On June 25, 2021, the U.S. Supreme Court issued its much-anticipated 5-4 ruling in TransUnion LLC v. Ramirez. With Justice Kavanaugh writing for the majority, the Court reversed and remanded to the Ninth Circuit its decision upholding certification of a class of 8,185 consumers who were mistakenly labeled as potential terrorists and drug traffickers by the credit reporting agency TransUnion in violation of the Fair Credit Reporting Act (FCRA).[excerpted from the firm's 6/28/2021 client alert]
While the District Court had certified the class, and the Ninth Circuit upheld an award of more than $60 million in statutory and punitive damages, TransUnion challenged the award on the basis that the class lacked constitutional standing under Article III to recover, but their appeal did not directly address class certification process under Rule 23 of the Federal Rules of Civil Procedure.
On that issue, the Court remanded for further proceedings: “On remand, the Ninth Circuit may consider in the first instance whether class certification is appropriate in light of our conclusion about standing.” This further consideration was necessary because, as Justice Kavanaugh explained, “We do not here address the distinct question whether every class member must demonstrate standing before a court certifies a class.
All federal courts are now in the position of the Ninth Circuit on remand and must determine whether class certification under Rule 23 is appropriate if, under the rubric for standing set forth in TransUnion, a proposed class includes putative members who do not satisfy the requirements of Article III.
Please see Melanie’s ABA article for a circuit-by-circuit breakdown, case citations, and further analysis on whether the standing of putative class members is a prerequisite to Rule 23 certification and whether a proposed class should include putative members who do not satisfy the requirements of Article III.