Casualty Litigation

‘TransUnion v. Ramirez’: High Court Rules Article III Standing Requires Proof of Concrete Injury

‘TransUnion v. Ramirez’: High Court Rules Article III Standing Requires Proof of Concrete Injury

In  March 2021, the Supreme Court heard arguments in TransUnion LLC v. Ramirez, a case that had potential to significantly impact plaintiffs’ abilities to sue for the violation of federal statutes. The Court released its opinion on June 25, 2021, holding that plaintiffs have standing to sue a private defendant for a statutory violation only if they suffer a concrete injury. “No concrete injury, no standing,” said the Court in an opinion penned by Justice Brett Kavanaugh.

Until now, courts have struggled to define the contours of what injuries are sufficiently “concrete” to afford a plaintiff keys to the courthouse doors. The Ramirez opinion further developed that standard, sharpening an already-useful tool in the defense-bar’s toolbox and spurring additional considerations for counsel when litigating federal statutory violations in federal court.

The Standing Doctrine: A Brief Overview

Article III confines the federal courts to resolving “Cases” and “Controversies.” From this textual hook arises the standing doctrine, which requires (i) that a plaintiff suffer an “injury in fact” that must be concrete, particularized, and actual or imminent; (ii) that the injury be traceable to the defendant; and (iii) that the injury would likely be redressed by a favorable decision. Ramirez turns on the concreteness element embedded in the first prong of this test.

In what might sound like word soup to some, the Court previously defined “concrete” to mean “real, and not abstract.” Two factors guide this inquiry: (1) whether the plaintiffs alleged harm has a “close relationship” to a harm that has historically provided the basis a lawsuit (e.g., defamation); and (2) Congress’s judgment in enacting the statutory prohibition at issue. Whether the plaintiff seeks damages or injunctive relief also affects the analysis.  

Ramirez: The Facts

TransUnion is one of three major credit reporting agencies (the other two being Equifax and Experian) that compile consumer information and sell it to banks, landlords, car dealerships, and other businesses, which request information about consumers’ creditworthiness. Those entities are subject to hefty fines if they transact with persons on the Office of Foreign Assests Conrol (OFAC) list, which brandishes the full gamut of international terrorists and drug traffickers. TransUnion, meanwhile, saw an opportunity to create a product called OFAC Name Screen Alert that alerts businesses if a consumer’s name matches with a name on the OFAC list.

Ramirez arose under the Fair Credit Reporting Act, which, among other things, requires that consumer reporting agencies “follow reasonable procedures” when preparing consumer credit reports “to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” A class of 8,185 consumers alleged that TransUnion violated that provision when OFAC Name Screen Alert wrongly matched them with persons on the OFAC list.

But TransUnion only disseminated about a quarter of those consumers’ credit reports to third parties, prompting the question: did the rest of the class members suffer a concrete injury, even though their credit reports, which falsely labeled them terrorists, were never disseminated or seen by a third party?

Ramirez: The Decision

The Court had little trouble holding that the class members whose credit reports were disseminated suffered a concrete injury. After all, such an injury is closely related to defamation, which has long provided the basis for a lawsuit. The remaining class members were not as lucky. Quoting Judge Tatel from the D.C. Circuit, the Court quipped, “if inaccurate information falls into a consumer’s credit file, does it make a sound?”

Perhaps the most crucial aspect of the Court’s opinion, however, was its discussion of the relationship between concrete injuries and future risks of harm. Until now, it was generally accepted that a plaintiff could satisfy the concreteness inquiry by alleging they suffered a material risk of harm as a result of the defendant’s statutory violation.[1] Relying on this principle, the plaintiffs argued that all the class members suffered a concrete injury because of the risk that TransUnion would disseminate the credit reports in the future.

But Ramirez closed that door for plaintiffs who seek damages rather than injunctive relief. No longer is the threat of future injury enough to seek damages. Under Ramirez, a plaintiff must allege that a future risk of harm materialized into a concrete harm to sue for damages. And while the Court did not address the requirements for plaintiffs who seek injunctive relief, the law in the Eleventh Circuit is settled: a plaintiff must demonstrate that “a future injury is imminent—that there is a sufficient likelihood he or she will be affected by the allegedly unlawful conduct in the future.”[2]

Ramirez’s Implications

Ramirez presents a formidable obstacle for plaintiffs trying to access the federal courts. Because standing is jurisdictional, it may be invoked to dispose of a plaintiff’s suit at any time during its life cycle. Indeed, Ramirez overturned a jury verdict for lack of standing. As a result, counsel should always keep the injury-in-fact requirement in mind when litigating in federal court. Some areas where the issue arises more frequently include antidiscrimination statutes, consumer protection statutes, and data breach lawsuits.

Because Article III does not affect state court’s jurisdiction, however, counsel should beware that a federal court’s dismissal for lack of standing might not preclude a plaintiff from refiling in state court.

Justice Thomas acknowledged this reality in his dissent and remarked that the majority opinion might “actually be a pyrrhic victory for TransUnion.” That’s because, in his view, the Court did not prohibit Congress from creating statutory rights; “it simply held that federal courts lack jurisdiction” when a defendant’s violation of those rights does not cause the plaintiff a concrete harm. So a plaintiff can simply refile in state court, which is a firm conclusion if the standing doctrine really stems from the “Cases” and “Controversies” language in Article III.[3] That premise was, to be sure, gospel—until now.[4]

Given the implications of Ramirez, if a plaintiff chooses to refile in state court, we anticipate defense counsel may argue that the concrete-harm requirement applies in state and federal courts alike. And while the majority opinion used language that might bolster such an argument, its success remains to be seen.

This article was co-written by Harris Blum who is currently working as a Summer Associate with RumbergerKirk.

[1] “[W]e consider two things when we evaluate whether concrete harm flows from an alleged statutory violation—and thus whether the plaintiff has standing. First, we ask if the violation itself caused harm, whether tangible or intangible, to the plaintiff. If so, that’s enough. If not, we ask whether the violation posed a material risk of harm to the plaintiff. If the answer to both questions is no, the plaintiff has failed to meet his burden of establishing standing.” Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 929 (11th Cir. 2020) (en banc).

[2] Kennedy v. Floridian Hotel, 2021 WL 2149361, at *4 (11th Cir. 2021) (citation pending).

[3] See ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (“[S]tate courts 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 . . . .”).

[4] See TransUnion LLC v. Ramirez, 2021 WL 2599472, at *9 (2021) (“A regime where Congress could freely authorize unharmed plaintiffs to sue defendants who violate federal law not only would violate Article III but also would infringe on the Executive Branch’s Article II authority.”).