Back in August, CPW reported on a developing issue in the consumer privacy space – one of the “big three” consumer reporting agencies (“CRAs”) was sued for using “matching technology” against the “Specially Designated Nationals” list maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and similar “terrorist watch lists,” on consumers’ credit reports.  This practice occasionally resulted in consumers incorrectly being presented as “potential” matches against these lists on their credit reports.  The Ninth Circuit found in Ramirez v. TransUnion LLC, 951 F.3d 1008 (9th Cir. 2020) that TransUnion’s failure to use additional identifiers, such as date of birth, to verify the matches could be found to be objectively unreasonable.

In a first of its kind ruling, the Ninth Circuit also found in Ramirez that every class member needed to have Article III standing at the final stages of a damages suit.  It determined that the class of 8,185 consumers who had received inaccurate reports using the matching technology could obtain money damages, although Judge McKeown penned a dissent concluding that only the 1,853 consumers whose credit reports were requested by a potential credit grantor had standing to assert a claim.  The Court also reduced the punitive damages award per class member, finding the sum to be excessive in violation of due process.  TransUnion appealed both issues and petitioned the Supreme Court for a writ of certiorari in September.

This morning, the Supreme Court granted TransUnions’ petition.  While it declined to take up the punitive damages issue, it granted cert for the question: “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 decision is sure to impact future class action litigation and issues of standing, especially for claims under the FCRA.  Will we have another Spokeo on our hands?  Will the majority’s position or Judge McKeown’s dissent win the day?  We’ll be sure to let you know.