A number of interested groups have weighed in as amici in the Supreme Court’s consideration of TransUnion LLC, Petitioner v. Sergio L. Ramirez, No. 20-297 (U.S.), on review from the Ninth Circuit.  See 951 F.3d 1008 (9th Cir. 2020) .  The issue is the lower court’s attempt, in the face of Article III case law and Federal Rule of Civil Procedure 23, to certify and maintain a damages class action when the vast majority of the proposed class suffered no actual injury, let alone an injury like that alleged by the class representative. Here, the plaintiff suffered injury due to a credit alert that impacted an attempted purchase.

One brief on behalf of the National Association of Manufacturers, American Tort Reform Association, and others, was filed by a group of talented lawyers led by my colleagues Philip S. Goldberg and Andrew J. Trask at Shook Hardy & Bacon LLP.  They noted that plaintiff stipulated that more than 75 percent of the class had no third-party inquiries that could have resulted in anyone beside the class members themselves seeing the potential match alert. Further, he offered no evidence that any absent class member suffered any injury at all, let alone one like his. After a trial focused entirely on Ramirez’s idiosyncratic injury, the jury awarded significant damages to the entire class.  Under Article III of the U.S. Constitution, a person who has not sustained a compensable injury cannot receive a payment as part of a class action in federal court—nor can such a class action
be certified—regardless of whether others have experienced injury. The court’s role is limited to providing relief to claimants, individual or class actions, who have suffered, or will imminently suffer, actual harm.

In addition, it is clear, again, that this lower court could not have made the appropriate “rigorous analysis” of Rule 23’s typicality requirement, particularly with respect to the injury element of a claim. See Wal-Mart, 564 U.S. at 350–51. Rule 23(a)(3)’s typicality requirement often is under-examined and under-enforced. If the lower courts had properly examined at the certification stage whether Ramirez’s injury was typical of the class he sought to represent, it would have been obvious that his experience was, at best, atypical. Another way to think of this is that the outcome of this case would have been materially different had any of the other class members been the named plaintiff.

Accordingly, this case provides the Court an important opportunity to reinforce the proper scope and conduct of a rigorous examination of typicality during class certification. Such a ruling would have an impact beyond no-injury class actions, as here, to the many other class actions where inattention to Rule 23’s typicality requirement generates distorted legal doctrines and blackmail-ish settlements.

One to watch.