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PBSA Journal PAGE 20 JULY/AUG 2021 Except where otherwise indicated, articles are copyright © by PBSA 2021. All rights reserved. 1 TransUnion LLC v. Ramirez, 594 U.S.____ (2021) (decided June 25, 2021) 2 The Ninth Circuit is the Federal Court of Appeals for the federal courts in Arizona, Alaska, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state. 3 2021 U.S. App. LEXIS 17687 (9th Cir. June 14. 2021) Are "No Injury" FCRA Lawsuits in the Rearview Mirror? Yes, according to two recent court decisions. By Ben Chan W hen a consumer is denied an opportunity due to an inaccuracy in their consumer report they can prevail on a claim against the CRA who issued the report under Section 1681e(b) of the Fair Credit Reporting Act ("FCRA"). This section requires CRAs to follow reasonable procedures to assure the maximum possible accuracy of the information in their reports. But what if nothing bad actually happened to the consumer as a result of the inaccuracy? Do they still have an FCRA claim? Recent decisions by the U.S. Supreme Court in TransUnion v. Ramirez 1 and the Nineth Circuit Court of Appeals 2 in Leoni v. Experian Info. Solutions 3 have said no. These decisions show how CRAs can defeat "no injury" FCRA lawsuits. TransUnion v. Ramirez The issue in this case was whether Article III of the Constitution permits a class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered. Background In 2002, TransUnion introduced a product called OFAC Name Screen Alert. When a business used the product, TransUnion would conduct its ordinary credit check of the consumer, and it would also use third-party software to compare the consumer's name against the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) list of terrorists, drug traffickers, and other serious criminals. If the consumer's first and last name matched the first and last name of an individual on OFAC's list, TransUnion would place an alert on their report indicating that the consumer's name was a "potential match" to a name on the OFAC list. TransUnion did not compare any data other than first and last names. Sergio Ramirez was unable to purchase a car after his report included such an alert. Ramirez brought a FCRA class action on behalf of 8, 185 individuals with OFAC alerts in their TransUnion credit files, claiming that TransUnion had failed to use reasonable procedures to assure the maximum possible accuracy of their file. Only 1,853 of those class members had reports containing misleading OFAC alerts provided to third parties similar to Ramirez. Decision The Supreme Court held that only 1,853 class members, including Ramirez, had Article III standing to sue TransUnion for failing to use reasonable procedures to assure the accuracy of each report under the FCRA: "Article III confides the federal judicial power to the resolution of 'Cases' and 'Controversies.'" "For there to be a case or controversy under Article III, the plaintiff must have a 'personal stake' in the case—in other words, standing." Sufficiently establishing standing requires that a plaintiff show "(i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief." Most Class Members Lacked "Concrete Injury" The Supreme Court held that the 6,332 class members who did not have reports containing OFAC alerts provided Continued on page 21 Sufficiently establishing standing requires that a plaintiff show "(i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief."

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