Federal Court Standing in a Post-TransUnion World
5.30.2023
Article III of the U.S. Constitution limits federal courts’ jurisdiction to “Cases” and “Controversies.”[1] This limitation ensures that the federal judicial power extends only to resolving actual disputes, and not hypothetical disagreements, between parties. Accordingly, to satisfy Article III, the U.S. Supreme Court has long held that the plaintiff, as the party invoking federal jurisdiction, must have a “personal stake” in the litigation – in other words, standing.[2] To have Article III standing, the plaintiff must show – for each claim asserted and for each form of relief sought – (1) that he or she suffered an injury in fact, (2) a causal connection between that injury and the defendant’s conduct at issue, and (3) that a favorable judicial decision will likely redress that injury.[3] In TransUnion LLC v. Ramirez,[4] the Supreme Court reduced the first of these three elements to a simple formula: “No concrete harm, no standing.”[5] This article summarizes the Supreme Court’s decision in TransUnion and examines how federal courts have applied TransUnion since it was decided in June 2021, with an eye toward the Second Circuit.
The Supreme Court’s Decision in TransUnion LLC v. Ramirez
Background: The Road to the Supreme Court
In TransUnion, Sergio Ramirez sued TransUnion, a credit reporting agency, asserting two categories of putative class claims under the Fair Credit Reporting Act (FCRA). First, he alleged that TransUnion did not use “reasonable procedures” to ensure the accuracy of his and putative class members’ credit reports, which contained an “alert” that the individual was a “potential match” to a name on the list of terrorists, drug traffickers and other criminals maintained by the U.S. Treasury Department’s Office of Foreign Asset Control.[6] Second, he alleged that TransUnion’s mailings to him and other putative class members about the potential Office of Foreign Asset Control match did not comply with certain formatting requirements imposed by the FCRA.[7]
After the district court granted Ramirez’s motion for class certification, the parties stipulated that the class contained 8,185 members and that only 1,853 members of the class, including Ramirez, had their credit reports distributed to third parties by TransUnion.[8] Although the remaining 6,332 class members’ internal credit files at TransUnion contained the allegedly misleading OFAC alert, their credit reports were never sent to any third party during the relevant period.[9] The case proceeded to trial, and a jury awarded each of the 8,185 class members statutory and punitive damages, for a total award of more than $60 million.[10]
On appeal, the Ninth Circuit largely affirmed the district court’s judgment, holding that each of the 8,185 class members had Article III standing to recover damages for both categories of FCRA claims.[11] The Supreme Court granted certiorari.[12]
The Supreme Court’s Ruling in TransUnion
Reversing the Ninth Circuit, the Supreme Court expanded upon its prior Article III standing jurisprudence, including Spokeo, Inc. v. Robins,[13] and held that only those plaintiffs and class members who are concretely harmed by a defendant’s statutory violation may have standing to recover damages in federal court.[14] Put simply, “[n]o concrete harm, no standing.”[15]
To determine whether this concrete harm requirement is met, the Supreme Court instructed courts to assess whether the plaintiff’s alleged injury has “a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.”[16] This inquiry asks whether the plaintiff has “identified a close historical or common-law analogue” for his or her alleged injury.[17] The court further explained that “tangible harms,” like physical and monetary harms, “easily qualify as concrete” and that certain “intangible harms,” like “reputational harms, disclosure of private information, and intrusion upon seclusion,” may qualify, too, provided they satisfy the “close relationship” to a traditionally recognized harm inquiry.[18]
Applying these principles to the case before it, the Supreme Court held, with respect to the first category of FCRA claims, that the 1,853 class members whose credit reports were actually distributed to third parties did suffer a concrete injury, as the harm resulting from being labeled as “potential terrorists, drug traffickers, or serious criminals” in reports sent to others has a “close relationship” to the harm associated with the common law tort of defamation.[19] But the court held that the remaining 6,332 class members whose credit reports were not distributed to third parties lacked Article III standing, as there is “no historical or common-law analog where the mere existence of inaccurate information, absent dissemination, amounts to concrete injury.”[20]
In addition, the Supreme Court rejected the argument that the remaining 6,332 class members had standing based on the alleged risk of credit report dissemination in the future.[21] Clarifying a common misinterpretation of its ruling in Spokeo, the court stated that in lawsuits for damages, “the mere risk of future harm, standing alone, cannot qualify as a concrete harm – at least unless the exposure to the risk of future harm itself causes a separate concrete harm.”[22] Because the 6,332 class members did not “demonstrate that the risk of future harm materialized” or that they “were independently harmed by their exposure to the risk itself,” they lacked Article III standing to recover damages for the first category of FCRA claims.[23]
Turning to the second category of claims, concerning the format of TransUnion’s mailings to class members, the Supreme Court held that all 8,135 class members, except lead named plaintiff Ramirez, lacked Article III standing.[24] In so holding, the court found that the absent class members failed to show that “they suffered any harm at all from the formatting violations,” much less a harm that satisfies the “close relationship” to a traditionally recognized harm inquiry.[25] The court noted that the record contained no evidence that any absent class member even opened the mailings or “were confused, distressed, or relied on the information in any way.”[26]
In addition, the Supreme Court held that a mere deprivation of information to which a plaintiff claims he or she is entitled, without more, is not a concrete harm for Article III standing purposes.[27] As the court explained, an alleged “informational injury that causes no adverse effects cannot satisfy” Article III’s injury-in-fact requirement.[28] Because the 8,134 absent class members identified no adverse effects or other “‘downstream consequences’ from failing to receive the allegedly required information,” the Supreme Court found that they lacked Article III standing to recover damages for the second category of FCRA claims.[29]
Application of the Supreme Court’s Decision in TransUnion
Since the Supreme Court decided TransUnion on June 25, 2021, the decision has had a significant impact on federal court litigation, with well more than 1,000 federal court decisions citing TransUnion in assessing standing-related issues. Below we will explore interesting issues that have arisen post-TransUnion impacting complex litigation.
Mere Risk of Future Harm Cannot Confer Article III Standing in Suits for Money Damages
TransUnion makes clear that an unmaterialized risk of future harm, without more, is insufficient to confer Article III standing in damages actions. Thus, federal courts that had previously relied on Spokeo to uphold standing based on the mere risk of future harm have recognized that TransUnion says otherwise.
For example, in Maddox v. Bank of New York Mellon Trust Co.,[30] two plaintiffs filed a putative class action against their mortgage lender, asserting that the lender violated New York’s mortgage recording statutes by not recording a satisfaction of mortgage within 30 days of the plaintiffs’ full satisfaction of the mortgage loan. Prior to TransUnion, the Second Circuit ruled that the Maddox plaintiffs adequately alleged an Article III injury-in-fact because the lender’s alleged statutory violations “exposed [the plaintiffs] to a material risk of concrete harm, including the risk of not being able to borrow during the period of delay[ed]” recordation.[31] After TransUnion, however, the Second Circuit reversed itself in rehearing the matter, explaining that TransUnion “established that in suits for damages plaintiffs cannot establish Article III standing by relying entirely on a statutory violation or risk of future harm: No concrete harm; no standing.”[32]
In holding that the Maddox plaintiffs did not plead a concrete harm, the Second Circuit explained that while they “may have suffered a nebulous risk of future harm during the period of delayed recordation” – e.g., the risk that a creditor “might access the record and act upon it” to the plaintiffs’ detriment – that unmaterialized risk “cannot form the basis of Article III standing.”[33]
The Maddox plaintiffs also attempted to establish standing through an affidavit indicating that the lender’s alleged failure to timely record the mortgage satisfaction caused them “great stress, mental anguish, and anxiety.”[34] In rejecting this attempt, the Second Circuit acknowledged that these “purported harms are the sort that TransUnion contemplated might form the basis of Article III standing” in certain contexts.[35] But the Second Circuit found that the Maddox plaintiffs offered “no reason why the delayed recordation would cause” emotional distress and held that a mere “perfunctory allegation of emotional distress” is insufficient to plausibly allege Article III standing.[36]
Similarly, in Snyder v. LVNV Funding LLC,[37] the plaintiff alleged that the defendants’ debt collection letter, which identified a settlement amount for which the plaintiff’s debt would be forgiven, violated the Fair Debt Collection Practices Act.[38] The plaintiff asserted that she suffered a concrete harm in that, “had she not been confused” by the defendants’ letter, she would have “tried to borrow money from friends or family” that may “have allowed her to accept the settlement offer” and avoid paying additional interest on the debt.[39] On summary judgment, the court held that the plaintiff lacked Article III standing because, even if any confusion “caused her to not explore all [financial] avenues,” the record contained no evidence that the “amount of money she was being asked to pay” by the defendants “had grown due to interest” or otherwise.[40] In other words, the pecuniary harm that the plaintiff alleged “had not materialized.”[41] Thus, the court found that the plaintiff’s claimed harm was “the exact sort of ‘nebulous risk of future harm’ that TransUnion and its progeny reject.”[42]
As another example outside the Second Circuit, in Kim v. McDonald’s USA, LLC,[43] the plaintiffs asserted putative class claims arising out of a data breach in which third-party hackers allegedly stole plaintiffs’ delivery addresses, phone numbers and email addresses from the defendants’ servers. The plaintiffs argued that they adequately pled a concrete injury by alleging that the theft of such contact information exposed them to an increased risk of becoming the victims of identity theft in the future.[44] In granting the defendants’ motion to dismiss, the court explained that following TransUnion, the Seventh Circuit has “held that the threat of future harm alone cannot satisfy Article III standing, at least in a lawsuit for money damages.”[45] The court further found that the plaintiffs’ claimed harm was “too attenuated and speculative given the non-sensitive nature of the information stolen in the data breach” to confer Article III standing.[46]
In sum, TransUnion and its progeny make clear that an unmaterialized risk of future harm, alone, cannot confer Article III standing to recover damages – absent the plaintiff suffering a separate concrete harm caused by exposure to the increased risk itself. As for what constitutes a separate concrete harm, emotional injuries may not be sufficient, as articulated in Maddox, particularly when vaguely pled and/or not plausibly commensurate.
A Mere Alleged “Informational Injury” With No “Adverse Effects” Does Not Satisfy Article III
Following TransUnion, federal courts of appeals have consistently recognized that a mere deprivation of information to which a plaintiff claims he or she is entitled, alone, is insufficient to satisfy Article III.[47] Rather, to have standing based on an alleged “informational injury,” the plaintiff must show that he or she suffered “adverse effects” or other “downstream consequences” from the denial of the information.
For example, in Harty v. W. Point Realty, Inc.,[48] the plaintiff alleged that the website for the defendant’s hotel violated an Americans with Disabilities Act provision requiring that places of accommodation identify and describe accessible features in enough detail to permit individuals with disabilities to assess whether a given hotel or guest room meets his or her needs.[49] The plaintiff did not allege that he viewed the website with the intent of visiting the defendant’s hotel.[50] Instead, he merely alleged that the website itself did not comply with the ADA when he viewed it.[51]
In affirming the district court’s dismissal of the plaintiff’s complaint for lack of Article III standing, the Second Circuit explained that, even if the plaintiff could “allege that he was deprived of information to which he is entitled by the ADA, he must also allege ‘downstream consequences from failing to receive the required information’ in order to have an Article III injury in fact.”[52] In other words, the plaintiff “must show that he has an interest in using the information beyond bringing his law suit.”[53] Because the plaintiff had failed to do so, the Second Circuit held that he had not “alleged an informational injury sufficient for Article III standing.”[54]
Similarly, in Laufer v. Ganesha Hospitality LLC,[55] the plaintiff alleged that the operator of a hotel in Connecticut violated the ADA by depriving her of “information required to make meaningful choices for travel.”[56] The district court denied the defendant’s motion to dismiss on standing grounds.[57] After granting the defendant’s petition for an immediate appeal, the Second Circuit held that the district court “erred when it held that ‘informational harm,’ without any downstream effects, sufficed for Article III injury purposes.”[58] In so holding, the Second Circuit explained that its “holding in Harty means that [the plaintiff] lacks standing in this case,” noting that, like the Harty plaintiff, the plaintiff here “did not allege concrete plans” to visit the defendant’s hotel.[59]
As another example, in Kelly v. RealPage Inc.,[60] the plaintiffs allegedly had inaccurate information contained in their consumer reports maintained by the defendant and submitted a request to the defendant for disclosure of their complete consumer files so that they could address those inaccuracies with the sources of the inaccurate information.[61] After the defendant failed to provide the requested files, the plaintiffs filed suit, asserting putative class claims under the FCRA.[62] Following TransUnion, the Third Circuit held that the plaintiffs alleged a sufficient “informational injury” to confer Article III standing,[63] as they adequately alleged that the defendant’s failure to disclose its sources impaired the plaintiffs’ ability to correct errors in their consumer reports and resulted in further alleged “adverse effects,” including the denial of apartments for which the plaintiffs had applied.[64]
In sum, since TransUnion, federal appellate courts across the country, including the Second Circuit, have held that a mere “informational injury,” without any adverse effects or downstream consequences from the denial of access to information, cannot satisfy Article III.
Since TransUnion, Federal Courts Are Taking a Closer Look at Absent Class Members’ Article III Standing in Damages Actions
TransUnion held that, in the class action context, the named plaintiff and every other class member must have Article III standing to recover individual damages.[65] The Supreme Court, however, declined to address the “distinct question” of “whether every class member must demonstrate standing before a court certifies a class.”[66] In reserving this question, the Supreme Court cited Cordoba v. DIRECTV, LLC,[67] in which the Eleventh Circuit reversed the district court’s grant of class certification because individualized inquiries regarding absent class members’ Article III standing created a “powerful problem under Rule 23(b)(3)’s predominance factor.”[68] Unsurprisingly, certain federal courts have interpreted TransUnion’s citation to Cordoba as a signal for them to take a closer look at the question of absent class members’ Article III standing, including in analyzing proposed class definitions and Federal Rule of Civil Procedure 23’s predominance requirement. As the Second Circuit explained in Maddox, to the extent that absent class “members (or their lawyers) prefer to form a class and bring their claims in federal court, they must come prepared to prove that they suffered concrete harm” due to the defendant’s challenged conduct.[69] In this regard, if a court will require myriad mini-trials to identify and separate out those absent class members who have suffered no concrete harm, then individual inquiries on standing may predominate over common questions, warranting denial of class certification for lack of predominance.
For example, in Barnes v. Allsup Employment Servs., LLC,[70] the plaintiff alleged that a company transmitted calls using an artificial or prerecorded voice to the telephone numbers of plaintiff and putative class members in violation of the Telephone Consumer Protection Act.[71] The plaintiff sought to represent a class of persons who received a call from the company and for whom the company’s call records reflected a disposition of: “MESSAGE_PLAYED” and “ANSWERING_MACHINE.”[72] In denying the plaintiff’s motion for class certification, the court held that determining potential absent class members’ Article III standing will require individualized inquiries that predominate over the common issues in the case.[73] In so holding, the court explained that to determine whether an absent class member had standing would require analyzing several individual questions, including whether each putative class member (1) “received multiple phone calls or one phone call” from the company, as one unanswered phone call “would be insufficient to establish an injury-in-fact” and (2) suffered “losses of personal time” as a result of the company’s phone calls.[74]
In addition to impacting Rule 23(b)(3)’s predominance factor, TransUnion’s rule that every class member must have Article III standing has and will impact class action settlements. For example, in Drazen v. Pinto,[75] the Eleventh Circuit vacated a district court’s decision to approve a class settlement because the class included members who lacked Article III standing. The Eleventh Circuit explained that Cordoba’s inquiry into standing for class certification purposes under Rule 23 “merges with the TransUnion analysis of damages recovery to lead us to the following conclusion: when a class seeks certification for the sole purpose of a damages settlement under Rule 23(e), the class definition must be limited to those individuals who have Article III standing.”[76]
In short, although the Supreme Court in TransUnion declined to answer whether every putative class member must have Article III standing at the pre-certification stage, courts have interpreted TransUnion as an invitation to consider standing-related issues in determining whether the named plaintiff has met its burden, in moving for certification, to satisfy each of Rule 23’s requirements.
Conclusion
Parties facing putative class actions and other complex litigation in federal court should continue to closely watch courts’ application of TransUnion. TransUnion’s progeny in the Second Circuit, such as the decisions reached in Maddox and Harty, is beginning to limit plaintiffs’ ability to pursue putative class claims in federal court where the named plaintiff or potential absent class members cannot plausibly allege a real world, existing injury.
Sylvia E. Simson is a shareholder and Michael E. Mirdamadi is an associate at Greenberg Traurig. Both are litigators with diverse practices focused on a broad range of complex commercial litigation with experience in federal and state courts across the country.
[1] U.S. Const., Art. III, § 2.
[2] See, e.g., Baker v. Carr, 369 U.S. 186, 204 (1962).
[3] See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
[4] 141 S. Ct. 2190 (2021).
[5] Id. at 2200, 2214.
[6] Id. at 2200–02.
[7] Id.
[8] Id. at 2202.
[9] Id. at 2200–02.
[10] Ramirez v. TransUnion, LLC, 2017 WL 5153280 (N.D. Cal. Nov. 7, 2017) (upholding verdict).
[11] Ramirez v. TransUnion LLC, 951 F.3d 1008, 1024–30 (9th Cir. 2020) (holding that “every class member has standing on each of the claims in this case” and affirming “the district court’s denial of TransUnion’s motion to decertify the class for lack of standing and TransUnion’s post-trial motions based on the same grounds”).
[12] TransUnion LLC v. Ramirez, 141 S. Ct. 972 (2020).
[13] 578 U.S. 330 (2016).
[14] See TransUnion, 141 S. Ct. at 2205 (“[U]nder Article III, an injury in law is not an injury in fact. Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court.”) (emphasis in original); see also id. at 2208 (“Every class member must have Article III standing in order to recover individual damages.”).
[15] Id. at 2200, 2214.
[16] Id. at 2204 (quoting Spokeo, 578 U.S. at 341).
[17] Id.
[18] Id.
[19] Id. at 2208–09.
[20] Id. at 2209–10; see also id. at 2210 (“In cases such as these where allegedly inaccurate or misleading information sits in a company database, the plaintiffs’ harm is roughly the same, legally speaking, as if someone wrote a defamatory letter and then stored it in her desk drawer. A letter that is not sent does not harm anyone, no matter how insulting the letter is. So too here.”).
[21] Id. at 2210–12.
[22] Id. at 2210–11 (emphasis in original).
[23] Id. at 2211.
[24] Id. at 2213–14.
[25] Id. at 2213 (emphasis in original).
[26] Id.
[27] Id. at 2214.
[28] Id.
[29] Id.
[30] 19 F.4th 58 (2d Cir. 2022).
[31] Id. at 62.
[32] Id. at 64.
[33] Id. at 65.
[34] Id. at 65–66.
[35] Id. at 65 (citing TransUnion, 141 S. Ct. at 2211 n.7 (“[A] plaintiff’s knowledge that he or she is exposed to a risk of future physical, monetary, or reputational harm could cause its own current emotional or psychological harm.”)).
[36] Id. at 66.
[37] 2023 WL 1109645 (S.D.N.Y. Jan. 30, 2023).
[38] Id. at *2.
[39] Id. at *5.
[40] Id.
[41] Id.
[42] Id. at *5 (quoting Maddox, 19 F.4th at 65).
[43] 2022 WL 4482826 (N.D. Ill. Sept. 27, 2022).
[44] Id. at *4.
[45] Id. at *5.
[46] Id.
[47] See, e.g., Munoz v. PHH Corp., 2023 WL 2202228, at *1 (9th Cir. Feb. 24, 2023) (“TransUnion’s intervening change in the law foreclosed Plaintiffs’ ability to proceed to trial on an informational injury theory of standing[.]”); Campaign Legal Ctr. v. Scott, 49 F.4th 931, 936 (5th Cir. 2022) (“TransUnion generally rejected the [plaintiff’s] advocacy for an unlimited ‘informational injury’ approach to standing[.]”).
[48] 2022 WL 2444747 (2d Cir. July 5, 2022).
[49] Id. at 439–40.
[50] Id.
[51] Id.
[52] Id. at 444 (quoting TransUnion, 141 S. Ct. at 2214).
[53] Id. (internal quotation marks and alterations omitted).
[54] Id.
[55] 2022 WL 2444747 (2d Cir. July 5, 2022).
[56] Id. at *1.
[57] Id.
[58] Id. at *2.
[59] Id.
[60] 47 F.4th 202 (3d Cir. 2022).
[61] Id. at 205–08.
[62] Id. at 209.
[63] Id. at 211–15.
[64] Id.
[65] 141 S. Ct. at 2208 (“Article III does not give federal courts the power to order relief to any uninjured plaintiff, class action or not.”).
[66] Id. n.4 (emphasis in original) (citing Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1277 (11th Cir. 2019)).
[67] 942 F.3d 1259 (11th Cir. 2019).
[68] Cordoba, 942 F.3d at 1273.
[69] 19 F.4th at 66.
[70] 2022 WL 2390715 (S.D. Fla. July 1, 2022).
[71] Id. at *1–2.
[72] Id.
[73] Id. at *5–7.
[74] Id.
[75] 41 F.4th 1354 (11th Cir. 2022).
[76] Id. at 1361.
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