After trying to defend the policy, the college reversed course, changed its policy, and moved to dismiss, arguing that the case was moot. The plaintiffs agreed that injunctive relief was no longer available, but they argued that the case could proceed based on nominal damages. The U.S. District Court for the Northern District of Georgia disagreed and dismissed the case, finding nominal damages were insufficient for Article III standing. Uzuegbunam v. Preczewski, 378 F. Supp. 3d 1195, 1209 (N.D. Ga. 2018). The Eleventh Circuit affirmed, explaining that a claim for nominal damages can save a case from mootness where the claim for compensatory damages fails, but here the plaintiffs never included a request for compensatory damages in the first instance. Uzuegbunam v. Preczewski, 781 F. App’x 824, 831 (11th Cir. 2019). The Supreme Court granted certiorari to “consider whether a plaintiff who sues over a completed injury and establishes the first two elements of standing (injury and traceability) can establish the third by requesting only nominal damages.” Uzuegbunam, 141 S. Ct. at 796.
Consistent with its grant of certiorari, the Supreme Court began its analysis by clarifying that its opinion did not concern injury or traceability, but only whether nominal damages can redress a constitutional violation, or redressability. Taking a historical approach to the issue, the Court found that nominal damages can redress a legally protected right. The Court acknowledged that the rule allowing nominal damages for a violation of a legally protected right has not always been followed, but the Court nonetheless concluded that “the prevailing rule, ‘well established’ at common law, was ‘that a party whose rights are invaded can always recover nominal damages without furnishing any evidence of actual damage.’” Id. at 800. The Court reasoned that this rule is “unsurprising” because in many cases involving loss of fundamental rights, such as due process or voting right violations, the damage is not “reducible to monetary valuation” and “[b]y permitting plaintiffs to pursue nominal damages whenever they suffered a personal legal injury, the common law avoided the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights.” Id.
The respondent and the dissenting opinion authored by Chief Justice Roberts argued that something other than nominal damages provided redressability in the historical cases relied on by the majority, and they contended that nominal damages could be awarded only where a plaintiff pleaded compensatory damages but failed to prove a specific amount. The Court rejected this argument for a number of reasons. First, the argument reversed the relationship between nominal and compensatory damages because nominal damages were not a consolation prize tagalong to compensatory damages; instead, they are the damages awarded by default until another damage is proven. Second, the argument suggested that nominal damages are purely symbolic, which is without legal support. Third, standing is an “irreducible” constitutional minimum and many early courts awarded nominal damages alone, which necessarily must have provided redress.
The Court’s majority made short work of other concerns raised about its conclusion that nominal damages could satisfy the Article III redressability requirement for any wrong. It rejected analogies between nominal damages and attorney fees and costs, because fees and costs are a “byproduct” of a suit, not a form of redressability, whereas nominal damages are not a “byproduct.” Finally, the dissent had raised the issue that courts will now have to decide legal questions “whenever a plaintiff asks for a dollar.” Id. at 802. The majority retorted that if a plaintiff asks for one dollar of compensatory damages, the case is redressable as well. In addition, and importantly, the Court reiterated again that its “holding concerns only redressability” and there are other requirements to gain entrance to federal court. Id.
The Supreme Court Revisits Class Action Standing Requirements (TransUnion v. Ramirez)
In TransUnion v. Ramirez, the Supreme Court granted certiorari to consider “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.” Brief for Petitioner at i, TransUnion v. Ramirez (No. 20-297). The Supreme Court issued its 5–4 decision on June 25, 2021.
The case concerns a class action lawsuit brought by plaintiff Serio Ramirez against TransUnion for violations of the Fair Credit Reporting Act (FCRA). Ramirez v. TransUnion LLC, 951 F.3d 1008, 1017 (9th Cir. 2020). Ramirez filed the action after he was unable to buy a car because his credit report indicated that he was on “a terrorist list” maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC). The OFAC maintains a list of “Specially Designated Nationals” (SDNs), i.e., individuals who are prohibited from transacting business in the United States for national security purposes. Following the incident, Ramirez requested a copy of his credit report. TransUnion sent the report, which included a summary of rights but did not show an OFAC alert. The next day, TransUnion sent a letter regarding the OFAC list, but it did not contain a summary of rights. Ramirez pursued a class action on behalf of himself and over 8,000 other consumers who were incorrectly labeled SDNs and sent an OFAC letter between January 2011 and July 2011. The complaint alleged that TransUnion violated the FCRA by placing false alerts on credit reports and sending misleading information without required disclosures, and brought similar claims under the California Consumer Credit Reporting Agencies Act (CCRAA) for injunctive relief.
The district court certified a nationwide class on the FCRA claims and a California subclass on the CCRAA claims, and the case proceeded to trial. Ramirez v. Trans Union, LLC, 301 F.R.D. 408, 426 (N.D. Cal. 2014). The jury returned a verdict of over $60 million in statutory and punitive damages. On appeal, TransUnion argued that the verdict could not stand because only plaintiff Ramirez suffered a concrete and particularized injury. Ramirez, on the other hand, claimed that only the class representative was required to have standing. Ramirez v. TransUnion LLC, 951 F.3d at 1017. In a 2–1 decision, the Ninth Circuit held that every member of a class certified under Rule 23 must satisfy Article III standing requirements and that in this case, every member of the class had standing to pursue a claim. However, the Ninth Circuit did reduce the punitive damages award from $6,353.08 per class member to $3,936.88, because the award was excessive.
The Supreme Court reversed the Ninth Circuit and remanded for further proceedings. The focus of the Supreme Court’s opinion was on the Article III injury-in-fact standing requirement. Specifically, the Court emphasized that a plaintiff’s injury must be “‘concrete’—that is, ‘real, and not abstract.’” TransUnion v. Ramirez, No. 20-297, slip op. at 8 (U.S. June 25, 2021) (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016)). The Court stated that “[v]arious intangible harms can [] be concrete” and that there are many harms “traditionally recognized as providing a basis for lawsuits in American courts[,]” including “for example, reputational harms, disclosures of private information, and intrusion upon seclusion.” Id. at 9. The “traditional harms” also include those set forth in the Constitution. Id. The Supreme Court noted that in Spokeo it had said that Congress’s views may be “instructive” (id. at 10), but “[a] regime where Congress could freely authorize unharmed plaintiffs to sue defendants who violate federal law not only would violate Article III but also would infringe on the Executive Branch’s Article II authority” (id. at 13). The Court viewed the matter as a separation-of-powers issue. It then applied these concrete harm principles to the case at hand.
The crux of the plaintiffs’ claims was that TransUnion did not do enough to ensure that the OFAC alerts labeling people as potential terrorists were not included in their credit files. First, the Supreme Court addressed the 1,853 class members whose credit reports with OFAC alerts were sent to third parties and their allegations that such dissemination resulted in injury that mirrored the tort of defamation. The Court reasoned that the harm of being labeled a “potential terrorist” bears a close relationship to the harm of being labeled a “terrorist.” Id. at 17. Simply put, the harm from the misleading OFAC alert bears a sufficiently close relationship to the harm of a false or defamatory statement. Therefore, these plaintiffs had suffered a concrete injury and had Article III standing.
However, the remaining 6,332 class members whose credit files with misleading OFAC alerts were not disseminated to third parties were, according to the Court, “a different story.” Id. at 18. The “mere existence of inaccurate database” information is insufficient to confer Article III standing. Id. (citing Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 930 (8th Cir. 2016), and Gubala v. Time Warner Cable, Inc., 846 F.3d 909, 912 (7th Cir. 2017)). As a result, the Supreme Court distinguished between those plaintiffs who had their credit reports disseminated to third-party creditors and those whose credit files were maintained at TransUnion but never disseminated. The former had standing and the latter did not.
The 6,332 class members who could not “demonstrate that the misleading information in the internal credit files itself constitutes a concrete harm” tried to rely on a “risk of future harm” theory to establish Article III standing. Id. at 19–20. Specifically, these plaintiffs alleged that they suffered concrete injury because the mere existence of the inaccurate credit reports created a material risk that the false information would be disseminated to third parties in the future. The Supreme Court rejected this “risk of harm” theory as insufficient to confer Article III standing. It is noteworthy that the plaintiffs relied on former Supreme Court precedent for their “risk of harm” theory, including Clapper v. Amnesty International USA, 568 U.S. 398 (2013), and Spokeo. But the Supreme Court distinguished these cases as involving injunctive relief, whereas the plaintiffs in TransUnion were pursuing damages. In addition, the Supreme Court explained that there is a difference between actual harm that is not yet quantifiable, as in the case of libel and slander per se, and a “mere risk of future harm” and that Spokeo involved the former. To be clear, according to the Court, “Spokeo did not hold that the mere risk of future harm, without more, suffices to demonstrate Article III standing in a suit for damages.” Id. at 22. The Court then held that the 6,332 plaintiffs did not show that the risk of future harm had materialized; therefore, there was no concrete harm. Accordingly, these plaintiffs could not establish Article III standing.
Conclusion
By granting certiorari in Uzuegbunam and TransUnion, the Supreme Court created opportunities to further clarify unsettled aspects of Article III standing law. As a result, the Uzuegbunam decision has now provided guidance on when nominal damages can satisfy the redressability requirement for standing, and TransUnion clarifies Spokeo, severely restricts the “risk of harm” theory of standing, and appears to eliminate it with respect to claims for monetary damages.