Amicus Curiae Brief — TransUnion LLC, Petitioner v. Sergio L. Ramirez

No. 20-297

In the Supreme Court of the United States

TRANSUNION LLC,

Petitioner,

v.

SERGIO L. RAMIREZ,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMERICAN ASSOCIATION FOR

JUSTICE AS AMICUS CURIAE IN SUPPORT OF

THE RESPONDENT

NEIL K. SAWHNEY

GUPTA WESSLER PLLC

100 Pine Street, Suite 1250

San Francisco, CA 94111

(415) 573-0336

MATTHEW W.H. WESSLER

Counsel of Record

JONATHAN E. TAYLOR

GUPTA WESSLER PLLC

1900 L Street NW, Suite 312

Washington, DC 20036

(202) 888-1741

matt@guptawessler.com

TOBIAS L. MILLROOD

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th Street NW

Washington, DC 20001

(202) 944-2839

Counsel for Amicus Curiae

March 10, 2021

-iTABLE OF CONTENTS

Table of authorities ............................................................ ii

Interest of amicus curiae and summary of

argument ............................................................................. 1

Argument ............................................................................ 2

I.

The class members’ injuries here

comfortably satisfy Article III’s minimum

requirements. ...................................................... 2

II.

Neither Article III nor Rule 23 requires

that absent class members submit

evidence of personal standing at class

certification. ....................................................... 8

III. Consistent with Tyson Foods, lower courts

have developed administrable mechanisms

to address the unlikely possibility that

uninjured class members could recover

damages. .............................................................. 13

Conclusion ........................................................................... 17

-iiTABLE OF AUTHORITIES

Cases

A Better Way for BPA v. DOE Bonneville Power

Administration,

890 F.3d 1183 (9th Cir. 2018) ......................................... 7

Amgen Inc. v. Connecticut Retirement Plans & Trust

Funds,

568 U.S. 455 (2013) ........................................................ 10

Cordoba v. DIRECTV, LLC,

942 F.3d 1259 (11th Cir. 2019) ....................................... 9

Environmental Defense Fund v. EPA,

922 F.3d 446 (D.C. Cir. 2019) ......................................... 6

Federal Election Commission v. Akins,

524 U.S. 11 (1996) ............................................................ 6

Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974) .......................................................... 4

Halliburton Co. v. Erica P. John Fund, Inc.,

573 U.S. 258 (2014) ........................................................ 11

In re Asacol Antitrust Litigation,

907 F.3d 42 (1st Cir. 2018)...................................... 10, 16

In re Lidoderm Antitrust Litigation,

2017 WL 679367 (N.D. Cal. Feb. 21, 2017) ................ 17

In re Nexium Antitrust Litigation,

777 F.3d 9 (1st Cir. 2015).................................. 11, 12, 15

In re Restasis (Cyclosporine Ophthalmic Emulsion)

Antitrust Litigation,

335 F.R.D. 1 (E.D.N.Y. 2020) ...................................... 16

-iiiIn re Zetia (Ezetimibe) Antitrust Litigation,

2020 WL 5778756 (E.D. Va. Aug. 14, 2020)................ 17

Kleen Products LLC v. International Paper Co.,

831 F.3d 919 (7th Cir. 2016) ......................................... 12

Krakauer v. Dish Network, LLC,

925 F.3d 643 (4th Cir. 2019) ................................... 10, 17

Long v. Southeastern Pennsylvania

Transportation Authority,

903 F.3d 312 (3d Cir. 2018)............................................. 7

Messner v. Northshore University HealthSystem,

669 F.3d 802 (7th Cir. 2012) ......................................... 11

Public Citizen v. US Department of Justice,

491 U.S. 440 (1989) ...................................................... 6, 7

Robins v. Spokeo, Inc.,

867 F.3d 1108 (9th Cir. 2017) ......................................... 4

Ruiz Torres v. Mercer Canyons Inc.,

835 F.3d 1125 (9th Cir. 2016) ................................. 11, 16

Schleicher v. Wendt,

618 F.3d 679 (7th Cir. 2010) ......................................... 11

Simon v. Eastern Kentucky Welfare Rights

Organization,

426 U.S. 26 (1976) ............................................................ 9

Sosna v. Iowa,

419 U.S. 393 (1975) .......................................................... 8

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) ........................................... passim

-ivTrichell v. Midland Credit Management, Inc.,

964 F.3d 990 (11th Cir. 2020) ......................................... 5

Tyson Foods, Inc. v. Bouaphakeo,

136 S. Ct. 1036 (2016) ........................................... passim

Legislative materials and rules

Federal Rule of Civil Procedure 23(b)(3) ......................... 10

S. Rep. No. 517, 91st Cong., 1st Sess. (1969) ..................... 2

Other authorities

Joshua P. Davis et. al., The Puzzle of Class

Actions with Uninjured Members,

82 Geo. Wash. L. Rev. 858 (2014) .................................. 9

Robert H. Klonoff, Class Actions Part II: A

Respite from the Decline, 92 N.Y.U. L.

Rev. 971 (2017)............................................................... 10

1 William B. Rubenstein, Newberg on Class

Actions § 2:3 (5th ed. 2016) ............................................ 9

Cass R. Sunstein, Informational Regulation

and Informational Standing: Akins and

Beyond, 147 U. Penn. L. Rev. 613 (1999) ..................... 6

7AA Charles A. Wright, Arthur R. Miller, &

Mary K. Kane, Federal Practice and

Procedure § 1778 (3d ed. 2005) .................................... 10

-1INTEREST OF AMICUS CURIAE AND SUMMARY

OF ARGUMENT1

The American Association for Justice (“AAJ”) is a

national, voluntary bar association established in 1946 to

strengthen the civil justice system, preserve the right to

trial by jury, and protect access to the courts for those who

have been wrongfully injured. With members in the

United States, Canada, and abroad, AAJ is the world’s

largest plaintiff trial bar. AAJ’s members primarily

represent plaintiffs in consumer cases, personal injury

actions, employment rights cases, and other civil actions.

Throughout its more than seventy-year history, AAJ has

served as a leading advocate for the right of all Americans

to seek legal recourse for wrongful conduct.

AAJ files this brief to address two arguments—one of

which falls within the scope of the questions presented,

and one of which does not. First, we briefly wish to explain

why respondent Sergio Ramirez and the Solicitor General

are correct that, under this Court’s decision in Spokeo,

Inc. v. Robins, 136 S. Ct. 1540 (2016), every class member

here suffered concrete Article III injury as a result of

petitioner TransUnion’s repeated and willful violations of

the Fair Credit Reporting Act (FCRA).

Second, we wish to respond to an argument made by

two of TransUnion’s amici—the Chamber of Commerce

and the National Federation of Independent Business—

that a class action cannot proceed past the certification

stage if it potentially includes uninjured class members.

1

The parties have lodged blanket consent to file amicus briefs

with the clerk. No counsel for a party authored this brief in whole or

in part and no person other than amicus curiae and its counsel made

a monetary contribution to its preparation or submission.

-2Because TransUnion’s appeal arises from final judgment

after a jury trial, this argument as to the correct “timing”

for evaluating class-member standing is not presented

here. Regardless, it is wrong. Nothing in the Constitution,

Rule 23, or this Court’s precedent requires amici’s novel

rule. Nor does it make sense as a practical matter. As this

brief will explain, the lower courts have adopted a number

of procedural mechanisms to address the rare possibility

that uninjured class members could recover damages.

And, consistent with this Court’s decision in Tyson Foods,

these mechanisms are intended to winnow out any

uninjured class members at the appropriate time: postjudgment proceedings in a claims process.

Based on its members’ expertise in class-action and

consumer litigation—and its organizational concern for

the development of the law in these areas—AAJ is well

positioned to offer a unique perspective on the questions

presented by this case.

ARGUMENT

I.

The class members’ injuries here comfortably

satisfy Article III’s minimum requirements.

Congress enacted the FCRA “to curb the

dissemination of false information by adopting procedures

designed to decrease that risk.” Spokeo, 136 S. Ct. at 1550.

The core purpose of the FCRA, in other words, “is to

prevent consumers from being unjustly damaged because

of inaccurate or arbitrary information in a credit report.”

S. Rep. No. 517, 91st Cong., 1st Sess. 1 (1969). In Spokeo,

this Court made clear that—although “intangible”—this

harm (or a “material risk” of this harm) can constitute a

“concrete” Article III injury. 136 S. Ct. at 1549–50.

-3True, this Court also said in Spokeo that “bare

procedural violation[s]” that result in “no harm” are not

cognizable injuries. See id. at 1550. But TransUnion’s

violations in this case are worlds apart from “the

dissemination of an incorrect zip code, without more.” Id.

Here, a jury found that TransUnion repeatedly violated

the FCRA for years by falsely flagging nearly 10,000 class

members as potential terrorists and national security

threats in their credit reports. The evidence showed that

TransUnion sent thousands of these credit reports to

potential creditors and employers; thousands more were

waiting to be sent at moment’s notice. And the company

compounded these violations by failing to send class

members statutorily required disclosures—information

Congress believed was critical to aid consumers in

verifying the accuracy of their credit reports.

As Ramirez and the Solicitor General persuasively

explain, both of Spokeo’s yardsticks—“history and the

judgment of Congress”—confirm that the class members

have suffered concrete harms, and thus have Article III

standing. See id. at 1549. And this Court’s informationalinjury precedent only reinforces that conclusion. As a

result, the decision below should be affirmed.

1. Article III’s case-or-controversy requirement “is

grounded in historical practice.” Spokeo, 136 S. Ct. at

1549. Thus, if the “alleged intangible harm has a close

relationship to a harm that has traditionally been

regarded as providing a basis for a lawsuit in English or

American courts”—if, in other words, “the common law

permitted suit” in analogous circumstances—the plaintiff

has suffered concrete injury. Id.

As Ramirez and the Solicitor General explain, the

injuries caused by TransUnion’s failure to undertake

-4reasonable procedures in violation of 15 U.S.C. § 1681e(b)

bear a “close relationship” to those recognized under the

common law of defamation. See Resp. Br. 24–27; SG Br.

16–17. By communicating false information about the

class members, TransUnion damaged their “reputational

and privacy interests,” which “have long been protected in

the law.” Robins v. Spokeo, Inc., 867 F.3d 1108, 1114 (9th

Cir. 2017); see also Gertz v. Robert Welch, Inc., 418 U.S.

323, 371 (1974) (White, J., dissenting) (describing “the

historic rule” that “publication in written form of

defamatory material . . . subjected the publisher to liability

although no special harm to reputation was actually

proved”).

History is not the only factor in determining whether

a statutory violation causes concrete injury—the

“judgment” of Congress is equally “important.” Spokeo,

136 S. Ct. at 1549. And here, that too points in favor of

finding that the class members suffered concrete injury.

Indeed, TransUnion’s violations caused the precise injury

that Congress sought to prevent with the FCRA’s

reasonable-procedures provision. See Spokeo, 136 S.Ct. at

1549–50; Pet. App. 22. All of the class members, therefore,

have sufficiently shown Article III standing.

Remarkably, TransUnion questions even whether the

1,853 class members whose inaccurate reports were

disseminated to potential creditors have standing,

because “Ramirez offered no evidence that [the other

class members were] denied credit or suffered any injury

on account of the dissemination of information.” Pet. Br.

23, 26, 40–43. Yet that position directly conflicts with

Spokeo. Where a plaintiff shows “the risk of real harm,”

this Court held, he “need not allege any additional harm

beyond the one Congress has identified.” Spokeo, 136 S.

-5Ct. at 1549. Regardless, as the Solicitor General

persuasively argues (at 17–21), the actual dissemination

to potential creditors of inaccurate information about the

1,853 class members exposed them to an “almost

inevitable risk” of adverse actions and reputational harm.

Nevertheless, according to TransUnion (at 40–42),

because its OFAC alerts did not disseminate “materially

false information,” Ramirez must show more than a risk

of harm to the class members—he must prove that they

suffered further “injury on account of having a credit

report containing a ‘potential match’ alert disseminated to

a third party.” That is wrong for at least three reasons.

First, the OFAC alerts were false—TransUnion

never “correctly flagged” anyone on its OFAC list. Resp.

Br. 11; see SG Br. 20 n.4. Second, that the common law

may have required publication of false information for

defamation doesn’t matter. The harm identified by

Congress need only bear “a close relationship to” the

common-law analogue, and it does here. Spokeo, 136 S. Ct.

at 1549. That is because, “[i]f a plaintiff were required to

satisfy every element of a common law cause of action

before qualifying for statutory relief, Congress’s power to

‘elevat[e] intangible harms’ by defining injuries and chains

of causation which will ‘give rise to a case or controversy

where none existed before’ would be illusory.” Trichell v.

Midland Credit Mgmt., Inc., 964 F.3d 990, 1010 (11th Cir.

2020) (Martin, J., concurring in part and dissenting in

part) (quoting Spokeo, 136 S. Ct. at 1549).2 Third, Spokeo

did not, as TransUnion claims (at 40), confine its analysis

2

As Ramirez explains, it is for this reason that TransUnion’s

repeated refrain that the harm here is analogous “a defamatory letter

left in a desk drawer” is not only a misstatement of the facts and

evidence, but also just irrelevant. See Resp. Br. 22, 27–28.

-6to cases involving “false” information. It described a

“general principle[]”: “[T]he violation of a procedural right

granted by statute can be sufficient in some circumstances

to constitute injury in fact,” and a plaintiff “in such a case

need not allege any additional harm beyond the one

Congress has identified.” 136 S. Ct. at 1549–50. That

principle controls here.

2. TransUnion’s attack on class members’ standing to

bring disclosure claims under 15 U.S.C. § 1681g(a)(1) and

(c)(2) also fails. See Resp. Br. 24–32. But this Court need

not even analyze the Spokeo factors to reach that

conclusion because, as the Solicitor General argues (at 21–

25), it flows directly from this Court’s informational-injury

jurisprudence.

In Spokeo, this Court reaffirmed that the “inability to

obtain information” that is statutorily subject to

disclosure “constitutes a sufficiently distinct injury to

provide standing to sue.” 136 S. Ct. at 1549–50. In support

of that proposition, this Court identified two of its previous

cases: Public Citizen v. U.S. Department of Justice, 491

U.S. 440 (1989), and Federal Election Commission v.

Akins, 524 U.S. 11 (1996). These cases, courts and

commentators recognize, hold that where a statute

requires that certain information be disclosed to those it

would help, “[t]he law is settled that a denial of access to

[that] information qualifies as an injury in fact.” Env’t Def.

Fund v. EPA, 922 F.3d 446, 452 (D.C. Cir. 2019) (cleaned

up); see also Sunstein, Informational Regulation and

Informational Standing: Akins and Beyond, 147 U. Penn.

L. Rev. 613 (1999).

TransUnion brushes these cases off in a single

paragraph, claiming that they only apply to a “failure to

disclose [any] information at all.” Pet. Br. 30 (emphasis

-7added). But this Court’s precedent does not suggest that

informational injury is an all-or-nothing inquiry—in other

words, that Article III asks only whether a plaintiff has

been deprived of all information to which she is statutorily

required. Under TransUnion’s logic, a person who

submitted a FOIA request would lack standing to sue so

long as the government sent him something—even if it

was non-responsive or a response to someone else.

Nothing supports that absurd result.

The rest of TransUnion’s argument consists of

complaints that Ramirez did not present evidence that the

class members suffered shock or confusion as a result of

the company’s disclosure violations. Pet. Br. 31–33; see

also Chamber of Com. & Nat’l Fed’n of Indep. Bus.

Amicus Br. 16–19. But, as explained, whether class

members suffered “any additional harm” injury as a

result of the denial of the statutorily required information

is irrelevant for standing purposes. Spokeo, 136 S. Ct. at

1549. Thus, for example, a government contractor seeking

to confirm that it has been paid in full would have standing

to challenge the denial of a FOIA request even if turns out

that there was no underpayment. See, e.g., Pub. Citizen,

491 U.S. at 449; A Better Way for BPA v. DOE Bonneville

Power Admin., 890 F.3d 1183, 1186 (9th Cir. 2018). A

consumer likewise has a right to review their credit report

under the FCRA before an adverse action “whether the

report is accurate or not,” and regardless of “whether

having the report would allow [them] to stave off” the

adverse action. Long v. Se. Pa. Transp. Auth., 903 F.3d

312, 319-24 (3d Cir. 2018).

-8II. Neither Article III nor Rule 23 requires that absent

class members submit evidence of personal

standing at class certification.

Because this appeal arises from final judgment after

trial, it does not present the question whether absent class

members must establish their personal standing at class

certification. TransUnion wisely does not ask the Court to

weigh in on that question. Still, some of TransUnion’s

amici would have the Court go beyond the questions

presented, this case’s procedural posture, and the scope of

TransUnion’s own argument. The Chamber of Commerce

and the National Federation of Independent Business, in

particular, urge the Court “take this opportunity to

explain that a rigorous assessment of standing must take

place at the class certification stage.” Chamber Br. 9. This

Court should decline the invitation. But if it sees fit to

address that unprecedented question, the Court should

reject amici’s argument and affirm the conclusion below

that, at the certification stage, “only the representative

plaintiff need allege standing.” Pet. App. 16.

1. To begin, there is no constitutional basis for

requiring that absent class members’ personal standing

be evaluated at the certification stage—as even

TransUnion’s amici implicitly acknowledge. See Chamber

Br. 10 n.3. As this Court has explained, once the named

plaintiff establishes Article III injury and membership in

the class, the inquiry shifts “from the elements of

justiciability to the ability of the named representative to

‘fairly and adequately protect the interests of the class.’”

Sosna v. Iowa, 419 U.S. 393, 403 (1975). Spokeo itself

recognized that, to bring a class action, Article III

requires the “named plaintiffs [to] . . . ‘show that they

personally have been injured, not that [the] injury has

-9been suffered by other, unidentified members of the class

to which they belong.’” 136 S. Ct. at 1547 n.6 (quoting

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40, n. 20

(1976)); see also, e.g., Franks v. Bowman Transp. Co., 424

U.S. 747, 771–73 (1976) (permitting class certification even

though some class members “may not in fact have been

actual victims of racial discrimination”).

And that is all they have to show at the certification

stage for the action to be justiciable under Article III, as

courts and commentators alike have broadly recognized.

See Davis et. al., The Puzzle of Class Actions with

Uninjured Members, 82 Geo. Wash. L. Rev. 858, 867

(2014) (“Standing doctrine does not prevent a court from

certifying a class that contains members who will

ultimately turn out not to have meritorious claims.”). In

fact, the very cases that amici cite in support make that

clear. See, e.g., Cordoba v. DIRECTV, LLC, 942 F.3d 1259,

1273 (11th Cir. 2019) (observing that “‘all that the law

requires’ is that a named plaintiff have standing”); see

also, 1 Rubenstein, Newberg on Class Actions § 2:3 (5th

ed. 2016) (“[T]he vast majority of courts continue to heed

the basic rule that the standing inquiry focuses on the

class representatives, not the absent class members.”).

This is not to say that absent class members’ Article

III standing never comes into play. To the contrary, as the

Ninth Circuit correctly held, the issue presents itself at

the time of final judgment, when the district court must

then oversee a process for distributing any aggregate

recovery to qualifying individual class members. Pet. App.

17; see Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036,

1053 (2016) (Roberts, C.J., concurring) (“Article III does

not give federal courts the power to order relief to any

uninjured plaintiff, class action or not.”) (emphasis added);

-10see also, e.g., Klonoff, Class Actions Part II: A Respite

from the Decline, 92 N.Y.U. L. Rev. 971, 986 (2017) (noting

that an “Article III problem would arise only if a court

intended to distribute funds to uninjured people”). The

Constitution simply does not require that injury-in-fact be

proven at the class-certification stage.

2. Nor does Rule 23’s predominance impose such a

requirement. As this Court has made clear, Rule 23(b)(3)

“does not require a plaintiff seeking class certification to

prove that each elemen[t] of [her] claim [is] susceptible to

classwide proof.” Amgen Inc. v. Conn. Ret. Plans & Tr.

Funds, 568 U.S. 455, 469 (2013). And “it would ‘put the

cart before the horse,’ . . . to read Rule 23 to require that

a plaintiff demonstrate prior to class certification that

each class member is injured.” In re Asacol Antitrust

Litig., 907 F.3d 42, 58 (1st Cir. 2018).

Instead, all that Rule 23(b)(3) requires is that common

questions “predominate over any questions affecting only

individual [class] members.” Fed. Rule Civ. Proc. 23(b)(3)

(emphasis added). Indeed, “[t]he entire notion of

predominance implies that the plaintiffs’ claims need not

be identical.” Krakauer v. Dish Network, LLC, 925 F.3d

643, 658 (4th Cir. 2019); see Amgen, 568 U.S. at 469 (noting

that the “focus of the predominance inquiry” is on whether

the “proposed class is sufficiently cohesive to warrant

adjudication by representation” (cleaned up)). Thus, as

this Court has explained, a class can meet the

predominance requirement “even though other important

matters will have to be tried separately, such as damages

or some affirmative defenses peculiar to some individual

class members.” Tyson Foods, 136 S. Ct. at 1045 (quoting

7AA Wright, Miller, & Kane, Federal Practice and

Procedure § 1778, pp. 123–124 (3d ed. 2005)). The fact that

-11“some class members’ claims will fail on the merits if and

when damages are decided” is “generally irrelevant to the

district court's decision on class certification.” Messner v.

Northshore Univ. HealthSystem, 669 F.3d 802, 823 (7th

Cir. 2012); see also Ruiz Torres v. Mercer Canyons Inc.,

835 F.3d 1125, 1137 (9th Cir. 2016) (“[F]ortuitous noninjury to a subset of class members does not necessarily

defeat certification of the entire class.”).

So even if there are individualized questions about

class members’ injuries in a particular case, that matters

for certification only if there is “reason to think that these

questions will overwhelm common ones.” Halliburton Co.

v. Erica P. John Fund, Inc., 573 U.S. 258, 276 (2014). No

such reason exists here. Indeed, even on TransUnion’s

account, the injury question in this case is susceptible of

classwide resolution—after all, TransUnion contends that

no class member except for Ramirez suffered concrete

injury because they have shown only “bare statutory

procedural violation[s].” Pet Br. 30. Whether or not

TransUnion is right, the standing question here will be

answered on a classwide basis. As Judge Easterbrook has

observed, “Rule 23 allows certification of classes that are

fated to lose as well as classes that are sure to win.”

Schleicher v. Wendt, 618 F.3d 679, 686 (7th Cir. 2010).

3. In light of the above, “it is difficult to understand

why the presence of uninjured class members at the

preliminary stage should defeat class certification.” In re

Nexium Antitrust Litig., 777 F.3d 9, 21 (1st Cir. 2015).

“Ultimately, the defendants will not pay, and the class

members will not recover, amounts attributable to

uninjured class members, and judgment will not be

entered in favor of such members.” Id. at 21–22.

-12TransUnion’s amici contend that removing uninjured

class members at the certification stage nonetheless

makes “practical sense” so that “parties do not needlessly

expend time and money . . . litigating a certified class

action through trial only for a court to conclude at final

judgment that significant portions of the certified class

lack standing.” Chamber Br. 10. But as the amici

themselves acknowledge, in many (if not most) cases, it is

difficult to determine “whether the class as defined

contains uninjured members.” Id.; see Kohen v. Pac. Inv.

Mgmt. Co. LLC, 571 F.3d 672, 677 (7th Cir. 2009) (noting

that “at the outset of the case many of the members of the

class may be unknown, or if they are known still the facts

bearing on their claims may be unknown”).

Given this, as we explain in Section III below, these

practical concerns are better addressed by other

mechanisms that courts have developed to deal with this

issue after determining liability. In the end, while

inclusion of uninjured class members at the certification

stage may sometimes be “inefficient,” “this is

counterbalanced by the overall efficiency of the class

action mechanism.” Nexium, 777 F.3d at 22; see also

Kleen Prod. LLC v. Int’l Paper Co., 831 F.3d 919, 929 (7th

Cir. 2016) (“The determination of the aggregate classwide

damages is something that can be handled most efficiently

as a class action, and the allocation of that total sum among

the class members can be managed individually, should

the case ever reach that point.”).

-13III. Consistent with Tyson Foods, lower courts have

developed administrable mechanisms to address

the unlikely possibility that uninjured class

members could recover damages.

TransUnion and its amici raise the specter of a flood

of damages going to uninjured class members if the

decision below is not reversed. But the decision below

simply does not present this concern. For the reasons in

Section I above, as well as those in Ramirez’s and the

Solicitor General’s briefs, all class members here were

injured—they suffered the same concrete injuries as a

result of TransUnion’s willful FCRA violations. And there

were no individualized injury questions because all class

members (including Ramirez) sought only statutory

damages—not actual or consequential damages. See Resp.

Br. 7.

Regardless, there is no reason for the Court to be

concerned about the unlikely event of uninjured class

members recovering damages after a trial and judgment.

In Tyson Foods, Inc. v. Bouaphakeo, this Court sketched

out an approach for how courts should deal with that

possibility during the claims process that occurs long after

class certification, and even after the final liability

determination. And since that decision, the lower courts

have continued to fill in the details, developing a number

of mechanisms that adequately guard against recovery by

uninjured class members.

1. Tyson Foods involved a wage-and-hour class action

in which the defendant had failed to keep any employee

time records, a violation that made it impossible for the

plaintiffs to rely on their individual records in pursuing

their claims. For that reason, the plaintiffs relied instead

on representative testimony to establish how long it took

-14each employee to complete tasks that had been

uncompensated. See Tyson Foods, 136 S. Ct. at 1043–44.

This Court rejected the defendant’s argument that

class certification needed to be reversed, even though the

actual amount of uncompensated time varied from person

to person, and the representative proof itself indicated

that some members didn’t qualify for overtime and were

thus uninjured. See id. at 1047. Instead, Court affirmed a

class verdict despite the fact that it was “undisputed that

hundreds of class members suffered no injury.” Id. at 1051

(Roberts, C.J., concurring). Even at the judgment stage,

therefore, decertification was not required solely on the

ground that the plaintiffs “ha[d] not demonstrated any

mechanism for ensuring that uninjured class members do

not recover damages here.” Id. at 1049. The Court

explained that this question was “premature” and was not

“yet fairly presented by this case, because the damages

award ha[d] not yet been disbursed, nor d[id] the record

indicate how it will be disbursed.” Id. at 1050.

Tyson Foods thus stands in opposition to the idea that

courts “should not certify a proposed class when it is clear

from the nature of the claims, the proposed class

definition, and the undisputed evidence at the class

certification stage that the proposed damages class

includes more than a trivial number of individuals who

would lack standing regardless of the evidence adduced at

trial.” Chamber Br. 9. And, contrary to amici’s novel rule,

Tyson Foods holds that a method for excluding uninjured

class members need not be devised at certification—or

even when the verdict is announced.3

3

This Court’s other holding in Tyson Foods was that the

-152. Since Tyson Foods, lower courts have successfully

identified mechanisms to protect against the possibility

that someone in a class will recover who wasn’t injured by

winnowing out any such people. The existence of these

post-certification mechanisms demonstrates that amici’s

proposed certification-stage inquiry is unnecessary.

To take one example, in In re Nexium Antitrust

Litigation, the First Circuit considered the defendant’s

objection that some class members were not injured by its

anticompetitive practices because they would have bought

the defendant’s brand-name drugs out of brand loyalty—

regardless of the availability of comparable generic drugs.

See 777 F.3d at 20. The court rejected the defendant’s

“mere[] speculat[ion] that a mechanism for exclusion

[could not] be developed later.” Id. at 21. As it explained,

whether a class member was injured could be determined

from unrebutted consumer testimony, “in the form of an

affidavit or declaration,” stating “that, given the choice, he

or she would have purchased the generic.” See id. at 20.

That this mechanism might entail “some individualized

determinations at the liability and damages stage d[id]

not,” the court held, “defeat class certification.” Id. at 21

(emphasis added).

plaintiffs’ representative evidence was permissible. See 136 S. Ct. at

1047. That was particularly so because the defendant had failed to

keep adequate individualized records: “Since there were no

alternative means for the employees to establish” injury, the plaintiffs

could “introduce a representative sample to fill an evidentiary gap

created by the employer’s failure” to follow federal law. Id. Notably,

the same evidentiary problem exists in this case—as Ramirez

explains, TransUnion’s “recordkeeping practices prevented total and

reliable identification of when, and to whom, it had sold OFAC alerts.”

Resp Br. 16 (citing JA 114–15).

-16Of course, as the First Circuit held in a subsequent

decision, if the defendant’s decision to challenge those

determinations would cause individualized questions to

predominate over common ones, then certification may

ultimately not be appropriate. See Asacol, 907 F.3d at 58.

What matters is that district courts “offer a reasonable

and workable plan for how that opportunity will be

provided in a manner that is protective of the defendant’s

constitutional rights and does not cause individual

inquiries to overwhelm common issues.” Id.; see Ruiz

Torres, 835 F.3d at 1137 (observing that “the district court

is well situated to winnow out [] non-injured members at

the damages phase of the litigation, or to refine the class

definition”).

Courts throughout the country have done just that.

They have, for instance, approved the use of expert

methodology to determine what percentage of the class

should be removed for absence of injury, and then used

that methodology in combination with sworn consumer

affidavits and electronic data to ensure that only injured

members of the class recover damages. See, e.g., In re

Restasis (Cyclosporine Ophthalmic Emulsion) Antitrust

Litig., 335 F.R.D. 1, 23–25 (E.D.N.Y. 2020). And they have

done so based on the specific context and facts before

them. In Restasis, for example, the court’s plan relied “on

the extensive and particularized data created in the

pharmaceutical industry that reveals the number of

prescriptions purchased by each consumer and how much

each end-payor paid for each prescription.” Id. at 31. As

the court in that case explained, “[t]hese common

components will significantly narrow the scope of

individualized damages calculations, which will likely

involve simple arithmetic.” Id. Other courts have

employed similar methods to “remove [uninjured class

-17members] from the aggregate damages award . . . [a]t the

claims administration stage.” In re Lidoderm Antitrust

Litig., 2017 WL 679367, at *18–*19 (N.D. Cal. Feb. 21,

2017); see also, e.g., In re Zetia (Ezetimibe) Antitrust

Litig., 2020 WL 5778756, at *19 (E.D. Va. Aug. 14, 2020).

This is true even for cases, like this one, that involve

statutory damages. In Krakauer v. Dish Network, for

instance, the Fourth Circuit rejected the defendant’s

argument that a class seeking statutory damages under

the Telephone Consumer Protection Act should have been

decertified because it “include[d] a large number of

uninjured persons.” 925 F.3d at 657. The court held that

“[t]he class-wide data”—including “aggregate” and

“class-wide records” in the defendant’s custody—

“obviated any concern on this score.” See id. at 657–58. As

Judge Wilkinson explained, the TCPA “creates a simple

scheme for determining if a violation occurred, whether a

defense is available, and what the damages ought to be.”

Id. at 659. So does the FCRA: It sets out a “simple

scheme” for determining liability, and provides for

statutory damages in the event of a violation. And, just as

in Krakauer, here “the advantages of class resolution . . .

follow directly from the statute.” Id.

CONCLUSION

This Court should affirm the decision below.

-18Respectfully submitted,

MATTHEW W.H. WESSLER

Counsel of Record

JONATHAN E. TAYLOR

GUPTA WESSLER PLLC

1900 L Street NW, Suite 312

Washington, DC 20036

(202) 888-1741

matt@guptawessler.com

NEIL K. SAWHNEY,

GUPTA WESSLER PLLC

100 Pine Street Suite 1250

San Francisco, CA 94111

(415) 573-0336

TOBIAS L. MILLROOD

AMERICAN ASSOCIATION FOR

JUSTICE

777 6th Street NW

Washington, DC 20001

(202) 944-2839

March 10, 2021

Counsel for Amicus Curiae