Have ADA Serial Plaintiffs and Testers Hit a Dead End?

Today’s blog entry discusses the real issue of whether ADA serial plaintiffs, architectural or Internet, and ADA testers will continue to have standing with respect to claims filed in federal court. The case of the day actually has nothing to do with disability discrimination, but in a sense it has everything to do with disability discrimination. The case is TransUnion LLC v. Ramirez, here, decided by the United States Supreme Court on June 25, 2021. As usual, the blog entry is divided into categories and they are: facts; Justice Kavanaugh’s general discussion of standing principles; Justice Kavanaugh’s discussion of how those principles apply to standing in this case; Justice Thomas’s dissent; Justice Kagan’s dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

Before jumping into this particular case, I should point out that the Supreme Court came down with another decision this week of interest. It also has nothing to do with disability discrimination except that it affects the regulation of any K-12 student’s off-campus behavior. That case is Mahanoy Area School District v. B.L., here, where the Supreme Court held that if you are going to go after a student for off-campus speech you better have your ducks in a row every which way to Sunday so to speak as the chances of the school being successful of going after that student successfully are not great. I haven’t decided whether to blog on that case yet, but I might do so in the future.

 

I

Facts

 

Beginning in 2002, TransUnion introduced an Office of Foreign Assets Control name screen alert product. Individuals on the Office of Foreign Assets Control list are terrorists, drug traffickers or other serious criminals. It is generally unlawful to transact business with anyone on that list. TransUnion created the Office of Foreign Assets Control name screen alert to help businesses avoid transacting with individuals on the Office of Foreign Assets Control list. While the intention was good, the implementation was not so great. What TransUnion did was if the consumer’s first and last name matched the first and last name of an individual on the Office of Foreign Assets Control’s list, then TransUnion would place an alert on the credit report indicating that the consumer’s name was a potential match to a name on the Office of Foreign Assets Control list. TransUnion did not compare any data other than first and last names. Not surprisingly, TransUnion’s name screen product generated many false positives. Thousands of law-abiding Americans happen to share first and last names with one of the terrorists, drug traffickers, or serious criminals on the Office of Foreign Assets Control’s list of specifically designated nationals. One of those individuals was a gentleman named Sergio Ramirez who tried to purchase a car but could not do so because his name was on the list. He actually had to have his wife purchase the car in her own name. The next day the plaintiff called TransUnion and requested a copy of his credit file. They sent him a mailing the same day that included his credit file and the statutorily required summary of rights prepared by the Consumer Finance Protection Bureau. The mailing did not mention the Office of Foreign Assets Control alert in Ramirez’s file. The following day, TransUnion sent Ramirez a second mailing alerting him that his name was considered a potential match to names on the Office of Foreign Assets Control list. The second mailing did not include any additional copy of the summary of rights. Concerned about the mailings, Ramirez contacted a lawyer and ultimately canceled a planned trip to Mexico. TransUnion eventually removed the Office of Foreign Assets Control alert from his file. He then brought suit alleging three violations of the Fair Credit Reporting Act. That suit was expanded to include a class action of all people in the United States to whom TransUnion sent a mailing during January 1, 2011 to July 26, 2011 that was similar in the form to the second mailing that the plaintiff received. That entire class contained 8185 members including the plaintiff. Of that class, only 1853 members had their credit report disseminated by TransUnion to potential creditors during the period from January 1, 2011, to July 26, 2011. After six days of trial, the jury awarded each class member $984.22 in statutory damages and $6353.08 in punitive damages for a total award of more than $60 million.

 

II

Justice Kavanaugh on General Principles of Standing (Majority Opinion Joined by Chief Justice Roberts, Justice Alito, Justice Barrett, and Justice Gorsuch).

 

 

1. For there to be a case or Controversy under article III, a plaintiff must have a personal stake in the case.
2. Answering whether a person has a personal stake in the case involves a plaintiff showing: 1) that he or she suffered an injury in fact that is concrete, particularized, and actual or imminent; 2) that the injury was likely caused by the defendant; and 3) that the injury would likely be redressed by judicial relief.
3. Requiring a plaintiff to demonstrate a concrete and particularized injury caused by the defendant that is redressable by the courts and ensures that federal courts decide only the rights of individuals and that federal courts exercise their proper function in a limited and separated government.
4. Federal courts do not adjudicate hypothetical abstract disputes nor do they possess a roving commission to opine on every legal question. They also do not exercise general legal oversight of the legislative and executive branches or private entities. Finally, they do not issue advisory opinions.
5. A federal court may resolve only a real controversy with real impact on real persons.
6. Courts need to assess whether the alleged injury to the plaintiff has a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts. That is, the question is whether plaintiffs have identified a close historical or common-law analog the injuries alleged.
7. Certain injuries readily qualify as concrete injuries under article III of the U.S. Constitution. The most obvious such injuries are traditional tangible harms, such as physical harms and monetary harms. If a defendant has caused physical or monetary injury to the plaintiff, the plaintiff has suffered a concrete injury.
8. Intangible harms can also be concrete. Chief among those harms are those injuries with a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts, such as reputational harms, disclosure of private information, and intrusion upon seclusion.
9. Traditional harms may also include harms specified by the Constitution itself.
10. Courts must afford due respect to Congress’s decision to impose a statutory prohibition obligation on the defendant and grant a plaintiff a cause of action to sue over the defendant’s violation of that statutory prohibition obligation.
11. Congress is not permitted to enact an injury into existence using lawmaking power to transform something that is not remotely harmful into something that is.
12. The Supreme Court has previously rejected the proposition that a plaintiff automatically satisfies the injury in fact requirement whenever a statute grants a person a statutory right that purports to authorize that person to sue to vindicate that right. That is, article III standing requires a concrete injury even in the context of a statutory violation. In other words, courts cannot treat an injury as concrete based only on Congress’s say-so.
13. So, an important distinction exists between a statutory cause of action and whether a concrete harm exists because of the defendant’s violation of federal law. In other words an injury in law is not an injury in fact. You could have an injury in law without the person being concretely harmed.
14. An uninjured plaintiff who is not seeking to remedy any harm to herself but instead is merely seeking to ensure a defendant’s compliance with regulatory law does not have standing. The example the Supreme Court used is a person in Hawaii suing for environmental pollution in Maine.
15. Absent a concrete harm requirement, Congress could authorize virtually any citizen to bring statutory damages suit against virtually any defendant that violated virtually any federal law. Such an expansive understanding of article III flouts constitutional text, history, and precedent. In other words, a public interest that mandates private entities to comply with the law cannot be converted into an individual right by a statute that permits all citizens who suffer no distinctive concrete harm to sue.
16. A regime where Congress could freely authorize unharmed plaintiff’s to sue defendant for violating federal law violates article III and also infringes upon the executive branch’s article II authority.
17. In a footnote, the Court said that concreteness and particularization are separate requirements and you have to have both.
18. The concrete harm requirement is essential to the Constitution’s separation of powers.

 

III

Justice Kavanaugh’s Discussion of How the General Principles of Standing Apply to This Case

 

1. Plaintiff bears the burden of demonstrating they have standing.
2. Standing is something that must be maintained at all stages of the litigation.
3. Plaintiffs must demonstrate standing for each claim they allege and for each form of relief they seek.
4. Under long-standing American law, a person is injured when a defamatory statement that would subject him to hatred, contempt, ridicule is published to a third party. Here, TransUnion provided third parties with credit reports containing alerts that labeled the class members as potential terrorists, drug traffickers, or serious criminals. Therefore, the 1853 class members suffered a harm with a close relationship to the harm associated with the tort of defamation and have standing because they suffered a concrete harm qualifying as an injury in fact.
5. The harm from being labeled a potential terrorists bears a close relationship to the harm from being labeled a terrorist. That is, the harm from the misleading statement of this kind bears a sufficiently close relationship to the harm from a false and defamatory statement.
6. With respect to the remaining 6332 class members, the parties stipulated that none of their credit information was provided to any potential creditors during the class period. In other words, while inaccurate written information was in the credit file, it didn’t make any sound because it wasn’t disseminated.
7. Publication is essential to liability in a suit for defamation.
8. There is no historical or common-law analog where the mere existence of inaccurate information, absent dissemination, amounts to a concrete injury. In other words, the mere existence of inaccurate information in a database is insufficient to confer article III standing.
9. The mere presence of an inaccuracy in an internal credit file if not disclosed to a third party causes no concrete harm. That is, a letter not sent to anyone does not harm anyone no matter how insulting the letter is.
10. Injunctive relief is a different matter entirely. When it comes to injunctive relief, a person exposed to a risk of future harm may pursue forward-looking injunctive relief to prevent the harm from occurring at least so long at the risk of harm is sufficiently imminent and substantial.
11. When it comes to damages, the mere risk of future harm by itself does not qualify as a concrete harm unless the exposure of the risk of future harm itself causes a separate concrete harm.
12. Libel and slander require evidence of publication.
13. The risk of future harm for the 6332 class members that did not have the report disseminated is too speculative to support article III standing.
14. Plaintiff did not demonstrate a sufficient likelihood that their individual credit information would be requested by third-party businesses and provided by TransUnion during the relevant time period. They also did not demonstrate that there was a sufficient likelihood that TransUnion would otherwise intentionally or accidentally release the information to third parties.
15. Plaintiff did not present any evidence that the 6332 class members even knew that there was an Office of Foreign Assets Control alert in their internal TransUnion credit files.
16. Plaintiffs have the burden to prove the trial that the reports were actually sent to third-party businesses.
17. Plaintiff put forth no evidence that they tried to correct their credit files and thereby prevent dissemination of the misleading reports. They also made no effort to explain how they were prevented from contacting TransUnion to correct any errors before misleading credit reports were disseminated that third-party businesses.

 

IV

 

Justice Thomas’s Dissent (Joined by Justice Kagan, Justice Breyer, and Justice Sotomayor)

 

1. Even though TransUnion had a verdict against it for its sloppy practices with respect to the Office of Foreign Assets Control list product, TransUnion made very little change in its practices. All it did was require exact matches for names and add language saying the consumer was a potential match rather than saying the person was a match.
2. At the time of the founding of the United States, whether a court possessed judicial power over an action with no showing of actual damages depended upon whether the plaintiff sought to enforce a right held privately by an individual or a duty owed broadly to the community.
3. Where an individual of that time sought to sue someone for a violation of his private rights, the plaintiff needed only to allege the violation.
4. When individuals sue based on violation of the duty owed broadly to the whole community, the person had to allege both a legal injury as well as damages. That distinction mattered not only for traditional common law rights, but also for newly created statutory ones.
5. The principle that the violation of an individual right give rise to an actionable harm was widespread at the founding of the United States.
6. So long as a statute fixes a minimum of recovery, there would seem to be no doubt of the right of one who establishes a technical ground of action to recover this minimum sum without any specific showing of loss.
7. Courts for centuries have held that injury and loss to a private right was enough to create a case or controversy.
8. In this case, all the class members established the violation of his or her private rights. The jury found that TransUnion violated three separate duty created by statute. All three of those duties were owed to individuals and not to the community at large. That the duties were owed to individuals and not to the community at large is obvious from the language in the statute’s remedies provision, which uses language of “any person,” “that consumer,” and “liable to the consumer.”
9. Injury in fact did not come into existence until 1970, 180 years after article III of the US Constitution was ratified.
10. When injury in fact came into existence, it served as an additional way to get into federal court and not as a way to limit access to federal courts.
11. The majority opinion takes the view that an injury in law is not an injury in fact. So no matter if the right is personal or if the legislature deemed the right worthy of legal protection, legislatures are constitutionally unable to offer to protection of the federal courts for anything other than money, bodily integrity, and anything else that the Supreme Court thinks looks close enough to rights existing at common law. The 1970s injury in fact theory has now displaced the traditional gateway into federal courts.
12. Never before has the Supreme Court declared that legal injury is inherently insufficient to support standing. Also, the Supreme Court has never before declared that legislatures are constitutionally precluded from creating legal rights enforceable in federal courts if those rights deviate too far from there common-law roots.
13. According to the majority opinion, courts alone now have the power to sift and weigh harms to decide whether they merit the federal judiciary’s attention.
14. In the name of protecting the separation of powers, the majority opinion has relieved the legislature of its power to create and define rights.
15. TransUnion’s misconduct is exactly the sort of thing that has long merited legal redress.
16. The Supreme Court has previously recognized that the unlawful withholding of requested information causes a sufficiently distinct injury to provide standing to sue.
17. The plaintiffs had a financial injury here because TransUnion charges clients extra to receive credit reports with the Office of Foreign Assets Control designation.
18. The case is a strong example of the harm the Supreme Court identified as central to the Fairness Credit Reporting Act, i.e. the dissemination of false information and aligns closely with the harm that had traditionally been regarded as providing a basis for a lawsuit.
19. 25% of the class had the alerts sent to potential creditors. Such a percentage is a sufficient degree of risk to meet the concreteness requirement. If 25% is not sufficient, then what is?
20. The opinion that the majority opinion relies upon specifically said that their opinion did not mean that the risk of real harm cannot satisfy the requirement of concreteness. The Supreme Court also said in that decision that it was remanding the claim to the Ninth Circuit to consider whether the violations alleged entail a degree of risk sufficient to meet the concreteness requirement. Therefore, the theory that risk of harm matters only for injunctive relief is squarely foreclosed by that decision.
21. In history, publication to even a single other party could be enough to give rise to suit.
22. One only need to tap into common sense to know that receiving a letter identifying you as a potential drug trafficker terrorist is harmful. That is even more true when the information comes in the context of a credit report whose entire purpose is to demonstrate that a person can be trusted.
23. If the sort of confusing and frustrating communication in this case is insufficient to establish a concrete injury, one has to wonder what could rise to that level. For example, what about being flagged as a potential child molester or a racist, a slur of some kind being put into the file, a credit score reduced because of race, etc. Previously, the Supreme Court has said that the inability to observe an animal species even for purely aesthetic purposes is a concrete harm. How do these examples not rise to that level? Also, how does a court go about picking and choosing the ones that do and do not rise to the level of concrete harms. Justice Thomas sees no way to engage in such a value laden inquiry without it devolving into pure policy judgments. Weighing the harm caused by specific facts and choosing remedies is a much better fit for legislatures and juries than for the Supreme Court.
24. In a footnote, Justice Thomas said that the Supreme Court does not prohibit Congress from creating statutory rights for consumers by the majority opinion. Instead, it simply holds that federal courts lack jurisdiction to hear some of those cases. That combination of things might actually be a Pyrrhic victory for defendants because it may leave state courts that are not bound by the limitations of a case or controversy or other federal rules of standing even when they address issues of federal law as the sole forum for such cases when defendants find they are unable to seek removal to federal court as a result of the majority opinion. By declaring that federal courts lack jurisdiction, the Supreme Court has ensured the state courts will exercise exclusive jurisdiction over these sorts of class actions.

 

V

Justice Kagan’s Dissent

 

1. The majority opinion transforms standing law from the doctrine of judicial modesty into a tool of judicial aggrandizement when it holds that a specific class of plaintiffs allowed by Congress to bring a lawsuit cannot do so under article III.
2. To say that the resulting injuries in this case do not exist in the real world to inhabit a world that Justice Kagan does not know. Further, to make that claim in the face of Congress’s contrary judgment is to exceed the judiciary’s proper and properly limited role.
3. Why is it so speculative that a company in the business of selling credit report to third parties will in fact sell credit reports to a third party?
4. Justice Kagan continue to support the view that a concrete injury is required even in the context of a statutory violation and says such a view will lead to the same result as Justice Thomas’s approach in all but highly unusual cases.
5. Congress is better suited than courts to determine when something is because of a harm or risk of harm in the real world. Therefore, courts should give deference to those congressional judgments.
6. Overriding an authorization to sue is only appropriate when Congress could not reasonably have thought that a suit will contribute to compensating or preventing the harm at issue.

 

VI

Thoughts/Takeaways

 

1. It is now more important than ever after this decision to take Iqbal/Twombly seriously if you are a plaintiff. Now, a plaintiff is very much going to want to throw the kitchen sink into their complaint and quite specifically so in order to show the court and the defendant that there is a very specific harm involved in the lawsuit that is very clearly a harm to the plaintiff.
2. In footnote 4 of the majority opinion, Justice Kavanaugh says that this opinion does not address the distinct question of whether every class member must demonstrate standing before a court certifies a class. A plain reading of the majority opinion suggests that such a requirement may well be coming in the future.
3. Statutory rights being violated are not enough for a claim to be in federal court. You also need a concrete injury AND a particularized injury.
4. As justice Thomas points out, States can approach standing very differently from the federal courts. For example, as we discussed here, deterrence works in California. So, you may now see lots of disability discrimination cases alleging both violations of the California disability antidiscrimination law and the ADA that have to remain in California courts because a federal court would find that no standing exist as a result of the majority opinion in this case. As defendants prefer federal courts generally, this decision may actually benefit plaintiffs in states with disability antidiscrimination laws. For States without disability antidiscrimination laws, getting by standing when it comes to federal claims in federal courts is going to be much more difficult than it used to be after this decision.
5. Even if Congress created a cause of action and a plaintiff alleges the prima facie case for that cause of action, federal courts have the right to throw the case out on standing grounds if they find there is no concrete or particularized harm involved. As the court said, you need both an injury in law and an injury in fact to proceed in federal courts.
6. The burden of showing standing is on the plaintiff and must be maintained throughout the litigation.
7. The majority opinion makes a distinction between damages and injunctive relief; a distinction that Justice Thomas does not buy. The distinction is important when it comes to the ADA, because title III of the ADA only allows for injunctive relief and attorney fees. So, does that mean serial plaintiffs, whether they be architectural or Internet accessibility, are not affected by this decision? I think they still are because under the majority opinion the harm must be still sufficiently imminent and substantial to proceed. The way court opinions get interpreted, I think it is quite likely that the concrete and particularization requirements of the majority opinion will be folded into whether an injunctive relief claim alleges claims that are sufficiently imminent and substantial to give a plaintiff standing. Look for what is required for sufficiently imminent and substantial in injunctive relief cases to eventually make its way to the United States Supreme Court.
8. Justice Thomas’s jurisprudence can be a difficult thing to figure out. A very provocative book that takes an unusual approach to attempting to figuring out his jurisprudence is a book called the Enigma of Clarence Thomas. I highly recommend it if you are interested in trying to begin to get a handle on how justice Thomas approaches cases. I have read that book. I am not entirely sure it accomplishes what it sets out to do, but it is very interesting reading.
9. It is a 5-4 decision and the Justices in the majority are strong believers in the roles of the courts. It will be interesting to see how this decision holds up over time as the Supreme Court evolves in its configuration because Justices can have different views as to just how broad the authority of courts are.
10. Regardless of statutory rights alleged, look for defendants in all kinds of cases, including ones not involving class actions, to allege that plaintiff does not have standing even if their statutory rights were violated even assuming the allegations are true.
11. Make sure you periodically check your credit report.
12. Are courts really going to get into the business of saying that federal rights created by Congress are of no matter where there is a lack of concrete and particularized harms even where the plaintiff has clearly alleged a prima facie case for a particular statutory claim? It appears that will be the case.
13. Specific harms alleging constitutional violations will get by the majority opinion.
14. How much due respect must a court give to Congress’s decision on statutory rights is an open question.
15. What does “not remotely harmful,” even mean?
16. Where ADA testers are involved, look for the defense to argue lack of concrete and particularized harm per this case regardless of whether injunctive relief or damages are involved. The majority opinion clearly raises the question of whether ADA testers have standing when bringing ADA claims in federal court.
17. Look for more ADA cases to be filed in state courts whenever possible and to stay there. Also look for a very peculiar situation where plaintiffs may allege when a defendant is trying to remove the case that they do not have standing under federal law per this decision, but they do have standing under state law. So, therefore the case should remain in state court and not be removed to federal court. A very odd argument indeed, but one this court sets up by its decision.

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