By Amelia Frenkel, Keller Postman Associate
This month, the Supreme Court will issue its opinion in TransUnion v. Ramirez, a last-ditch appeal by a credit reporting company from a $40 million verdict on behalf of a class of individuals who were falsely branded as terrorists by that company. Keller Postman filed an amicus brief in the case on behalf of a group of legal scholars advocating for the proper application of the Court’s standing jurisprudence.
The Court will decide whether class members must prove tangible injury, as well as an invasion of their statutory rights, in order to hold TransUnion accountable for its willful violations of the Fair Credit Reporting Act (FCRA). Whatever the Court decides, it will have broad ramifications for class-action plaintiffs. Will plaintiffs be able to hold defendants accountable in class actions for a wide variety of statutory violations, or will private rights of action cease to be an effective enforcement mechanism for key consumer-privacy and other rights?
In 2011, class representative Sergio Ramirez visited a California car dealership with his wife and father-in-law. Mr. Ramirez found a car he wanted to buy, but after the dealership pulled his credit report, the salesperson informed him that the dealership could not sell him the car because he was on “a terrorist list.”
Mr. Ramirez requested a copy of his credit report, which had been prepared by TransUnion. In response, he received two separate mailings: one containing his credit report and a summary of rights; the second informing Mr. Ramirez “[a]s a courtesy” that his name “is considered a potential match to information listed on the [terrorist] database.”
Mr. Ramirez sued TransUnion on behalf of himself and thousands of other consumers who were falsely labeled as terrorists, who requested copies of their credit reports, and who received misleading and incomplete disclosures about the alerts, all in violation of the FCRA.
The case went to trial, and a jury found in favor of the class, awarding each member statutory and punitive damages. The Ninth Circuit reduced the award of punitive damages but otherwise affirmed the judgment. The Supreme Court granted TransUnion’s petition for certiorari, which raised novel standing issues that had not previously been considered in the case.
At the Supreme Court, TransUnion is arguing that unnamed class members lack standing, and that Mr. Ramirez’s claims were atypical of the class based on his testimony at trial regarding the consequences to him of TranUnion’s lawless reporting—notwithstanding that he suffered the same statutory violations as every member of the class.
Keller Postman attorneys Ashley Keller, Warren Postman, Zina Bash, Ellyn Gendler, and myself filed an amicus brief on behalf of legal scholars supporting the class, focusing on the standing question. In the amicus brief, we urged the Court to consider that the plaintiffs’ injuries, while thoroughly modern, are akin to other intangible injuries that were historically cognizable by courts.
That argument is one that has long been championed by Justice Thomas, most notably in his concurrence in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). There, Justice Thomas explained that “[c]ommon-law courts possessed broad power to adjudicate suits involving the alleged violation of private rights”—those “belonging to individuals, considered as individuals”—which “traditionally included rights of personal security (including security of reputation), property rights, and contract rights.”
As reported by Reuters, the amicus brief emphasized that Justice Thomas’s previous opinions “had the ‘insight’ to clarify that ‘the violation of private rights created by Congress suffices to create Article III standing, without imposing uncodified elements beyond what Congress required.’”
During oral argument on March 30, counsel for the class, Samuel Issacharoff, echoed the amicus brief, opening with the point that “[t]he common law has long recognized a concrete interest in economic reputation and afforded an inferred remedy without proof of actual damages.”
If the Court adopts that argument, as our amicus brief urged, it will give new teeth to Fair Credit Reporting Act and other consumer-protection statutes, which had been diminished by Circuit-level precedent limiting the circumstances in which plaintiffs could challenge violations of their rights.
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*As of April 2022, the firm has changed its name from Keller Lenkner to Keller Postman.
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