Rev. 1211 (2021). By declaring that federal courts lack jurisdiction, the Court has thus ensured that state courts will exercise exclusive jurisdiction over these sorts of class actions.
As to Article III standing generally, Justice Thomas’s final paragraph is notable:
Ultimately, the majority seems to pose to the reader a single rhetorical question: Who could possibly think that a person is harmed when he requests and is sent an incomplete credit report, or is sent a suspicious notice informing him that he may be a designated drug trafficker or terrorist, or is not sent anything informing him of how to remove this inaccurate red flag? The answer is, of course, legion: Congress, the President, the jury, the District Court, the Ninth Circuit, and four Members of this Court.
In addition to Article III standing, TransUnion presented a question regarding whether the class action satisfied Rule 23(a)’s typicality requirement. The Court did not address that question, however: “In light of our conclusion about Article III standing, we need not decide whether Ramirez’s claims were typical of the claims of the class under Rule 23. On remand, the Ninth Circuit may consider in the first instance whether class certification is appropriate in light of our conclusion about standing.”