No. 20-297
`In the Supreme Court of the United States
`
`
`
`TRANSUNION LLC, PETITIONER
`v.
`SERGIO L. RAMIREZ
`
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`SUPPORTING NEITHER PARTY
`
`
`
` ELIZABETH B. PRELOGAR
`Acting Solicitor General
`Counsel of Record
`BRIAN M. BOYNTON
`Acting Assistant Attorney
`General
`MALCOLM L. STEWART
`Deputy Solicitor General
`NICOLE FRAZER REAVES
`Assistant to the Solicitor
`General
`CHARLES W. SCARBOROUGH
`JACK STARCHER
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`MARY MCLEOD
`General Counsel
`JOHN R. COLEMAN
`Deputy General Counsel
`LAURA M. HUSSAIN
`Assistant General Counsel
`RYAN COOPER
`Counsel
`Consumer Financial
` Protection Bureau
`Washington, D.C. 20552
`
`
`
`
`

`

`QUESTIONS PRESENTED
`1. Whether all members of the plaintiff class in this
`case suffered an Article III injury-in-fact when peti-
`tioner willfully violated 15 U.S.C. 1681e(b) by producing
`consumer reports that erroneously designated the class
`members as individuals who are barred from engaging
`in transactions in the United States, without following
`reasonable procedures to ensure the accuracy of those
`designations.
`2. Whether all class members suffered an Article III
`injury-in-fact when petitioner willfully failed to disclose
`upon request all information in each of their consumer
`files, in violation of 15 U.S.C. 1681g(a)(1), and willfully
`failed to provide a summary of each class member’s
`rights with every written disclosure, in violation of 15
`U.S.C. 1681g(c)(2)(A).
`3. Whether the certification of a statutory-damages
`class under 15 U.S.C. 1681n(a) violated the typicality re-
`quirement of Federal Rule of Civil Procedure 23(a)(3)
`when the class representative incurred, and testified to
`the jury concerning, injuries that were different from
`the injuries suffered by other class members.
`
`
`
`
`
`(I)
`
`

`

`TABLE OF CONTENTS
`
`Page
`Interest of the United States....................................................... 1
`Statement ...................................................................................... 2
`Summary of argument ................................................................. 9
`Argument:
`I. All members of the certified class in this case have
`Article III standing to bring reasonable-
`procedures, disclosure, and summary-of-rights
`claims under FCRA ....................................................... 11
`A. All class members have standing to assert
`reasonable-procedures claims under 15 U.S.C.
`1681e(b) .................................................................... 13
`B. All class members have standing to assert
`disclosure and summary-of-rights claims under
`15 U.S.C. 1681g(a)(1) and (c)(2) ............................. 21
`II. When a putative class representative has suffered
`injuries not borne by other class members, a court
`must carefully consider Rule 23’s typicality
`requirement when determining whether to certify
`a statutory-damages class ............................................. 27
`A. In a case where the jury will have significant
`discretion to consider plaintiff-specific facts
`when selecting an appropriate statutory-
`damages award, a court must carefully
`consider whether the typicality requirement is
`satisfied .................................................................... 27
`B. The court of appeals’ typicality analysis was
`incomplete ................................................................ 32
`Conclusion ................................................................................... 34
`Appendix — Statutory provisions ........................................... 1a
`
`
`
`
`(III)
`
`

`

`IV
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Page
`
`Beaudry v. TeleCheck Servs., Inc., 579 F.3d 702
`(6th Cir. 2009), cert. denied, 559 U.S. 1092 (2010) ........... 30
`Broussard v. Meineke Disc. Muffler Shops, Inc.,
`155 F.3d 331 (4th Cir. 1998) ............................................... 29
`Bryant v. Media Right Prods., Inc., 603 F.3d 135
`(2d Cir.), cert. denied, 562 U.S. 1064 (2010) ..................... 31
`Department of the Army v. Blue Fox, Inc.,
`525 U.S. 255 (1999).............................................................. 12
`Doe v. Chao, 306 F.3d 170 (4th Cir. 2002), aff ’d,
`540 U.S. 614 (2004).............................................................. 29
`Electronic Privacy Information Ctr. v. Presidential
`Advisory Comm’n on Election Integrity,
`878 F.3d 371 (D.C. Cir. 2017), cert. denied,
`139 S. Ct. 791 (2019) ..................................................... 25, 26
`FAA v. Cooper, 566 U.S. 284 (2012) ..................................... 12
`FEC v. Akins, 524 U.S. 11 (1998) ............................. 21, 22, 23
`Frank v. Gaos, 139 S. Ct. 1041 (2019) .................................... 2
`General Tel. Co. of the Sw. v. Falcon,
`457 U.S. 147 (1982).............................................................. 27
`Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ................ 16
`Llewellyn v. Allstate Home Loans, Inc.,
`711 F.3d 1173 (10th Cir. 2013) ........................................... 30
`Lujan v. Defenders of Wildlife,
`504 U.S. 555 (1992).............................................................. 11
`Murray v. GMAC Mortg. Corp., 434 F.3d 948
`(7th Cir. 2006) ...................................................................... 32
`Omega SA v. 375 Canal, LLC, 984 F.3d 244
`(2d Cir. 2021) ....................................................................... 31
`Public Citizen v. United States Dep’t of Justice,
`491 U.S. 440 (1989)............................................ 10, 21, 22, 23
`Raines v. Byrd, 521 U.S. 811 (1997) .................................... 13
`
`
`

`

`V
`
`Page
`
`Cases—Continued:
`Robins v. Spokeo, Inc., 742 F.3d 409
`(9th Cir. 2014), vacated and remanded,
`136 S. Ct. 1540 (2016) ......................................................... 13
`Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007) ........... 3, 4
`Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ........... passim
`Stearns v. Ticketmaster Corp., 655 F.3d 1013
`(9th Cir. 2011), cert. denied, 566 U.S. 962 (2012) ............. 29
`Stillmock v. Weis Markets, Inc.,
`385 Fed. Appx. 267 (4th Cir. 2010) .............................. 31, 33
`Summers v. Earth Island Inst.,
`555 U.S. 488 (2009).............................................................. 13
`Thorley v. Kerry, (1812) 128 Eng. Rep. 367 (C.P.) ............ 16
`Town of Chester v. Laroe Estates, Inc.,
`137 S. Ct. 1645 (2017) ......................................................... 11
`Tyson Foods, Inc. v. Bouaphakeo,
`136 S. Ct. 1036 (2016) ........................................................... 2
`Vermont Agency of Nat. Res. v. United States
`ex rel. Stevens, 529 U.S. 765 (2000) ................................... 17
`Wal-Mart Stores, Inc. v. Dukes,
`564 U.S. 338 (2011).............................................................. 27
`Warth v. Seldin, 422 U.S. 490 (1975) ................................... 13
`
`Constitution, statutes, regulations, and rules:
`U.S. Const. Art. III ...................................................... passim
`Copyright Act of 1976, Pub. L. No. 94-553,
`90 Stat. 2541 ........................................................................ 31
`17 U.S.C. 504(c)(1) ........................................................... 30
`Digital Millennium Copyright Act,
`Pub. L. No. 105-304, 112 Stat. 2860 .................................. 30
`17 U.S.C. 1203(c)(3) ......................................................... 30
`Fair Credit Reporting Act, 15 U.S.C. 1681 et seq. ............... 1
`15 U.S.C. 1681(a) ............................................................. 32
`
`
`
`

`

`VI
`
`
`
`Page
`Statutes, regulations, and rules—Continued:
`15 U.S.C. 1681(a)(1) ........................................................... 2
`15 U.S.C. 1681a(b) ..................................................... 20, 1a
`15 U.S.C. 1681a(d)(1) ............................................ 3, 20, 1a
`15 U.S.C. 1681a(f) .................................................. 2, 18, 4a
`15 U.S.C. 1681b .................................................................. 3
`15 U.S.C. 1681b(a)(3) ...................................................... 20
`15 U.S.C. 1681b(a)(3)(F) ................................................. 20
`15 U.S.C. 1681e(b) ............................ 3, 6, 12, 13, 14, 15, 4a
`15 U.S.C. 1681g(a)(1) ........................................ passim, 5a
`15 U.S.C. 1681g(c)(1) ................................................... 3, 6a
`15 U.S.C. 1681g(c)(1)(B)(iii) ............................... 23, 24, 6a
`15 U.S.C. 1681g(c)(2) ......................................... 7, 8, 21, 7a
`15 U.S.C. 1681g(c)(2)(A) ............................ 3, 12, 23, 24, 7a
`15 U.S.C. 1681n ............................................................ 1, 8a
`15 U.S.C. 1681n(a) .................................... 16, 21, 26, 30, 8a
`15 U.S.C. 1681n(a)(1)(A) ................................... 3, 7, 29, 9a
`15 U.S.C. 1681n(a)(2) .................................................. 3, 9a
`15 U.S.C. 1681o ...................................................... 1, 26, 9a
`15 U.S.C. 1681o(a)(1) ................................................. 3, 10a
`Federal Advisory Committee Act, 5 U.S.C. App. .............. 21
`Federal Election Campaign Act of 1971,
`52 U.S.C. 30101 et seq. ........................................................ 22
`Freedom of Information Act, 5 U.S.C. 552 ......................... 21
`Lanham Act, 15 U.S.C. 1051 et seq. ..................................... 31
`15 U.S.C. 1117(c)(1) ......................................................... 30
`Privacy Act, 5 U.S.C. 552a .................................................... 12
`5 U.S.C. 552a(g)(4)(A) ..................................................... 12
`47 U.S.C. 605(e)(3)(C)(i)(II) .................................................. 30
`
`
`
`
`
`
`

`

`VII
`
`Page
`
`Regulations and rules—Continued:
`31 C.F.R. Pt. 501:
`Section 501.701 ................................................................ 18
`App. A ............................................................................... 18
`Fed. R. Civ. P.:
`Rule 23 ................................................... 5, 10, 11, 27, 31, 32
`Rule 23(a)(3) ............................................................. 5, 8, 27
`
`Miscellaneous:
`2 Dan B. Dobbs, Dobbs Law of Remedies
`(2d ed. 1993) ......................................................................... 17
`W.S. Holdsworth, Defamation in the Sixteenth and
`Seventeenth Centuries, 41 L.Q. Rev. 13 (1925) ................ 16
`1 Joseph M. McLaughlin, McLaughlin on Class
`Actions: Law and Practice (17th ed. 2020) ......... 27, 28, 29
`Restatement (First) of Torts (1938) .................................... 17
`Restatement (Second) of Torts (1977) ................................. 16
`1 William B. Rubenstein, Newberg on Class Actions
`(5th ed. 2011) ....................................................................... 28
`S. Rep. No. 517, 91st Cong., 1st Sess. (1969) .................. 2, 24
`7A Charles Alan Wright et al., Federal Practice and
`Procedure (3d ed. 2005) ...................................................... 28
`
`
`
`
`
`
`

`

`In the Supreme Court of the United States
`
`
`
`No. 20-297
`TRANSUNION LLC, PETITIONER
`v.
`SERGIO L. RAMIREZ
`
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`SUPPORTING NEITHER PARTY
`
`
`
`INTEREST OF THE UNITED STATES
`The Fair Credit Reporting Act (FCRA or Act), 15
`U.S.C. 1681 et seq., imposes various requirements on
`certain entities that regularly compile and disseminate
`personal
`information about
`individual consumers.
`FCRA provides those consumers with a cause of action
`to recover actual or statutory damages for certain vio-
`lations of the Act. 15 U.S.C. 1681n, 1681o. FCRA’s pri-
`vate right of action, and private suits seeking recovery
`under the Act, provide an important supplement to the
`federal government’s enforcement efforts. Many fed-
`eral laws contain similar provisions authorizing persons
`whose statutory rights have been violated to sue for
`statutory damages. In addition, the United States is of-
`ten a defendant in both class and collective actions, and
`
`(1)
`
`

`

`2
`
`the government has participated in prior cases involv-
`ing class-action rules and practices. See, e.g., Frank v.
`Gaos, 139 S. Ct. 1041 (2019) (per curiam); Tyson Foods,
`Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016). The United
`States therefore has a substantial interest in the ques-
`tions presented.
`
`STATEMENT
`1. “FCRA seeks to ensure ‘fair and accurate credit
`
`reporting.’ ” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
`1545 (2016) (quoting 15 U.S.C. 1681(a)(1)). Congress
`enacted FCRA to address developments in “computer
`technology [that] facilitated the storage and inter-
`change of information” and “open[ed] the possibility of
`a nationwide data bank covering every citizen.” S. Rep.
`No. 517, 91st Cong., 1st Sess. 2 (1969) (Senate Report).
`Congress designed FCRA “to prevent consumers from
`being unjustly damaged because of inaccurate or arbi-
`trary information,” and “to prevent an undue invasion
`of the individual’s right of privacy in the collection and
`dissemination of credit information.” Id. at 1.
`Under FCRA, a “consumer reporting agency” (CRA)
`includes an entity that, in exchange for monetary fees,
`“regularly engages * * * in the practice of assembling
`or evaluating consumer credit information or other in-
`formation on consumers for the purpose of furnishing
`consumer reports to third parties.” 15 U.S.C. 1681a(f ).
`With exceptions not relevant here, a “consumer report”
`is a CRA’s “communication of any information * * *
`bearing on a consumer’s credit worthiness, credit stand-
`ing, credit capacity, character, general reputation, per-
`sonal characteristics, or mode of living” if that commu-
`nication “is used or expected to be used or collected in
`whole or in part” for “the purpose of serving as a factor
`in establishing the consumer’s eligibility for” specified
`
`
`

`

`3
`
`benefits, including employment, credit, and insurance.
`15 U.S.C. 1681a(d)(1); see 15 U.S.C. 1681b (listing
`“[p]ermissible purposes of consumer reports”) (empha-
`sis omitted).
`FCRA subjects CRAs to a number of requirements,
`three of which are relevant here. First, FCRA requires
`that, “[w]henever a [CRA] prepares a consumer re-
`port,” it “shall follow reasonable procedures to assure
`maximum possible accuracy of the information concern-
`ing the individual about whom the report relates.” 15
`U.S.C. 1681e(b) (reasonable-procedures requirement).
`Second, FCRA provides that every CRA “shall, upon
`request, * * * clearly and accurately disclose to the
`consumer * * * [a]ll information in the consumer’s file.”
`15 U.S.C. 1681g(a)(1) (disclosure requirement). Third,
`FCRA requires a CRA to “provide to a consumer, with
`each written disclosure by the agency to the consumer,”
`a “summary of rights” containing specified information.
`15 U.S.C. 1681g(c)(2)(A) (summary-of-rights require-
`ment); see 15 U.S.C. 1681g(c)(1).
`“Any person who willfully fails to comply with any
`requirement imposed under [FCRA] with respect to
`any consumer is liable to that consumer” for “any actual
`damages sustained,” or for statutory “damages of not
`less than $100 and not more than $1,000,” in addition to
`“punitive damages as the court may allow.” 15 U.S.C.
`1681n(a)(1)(A) and (2). 1 “[W]illful” violations are “know-
`ing violations” and reckless violations in which the de-
`fendant acts based on an “objectively unreasonable”
`reading of FCRA, creating an “ ‘unjustifiably high risk’
`of violating the statute.” Safeco Ins. Co. of Am. v. Burr,
`
`
`1 For negligent violations, the defendant is liable for “actual dam-
`ages.” 15 U.S.C. 1681o(a)(1).
`
`
`
`

`

`4
`
`551 U.S. 47, 57, 70 (2007) (citation omitted); see id. at
`68-70.
`2. Petitioner TransUnion is one of the three largest
`CRAs in the United States. Pet. App. 2. Petitioner sells
`a service that purports to alert customers that a con-
`sumer’s name appears on the list of Specially Desig-
`nated Nationals (SDNs) maintained by the United
`States Department of the Treasury’s Office of Foreign
`Assets Control (OFAC). See ibid. For national-
`security reasons, United States businesses and persons
`are prohibited from transacting with SDNs. See ibid.
`Petitioner’s service places an “OFAC alert[]” on a
`consumer report when the name of a consumer matches
`the name of an SDN. Pet. App. 9. During the time pe-
`riod relevant to this litigation, petitioner’s matching
`process consisted solely of a “name-only” comparison
`between consumers’ first and last names and the names
`on the OFAC list. Ibid. As a result, OFAC alerts were
`incorrectly placed on the credit reports of thousands of
`persons whose names were the same as or similar to the
`names of different individuals who were on the OFAC
`list. Id. at 2.
`3. a. In February 2011, while attempting to pur-
`chase a vehicle, respondent Sergio Ramirez learned
`that petitioner had added an inaccurate OFAC alert to
`his consumer report. Pet. App. 4. The car dealership
`obtained a consumer report that had been prepared by
`petitioner and that included the OFAC alert. Ibid. Be-
`cause of the OFAC alert, the dealership refused to sell
`the car to respondent. Ibid. Respondent later testified
`that he was “embarrassed, shocked, and scared” to
`learn that his name was on the OFAC list. Id. at 5.
`Respondent contacted petitioner and requested a
`copy of his consumer-report file. See Pet. App. 5. In
`
`
`
`

`

`5
`
`response, and in accordance with its practice at the
`time, petitioner sent respondent two separate mailings.
`See id. at 13-14. The first mailing contained respond-
`ent’s credit report and included a summary of consumer
`rights under FCRA. Id. at 5-6. This mailing did not
`mention the OFAC alert. Id. at 6. The second mailing
`(OFAC Letter) informed respondent that his name was
`“considered a potential match” with two names appear-
`ing on the OFAC list, and “that this information may be
`provided to” third parties. Id. at 7. This mailing did not
`include a summary of consumer rights. Ibid. Respond-
`ent later testified that he was confused by these sepa-
`rate mailings and unsure how to have the OFAC alert
`removed. Id. at 7-8. He also canceled a planned inter-
`national vacation due to concerns about the possible
`consequences of the OFAC alert. Id. at 8.
`b. In February 2012, respondent filed this lawsuit,
`alleging that petitioner had violated various FCRA pro-
`visions. See Pet. App. 14. Over petitioner’s objection,
`the district court certified a class consisting of “all nat-
`ural persons in the United States and its Territories to
`whom [petitioner] sent a letter similar in form to the
`[OFAC Letter] [petitioner] sent to [respondent] * * *
`from January 1, 2011-July 26, 2011.” J.A. 294. The
`court determined, inter alia, that respondent’s claims
`were “typical of the claims * * * of the class.” Fed. R.
`Civ. P. 23(a)(3). The court found that, although re-
`spondent’s claims involved “potentially unique” facts,
`J.A. 276, Rule 23’s typicality requirement was satisfied
`because respondent’s legal theory was common to all
`class members, and because both respondent and the
`remaining class members sought statutory damages,
`J.A. 275-278. Petitioner again challenged respondent’s
`
`
`
`

`

`6
`
`typicality in a later motion to decertify the class, C.A.
`E.R. 452, which the district court denied, J.A. 299-311.
`The parties stipulated that the class contained 8185
`consumers. Pet. App. 14. Of those plaintiffs, 1853 had
`their credit reports sold to potential creditors during
`the six-month class period, while the remaining 6332
`class members did not have their credit reports sold to
`potential creditors during that period. See id. at 14-15;
`J.A. 48.
`c. The case proceeded to trial, where the class fo-
`cused a significant portion of its presentation on re-
`spondent’s own experience related to the OFAC alert.
`Class counsel emphasized respondent’s story in both
`their opening and closing arguments. See C.A. Supp.
`E.R. 639-647, 653-655, 1406-1407, 1411-1413. Respond-
`ent was the sole class member who was called as a wit-
`ness at trial, where he provided testimony about his ex-
`perience and the harms he had suffered as a result of
`petitioner’s conduct. See Pet. App. 5-8, 53-54. Peti-
`tioner did not seek to preclude respondent from testify-
`ing about his unique circumstances in any of its five pre-
`trial motions in limine. Cf. D. Ct. Doc. 271, at 3-5 (May
`25, 2017). Petitioner also did not object to the directive,
`incorporated into both the jury instructions and the ver-
`dict form, that if the jury found petitioner liable, it
`should select a single statutory-damages amount to
`“award [to] each member of the [c]lass.” J.A. 579; see
`J.A. 583-584, 691.
`The jury returned a verdict in favor of the class on
`three FCRA claims. It found that petitioner had failed
`to (1) “follow reasonable procedures to assure maximum
`possible accuracy of the information” contained in its
`credit reports, in violation of 15 U.S.C. 1681e(b); (2) dis-
`close that it had identified class members as potential
`
`
`
`

`

`7
`
`OFAC matches when they requested their credit files,
`in violation of 15 U.S.C. 1681g(a)(1); and (3) include a
`summary-of-rights form when it mailed class members
`letters disclosing that an OFAC alert had been placed
`on their credit files, in violation of 15 U.S.C. 1681g(c)(2).
`See Pet. App. 15, 72. The jury also found that peti-
`tioner’s violations were willful, so that each class mem-
`ber was entitled to recover statutory “damages of not
`less than $100 and not more than $1,000,” 15 U.S.C.
`1681n(a)(1)(A), and it awarded each class member
`$984.22 in statutory damages, Pet. App. 15.
`d. A divided panel of the court of appeals affirmed
`the jury’s verdict and its statutory-damages award.
`Pet. App. 1-58.
`i. The court of appeals held that each class member
`had standing to bring all three FCRA claims. Pet. App.
`16-33. The court found that Congress had enacted the
`reasonable-procedures requirement “to protect con-
`sumers’ concrete interests” in ensuring that their credit
`reports contain accurate information. Id. at 22. The
`court explained that, because “the nature of [an OFAC
`alert] inaccuracy is severe,” and because petitioner had
`“made all class members’ reports available to potential
`creditors or employers at a moment’s notice,” peti-
`tioner’s name-only matching process had created a “ma-
`terial risk of harm to the concrete interests of all class
`members.” Id. at 23, 25, 27. The court concluded that
`all class members had suffered injury-in-fact sufficient
`to bring the reasonable-procedures claim, whether or
`not their reports had been disseminated to third par-
`ties. Id. at 26-27.
`Turning to the disclosure and summary-of-rights
`claims, the court of appeals found that 15 U.S.C.
`
`
`
`

`

`8
`
`1681g(a)(1) and (c)(2) work together to “protect con-
`sumers’ concrete interest in accessing important infor-
`mation about themselves and understanding how to dis-
`pute inaccurate information before it reaches potential
`creditors.” Pet. App. 31. The court explained that, alt-
`hough these requirements “may seem ‘procedural’ in
`nature, Congress enacted them because they are the
`only practical way to protect consumers’ interests in
`fair and accurate credit reporting.” Ibid. The court
`found that petitioner’s violations of those requirements
`had “exposed all class members to a material risk of
`harm to their concrete informational interests,” ibid.,
`and that all class members therefore had suffered
`injury-in-fact, id. at 31-33.
`The court of appeals also held that respondent’s
`claims were sufficiently typical of the class’s claims to
`satisfy Federal Rule of Civil Procedure 23(a)(3). Pet.
`App. 38-40. The court found that, because “[t]he typi-
`cality inquiry focuses on the nature of the claim . . . of
`the class representative and not . . . the specific facts
`from which it arose,” it did not matter that respondent
`had suffered more severe injuries than the remaining
`class members. Id. at 39 (citations and internal quota-
`tion marks omitted). The court also concluded that re-
`spondent’s “injuries were not so unique, unusual, or se-
`vere to make him an atypical representative of the
`class.” Id. at 40.2
`
`ii. Judge McKeown concurred in part and dissented
`in part. Pet. App. 51-58. She concluded that “no one
`but [respondent] and the class members whose infor-
`mation was disclosed to a third party had standing to
`
`
`2 The court of appeals also reduced a punitive-damages award
`that the jury had separately awarded to the class. Pet. App. 44-48.
`
`
`

`

`9
`
`assert a reasonable procedures claim, and only [re-
`spondent] had standing to bring the disclosure and sum-
`mary of rights claims.” Id. at 52. She stated that “the
`hallmark of the trial was the absence of evidence about
`absent class members, or any evidence that they were
`in the same boat as [respondent].” Id. at 54.
`SUMMARY OF ARGUMENT
`I. A. Petitioner’s violation of FCRA’s reasonable-
`
`procedures requirement caused all class members to
`suffer a concrete and particularized Article III injury-
`in-fact. In enacting FCRA, Congress expressed a judg-
`ment that persons suffering the harms the class experi-
`enced here should have a right to sue. See Spokeo, Inc.
`v. Robins, 136 S. Ct. 1540 (2016). Petitioner’s placement
`of incorrect OFAC alerts on the class members’ con-
`sumer reports exposed class members to significant
`risk of suffering the same sort of harm that has tradi-
`tionally provided a basis for common-law defamation
`claims. And all class members have demonstrated a sig-
`nificant risk of material harm from petitioner’s conduct.
`Both the class members whose credit reports were
`sold to potential creditors during the class period, and
`those who showed only that they had received their own
`credit reports, were exposed to a material risk of harm.
`That risk stems from three features of petitioner’s
`OFAC alerts. First, those alerts were inaccurate as to
`a material issue—whether third parties may legally
`transact with a particular consumer. Second, even for
`class members whose reports were not shown to have
`been disseminated to third parties, there was a signifi-
`cant likelihood of eventual dissemination, given the fre-
`quency with which such reports are distributed, peti-
`tioner’s ability to provide consumer reports to third
`
`
`
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`10
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`parties at a moment’s notice, and the fact that peti-
`tioner’s sole purpose in preparing the reports was to
`disseminate them to others. Third, consumer reports
`are expected and intended to be used by third-party re-
`cipients in deciding whether to provide tangible bene-
`fits like credit or employment.
`B. In certain circumstances, when a statute provides
`an individual with a right to receive information and
`such information is not provided, that deprivation con-
`stitutes an Article III injury-in-fact. See, e.g., Public
`Citizen v. United States Dep’t of Justice, 491 U.S. 440
`(1989). Congress enacted FCRA’s summary-of-rights
`and disclosure requirements to give consumers the in-
`formation needed to identify and correct any inaccurate
`information in their consumer-report files. The class
`members’ injuries were sufficiently particularized be-
`cause FCRA gives each consumer a right to receive his
`own complete credit file and information about his
`rights related to that file. And under this Court’s prec-
`edents regarding informational standing, which the
`Court cited in Spokeo, such injuries are sufficiently con-
`crete to satisfy Article III.
`II. A. Rule 23 authorizes class certification only if a
`class representative’s claims or defenses are typical of
`those of the class. Typicality may be lacking if a class
`representative has experienced injuries that are differ-
`ent from those suffered by absent class members. In
`such cases, courts must carefully consider whether proof
`of the putative representative’s claim will substantially
`advance the absent class members’ claims; whether the
`claim requires individualized proof to establish liability;
`and whether individualized proof will be necessary to
`determine the amount of damages to be awarded. A
`court may need to take such considerations into account
`
`
`
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`

`11
`
`not only in compensatory-damages cases, but also when
`plaintiffs
`invoke statutory-damages provisions like
`FCRA’s, under which a number of considerations, in-
`cluding plaintiff-specific facts, may bear on the proper
`damages award.
`B. While the courts below largely applied the correct
`framework when conducting the class-certification in-
`quiry, they did not properly consider the nature and sig-
`nificance of respondent’s atypical injuries. This Court
`should vacate the judgment below and remand the case
`to permit the court of appeals to reconsider whether re-
`spondent’s particularly severe injuries defeat typical-
`ity. On remand, that court can also consider whether
`petitioner forfeited its Rule 23 challenge by failing to
`object to respondent’s submission of evidence and argu-
`ments concerning his unique experience.
`ARGUMENT
`
`I. ALL MEMBERS OF THE CERTIFIED CLASS IN THIS
`CASE HAVE ARTICLE III STANDING TO BRING
`REASONABLE-PROCEDURES, DISCLOSURE, AND
`SUMMARY-OF-RIGHTS CLAIMS UNDER FCRA
`To satisfy the “irreducible constitutional minimum”
`for standing under Article III, a plaintiff must establish
`three elements: (1) a concrete and particularized injury-
`in-fact that is actual or imminent; (2) a fairly traceable
`causal connection between the injury and the defend-
`ant’s challenged conduct; and (3) a likelihood that the
`injury will be redressed by a favorable decision. Lujan
`v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see id.
`at 560-561. A plaintiff “must demonstrate standing for
`each claim he seeks to press.” Town of Chester v. Laroe
`Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citation omit-
`ted). The harms that the class members suffered in this
`
`
`
`

`

`12
`
`case constitute concrete and particularized injuries-in-
`fact that support standing for all three FCRA claims.
`Under this Court’s analysis in Spokeo, Inc. v. Rob-
`ins, 136 S. Ct. 1540 (2016), all class members have suf-
`fered injuries-in-fact sufficient to support a claim that
`petitioner failed to “follow reasonable procedures to as-
`sure maximum possible accuracy” of the information in
`their credit files. 15 U.S.C. 1681e(b). And under this
`Court’s decisions in suits brought by plaintiffs who al-
`leged a denial of information to which they had a statu-
`tory right, all class members suffered injuries-in-fact
`as a result of petitioner’s failure to provide them with
`all the information in their credit files, 15 U.S.C.
`1681g(a)(1), and with a summary-of-rights form, 15
`U.S.C. 1681g(c)(2)(A). 3
`
`
`3 A plaintiff who satisfies the general Article III rules that govern
`statutory standing may be required to satisfy additional require-
`ments as well. For instance, a plaintiff who has Article III standing
`nevertheless will lack a judicial remedy against the United States
`unless Congress has enacted a statutory waiver of sovereign im-
`munity. See, e.g., Department of the Army v. Blue Fox, Inc., 525
`U.S. 255, 260-261 (1999). Congress is also free, when creating new
`statutory rights, to limit private judicial enforcement to plaintiffs
`who have suffered some specified type or amount of consequential
`harm. See, e.g., 5 U.S.C. 552a(g)(4)(A) (requiring that a plaintiff
`sustain “actual damages” as a result of certain intentional or willful
`violations of the Privacy Act, 5 U.S.C. 552a, in order for the plaintiff
`to recover against the United States). In addition, where the statu-
`tory language permitting a plaintiff to seek damages to enforce a
`statutory right is unclear, doctrines such as sovereign immunity
`may impact a court’s interpretation of the damages provision. Cf.
`FAA v. Cooper, 566 U.S. 284, 291 (2012) (applying the principle that
`courts must “construe any