The Supreme Court granted cert in Ramirez v. TransUnion LLC to consider “whether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.” This development is a welcomed opportunity for clarity in the standing context as it applies to class actions.

Troutman Pepper previously reported on the Ramirez case, which can be found here. The underlying case involved a product offered by TransUnion to identify consumers with names designated by the Department of the Treasury’s Office of Assets Control (“OFAC”) as posing a national security threat (i.e., terrorists, drug traffickers). The product applied a warning label on reports of consumers whose names matched those on the OFAC list. Class members argued at trial that TransUnion failed to follow reasonable procedures to assure the maximum possible accuracy of the warning due to the name-only search used to establish matches. They further argued that TransUnion failed to comply with certain disclosure requirements under the FCRA. The jury ultimately awarded a $60 million verdict. TransUnion appealed on various grounds, including that many of the class members lacked Article III standing.

On appeal, the Ninth Circuit held that “every member of a class certified under Federal Rule of Civil Procedure 23 must satisfy the basic requirements of Article III standing.” The Court went on, however, to rule that a “material risk of harm” was sufficient to confer standing to each class member. The “material risk of harm” for over 75% of class members was an internal report at Trans Union that was not disclosed to any third party. The Ninth Circuit held that “a real risk of harm arose when TransUnion prepared the inaccurate reports and made them readily available to third parties,” even though the first time many class members will have known they were injured at all will be when they receive a check in the mail. The class representative’s factual allegations contrasted with those of the vast majority of the class as his report had purportedly been disclosed to a third party and resulted in an adverse decision (not being able to purchase a car).

While the Supreme Court is difficult to predict, recently-elevated Justice Amy Coney Barrett penned a Seventh Circuit decision on standing in Casillas v. Madison Avenue Associates, Inc., No. 17-3162, Slip Op. (7th Cir. June 4, 2019). In Casillas, the Court found “a bare procedural violation, divorced from any concrete harm” is not sufficient to confer Article III standing – or put more simply “no harm, no foul.” Troutman Pepper previously reported on Casillas here.

Troutman Pepper will continue to follow this breaking development.