Larson v. Trans Union, LLC
Larson v. Trans Union, LLC
Opinion of the Court
ORDER REGARDING SUPPLEMENTAL BRIEFING ON MOTION FOR CLASS CERTIFICATION
On June 26, 2015, I issued an order tentatively granting Larson’s motion for class certification but staying the case pending the outcome in Spokeo, Inc. v. Robins, — U.S.-, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). Dkt. No. 86 (“Prior Order”). Following the Supreme Court’s decision in Spokeo, the parties submitted supplemental briefs on how the decision impacts the tentative class certification ruling. Defendant Trans Union, LLC (“Trans Union”) contends that Larson cannot establish standing under Spokeo, and that even if he could, class certification would still be inappropriate because Spok-eo precludes him from establishing ascer-tainability, predominance, and superiority. Dkt. No. 96 at 3-20 (“Trans Union Suppl. Br.”). According to Larson, Spokeo has “no impact on this case.” Dkt. No. 97 at 1 (“Larson Suppl. Br.”). I heard argument from the parties on July 20, 2016, Dkt. No. 99, and now confirm my tentative order and GRANT class certification.
Spokeo involved an appeal from a Ninth Circuit decision holding that the plaintiff had adequately alleged Article III standing, regardless of whether he had adequately alleged “actual harm,” by merit of his claims under 15 U.S.C. § 1681n(a) for willful violations of the Fair Credit Reporting Act (“FCRA”). Robins v. Spokeo, Inc., 742 F.3d 409, 412-14 (9th Cir. 2014). The Ninth Circuit reasoned that a willful violation claim under section 1681n(a) “does not require a showing of actual harm,” and where a “statutory cause of action does not require proof of actual damages, a plaintiff can suffer a violation of the statutory right without suffering actual damages.” Id. at 413. The Ninth Circuit recognized that Article III “limits the power of Congress to confer standing.” Id. It held, however, that the plaintiffs claimed violations of his statutory rights were sufficient to satisfy Article Ill’s injury-in-fact requirement, first, because he had alleged that the defendant “violated his statutory rights, not just the statutory rights of other people, and second, because his “personal interests in the handling of his credit information are individualized rather than collective.” Id. (emphasis in original).
The Supreme Court held that this analysis was “incomplete.” Spokeo, 136 S.Ct. at 1545. It reasoned that “the injury-in-fact requirement requires a plaintiff to allege an injury that is both concrete and particularized,” and that while “the Ninth Circuit’s analysis focused on the second char
With respect to concreteness, the Court explained that a concrete injury is one that “actually exist[s],” meaning that it is “real, and not abstract,” but “not ... necessarily ... tangible.” Id. at 1548-49 (internal quotation marks omitted). The Court identified two things that are “instructive” in determining whether an intangible injury rises to the level of concrete injury: first, “whether [the] alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit,” and second, “the judgment of Congress,” in that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” Id. at 1549 (internal quotation marks omitted). The Court also emphasized that concreteness may be established by “the risk of real harm.” Id. For example, the common law
has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure. See, e.g., Restatement (First) of Torts §§ 569 (libel), 570 (slander per se) (1938). Just as the common law permitted suit in such instances, the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified. See Federal Election Comm’n v. Akins, 524 U.S. 11, 20-25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (confirming that a group of voters’ “inability to obtain information” that Congress had decided to make public is a sufficient injury in fact to satisfy Article III); Public Citizen v. Department of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (holding that two advocacy organizations’ failure to obtain information subject to disclosure under the Federal Advisory Committee Act “constitutes a sufficiently distinct injury to provide standing to sue”).
Id. at 1549-50 (emphasis in original).
The Court also recognized, however, that Congress’s ability to “identiffy] and elevat[e] intangible harms” to the level of concrete injuries “does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. at 1549. “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. Thus, even in a case involving a statutory right to sue — such as an action brought under section 1681n(a) — a plaintiff who alleges “a bare procedural violation, divorced from any concrete harm, [does not] satisfy the injury-in-fact requirement.” Id. Rather, there must be “some concrete interest that is affected” by the “[deprivation of [the] procedural right.” Id. (internal quotation marks omitted).
Turning to the plaintiffs claims under the FCRA,, the Court acknowledged that Congress “plainly sought to curb the dissemination of false information” in passing the FCRA. Id. at 1550. But the Court observed that “a violation of one of the FCRA’s procedural requirements may result in no harm.” Id. at 1550. That is,
not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.
Id. The Court “expressed no view about any other types of false information,” and “t[oo]k no position as to whether the Ninth Circuit’s ultimate conclusion — that [the plaintiff] adequately alleged an injury in
Spokeo does not deprive Larson of Article III standing. There is no dispute that Larson meets the particularity requirement. He also meets the concreteness requirement. Larson accuses Trans Union of willfully violating 15 U.S.C. § 1681g(a)
I agree with Larson that his section 1681g(a) claim is based on something more than a “bare procedural violation” — such as the “dissemination of an incorrect zip code” — that cannot “cause harm or present any material risk of harm.” Spokeo, 136 S.Ct. at 1549-50. To the contrary, his claim is based on the sort of “informational” injury that the Spokeo Court implicitly
Given that Larson continues to have Article III standing to bring this case despite Spokeo, Trans Union’s challenges to my tentative rulings on ascertainability, predominance, and superiority also fail. Each of those challenges is based on Trans Union’s contentions that the class should not be certified because absent class members lack Article III standing for the same reasons as Larson, and, similarly, because individualized determinations will have to be made with respect to the concreteness of each absent class member’s injury. See Trans Union Suppl. Br. at 12-16 (ascertain-ability); id. at 17-19 (predominance); id. at 19-20 (superiority). In a class action, however, “standing is satisfied if at least one named plaintiff meets the requirements.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007); accord Ellis v. Costco Wholesale Corp., 657 F.3d 970,
Even if this principle did not apply, I am not convinced that individualized determinations on the concreteness of each absent class member’s injury would be necessary. Article III standing in this case, just like Trans Union’s alleged liability under section 1681g(a), is predicated on the character of the allegedly misleading information in the credit reports disseminated to Larson and absent class members, not on Larson’s or absent class members’ subjective interpretation of that information. See Prior Order at 16-19 (rejecting Trans Union’s argument that class certification is inappropriate because the case will “require individualized inquiries into whether each class member actually read the relevant portion of his or her file disclosure, and whether he or she was actually confused by it”). Accordingly, even if Larson’s showing of standing for himself did not establish standing for the class as a whole, the concreteness of each absent class member’s injury, just like the question of liability, could still be resolved without individualized inquiries into how each class member' responded to his or her credit report.
Trans Union also argues that individualized inquiries will be required to assess statutory damages under section 1681n(a). Trans Union Suppl. Br. at 18-19. The problem with this argument (besides the fact that it has nothing to do with Spokeo and Trans Union did not raise it in the original round of briefing on class certification) is that Trans Union cites no authority indicating that statutory damages under section 1681n(a) cannot be determined based on classwide proof. See Hawkins, 2016 WL 3999458, at *6 (“[PJlaintiff and the class seek only statutory damages [under section 1681n(a)]. Damages can therefore be proven through classwide proof.”). In any event, the Ninth Circuit has made clear that “[t]he presence of individualized damages cannot, by itself, defeat class certification under Rule 23(b)(3).” Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013); see also Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013) (“It would drive a. stake through the heart of the class action device ... to require that every member of the class have identical damages.”); In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 854 (6th Cir. 2013) (“[N]o matter how individualized the issue of damages may be, determination of damages may be reserved for individual treatment with the question of liability tried as a class action.”) (internal quotation marks omitted).
For these reasons, and for those stated in the tentative class certification ruling in the Prior Order, Larson’s motion for class certification is GRANTED.
IT IS SO ORDERED.
. 15 U.S.C. § 1681g(a) provides, in relevant part, that ”[e]very consumer reporting agency, shall, upon request, ... clearly and accurately disclose to the consumer .., [a]ll information in the consumer’s file at the time of the request.” 15 U.S.C. § 1681g(a). One of the "primary purposes” of the statute is to "allow consumers to identify inaccurate information in their credit files and correct this information via the grievance procedure established under [15 U.S.C. § ] 1681i.” Gillespie v. Equifax Info. Servs., L.L.C., 484 F.3d 938, 941 (7th Cir. 2007),
. "OFAC” refers to the United States Treasury Department’s Office of Foreign Assets Control. FAC ¶ 1. "OFÁC administers and enforces economic and trade sanctions based on ... foreign policy and national security goals against threats to the national security, foreign policy, or economy of the United States.” Cortez v. Trans Union, LLC, 617 F.3d 688, 696 (3d Cir. 2010). OFAC maintains a database of purported terrorists, narcotics traffickers, money launderers, and other enemies of the state on its "Specially Designated National and Blocked Persons List” (the "OFAC list”). Id. Certain financial institutions are required to consult the OFAC list before transacting with individuals. See 31 U.S.C. § 5318(f)(2). In Cortez v. Trans Union, LLC, the Third Circuit held that information regarding a consumer's appearance on the OFAC list is part of the consumer’s "file” for the purposes of the FCRA and is thus subject to the FCRA’s reporting requirements under 15 U.S.C. § 1681g, See 617 F.3d at 711-12, This case is one of several that have been filed against Trans Union since Cortez alleging claims based on Trans Union’s reporting of OFAC .information.
. The conclusion that Larson has adequately alleged an informational injury aligns with the position taken by the Consumer Financial Protection Bureau in a Truth in Lending Act case currently before the Ninth Circuit, Keen v. JPMorgan Chase Bank, jvIA, No. 15-17188 (9th Cir. docketed Nov. 3, 2015). In an ami-cus brief filed in that case, the Bureau argues that the plaintiffs-appellants (or “Borrowers”) have Article III standing in light of Spokeo because they
have alleged that the Bank failed to disclose accurately the finance charge of their mortgage loan ... [This] alleged invasion of the Borrowers' legally protected interest in receiving information that accurately describes the finance charge that they were legally obligated to pay is a sufficiently con*1108 crete injury-in-fact ... The deprivation of a right to receive information to which one is entitled by law has long been recognized as a constitutionally sufficient injury-in-fact (and thus necessarily sufficiently concrete) ... The Supreme Court has also made clear that the deprivation of a right not to be “the object of a misrepresentation made unlawful under” a statute — that is, a right not to be given false information — satisfies Article Ill’s injury-in-fact requirement. Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74 [102 S.Ct. 1114, 71 L.Ed.2d 214] (1982) ... The Borrowers’ alleged injury here is no different from the injuries at issue in Public Citizen, Akins, and Havens Realty.
Id. at Dkt. No. 28 at 7-10.
. Trans Union asserts that the record here affirmatively establishes that it never sold credit reports containing the OFAC disclosure to any third party. Trans Union Suppl. Br. at 7. Even assuming that this is true, Trans Union identifies nothing in the record indicating that it was apparent to consumers that the OFAC disclosure was not being reported to third parties.
. Following the hearing on July 20, 2016, Trans Union filed several Notices of Supplemental Authority drawing the Court’s attention to recent decisions addressing standing under Spokeo. Dkt. Nos. 101 (regarding Hancock v. Urban Outfitters, Inc., 830 F.3d 511, No. 14-7047, 2016 WL 3996710 (D.C.Cir. July 26, 2016)), 102 (regarding Bock v. Pressler & Pressler, LLP, 658 Fed.Appx. 63, 64-65, No. 15-1056, 2016 WL 4011150, at *1 (3d Cir. July 27, 2016)), 105 (regarding Dolan v. Select Portfolio Servicing, No. 03-cv-03285, 2016 WL 4099109, at *1 (E.D.N.Y. Aug. 2, 2016)), 106 (regarding Groshek v. Time Warner Cable, No. 15-cv-00157, 2016 WL 4203506, 2016 U.S. Dist. LEXIS 104952 (E.D.Wis. Aug. 9, 2016)), 107 (regarding Romero v. Dep't Stores Nat'l Bank, 199 F.Supp.3d 1256, 1259-60, No. 15-cv-00193, 2016 WL 4184099, at *1 (S.D.Cal. Aug. 5, 2016)). I have considered each of the decisions; they do not change the outcome here.
Reference
- Full Case Name
- Brian Douglas LARSON v. TRANS UNION, LLC
- Cited By
- 4 cases
- Status
- Published