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11:28 Clement: On standing respondent’s view is material risk enough under Spokeo. But if that it, everyone can bring suit for traffic violations where didn’t realize in any harm-Article III would be opened to trivial injuries where people should be toasting good luck, not suing someone who didn’t injure them. There are people in systems of government who can pursue violations of statutes without being harmed themselves-they are called prosecutors. And on typicality-typicality required at onset of the case from the beginning. Not just a trial issue. Defense had right to depose class representatives. Class representatives bring case-why having atypical class representative problem from start. And antitrust cases asked about by Breyer dissimilar-damages issue not that important. In statutory damages, particularly seeking punitives is a real problem here. Plaintiffs saying not to worry-but is abuse court needs to stop by finding worst named plaintiff possible. Not to be case can have standing by suffering a material risk and no injury realized.
11:27 Issacharoff: Difficult to imagine fact pattern more uniform than what have here. Terrorists or drug king pins on OFAC list not who have here-Americans listed improperly. Claims are typical and all people put in harms way by uniform course of conduct.
11:25 Issacharoff: Spokeo left open. Remains question whether court best off handling as standing and then file suit in state court or simply rule against on merits.
11:24: Barrett: Can you ever have a bare procedural violation with respect to consumer protections like FCRA where designed to protect against risk of harm? Whether have information on two pages instead of one, must have a writing, limiting numbers of credit receipt–all of these designed to protect from risk of harm. Can he think of any procedural harm that be bare violation not cognizable under Spokeo?
11:22: Kavanaugh: Saw publication in Spokeo as what supported standing.
11:21 Kavanaugh: Good argument for 8,153 for reasonable procedures but more concerned with 6,000 whose information not published. In Spokeo the information was published, is a big distinction as he sees it. When Spokeo talked about risk of harm, talking about harm beyond publication zip codes. Different from risk of harm when no publication to begin with. On risk of harm-damages v. injunctive relief. With damages he doesn’t think risk of harm is itself a harm under Spokeo.
11:17 Issacharoff: Spokeo brought together different analytic strains. If look at cases in Spokeo and cases decided since then at district court level-what have is damages harms and injunctive relief. Injunctive relief more exacting under Lujan. Difference also between facial and as applied challenges. And if generalized claims to public at large or private rights as seen by Congress. Spokeo looks at all through material risk of harm.
11:16 Kagan: Material risk of harm under Spokeo-what does that mean?
11:15 Issacharoff: Evidence presented to jury (factual determinations as to violation of statute) not that.
11:15 Kagan: Class members complaining about getting two envelopes in mail rather than one. No harm no foul situation?
11:14 Issacharoff: Congress passed PSLRA-thought best for strongest claimant to take the lead. Substantive law on class certification not changed though. Look if claims or defenses same as rest of class-no other way to distinguish. Common answers to common questions.
11:12 Issacharoff: No would not be able to sue there but difference in downloadable computer files.
11:12 Alito: Suppose in 1786 someone getting ready to publish a newspaper article about person and just before published owner of paper said no, not going to, so never published. Would that person have been able to sue for defamation? Was at risk of being defamed but harm never materialized.
11:10 Issacharoff: Yes would be a material risk. Fact is ¼ of class impacted in this way within class period-so is material risk.
11:08 Alito: Assume TransUnion has computer program that will flag first name and last name on OFAC list. If everyone flagged even if no inquiry about that person-would they have standing?
11:07 Issacharoff: Yes-that is right way to think about it. Federal Rules of Evidence Rule 403 and others put burden on objecting court to raise at trial for it to be considered on appeal. Look at mechanics of class certification of Rule 23-consider as early as practicable. At class certification unclear what trial will be-petitioner’s argument to court of appeals didn’t address typicality and instead said Ramirez has no claim-because he had no damages, etc. Only problem with retelling on appeal that this comes up. No evidence before district court at time of certification that anything atypical about Ramirez’ claim.
11:07 Breyer: In classes damages may differ, but issues can be the same. What about person testifying about “extra” or “special” damages. Shouldn’t other side be able to object to this evidence being introduced at trial by saying damages egregious and would prejudice jury?
11:05 Issacharoff: Yes.
11:04 Thomas: Agree every member of the class has to have standing?
11:03 Issacharoff: Spokeo addressed material risk, not subjective knowledge. Question is if material risk of being harmed and if Congress sought to deter material risk by statute.
11:02 Issacharoff: Question of if harmed. Would have standing, citing Footnote 6 of Lexmark.
11:01 Roberts: Say Congress creates statute for private right of action where anyone can sue if drive within .25 miles of drunk driver. What if found out later had driven near drunk driver-sue?
11:00 Issacharoff (Ramirez): Being mislabeled a terrorist is scarlet letter of our time. Petitioner couldn’t identify single correct OFAC match since 2002.
11:00 Prelogar: Denial of information how would describe what happened here. On these facts, Spokeo factors all support finding of standing. Substantial likelihood inaccurate information about class members would be disseminated to third party and Congress intended to protect from this scenario. Other hypotheticals involving other statutes not case at hand.
10:57 Barrett: Havens Realty-isn’t that case distinguishable because involved discrimination and not informational privacy?
10:54 Prelogar: In Spokeo court said risk of harm in some circumstances can be enough. But Spokeo didn’t say limited to common law harms that have been already identified.
10:53 Kavanaugh: Risk of harm-wants to make sure he understands. His is that risk of harm that is not itself separate cognizable harm is not enough. Is that right?
10:52 Prelogar: Think informational standing separate-look at Congress judgment, if common law recognized, etc.
10:52 Gorsuch: Congress says must be provided in particular form. Is that enough for injury in fact or something else must be shown?
10:50 Kagan: Different member of class could have testified at trial, or alternatively TransUnion could have had other class members testify at trial. That isn’t Rule 23 issue, is it?
10:48 Sotomayor: Legal claims of plaintiffs all the same, correct? And Ramirez may be atypical with amount of damages he would receive, but why is that issue under Rule 23(a)?
10:47 Prelogar: No, not position.
10:46 Alito: Isn’t it her position that always injury in fact when Congress says information must be disclosed in particular form and fail to disclose in that form?
10:45 Prelogar: Here where one individual placed on stand and gave specific testimony about his experiences, typicality problem because not representative of class members and they should not benefit from that testimony.
10:43 Breyer: Say class of antitrust plaintiffs all of whom have to pay higher price for price fixing-they could be represented by consumer who bought more product than rest of class so had higher damages. Or class action for class sent to emergency room from injuries and named plaintiff also had to have surgery. In examples named plaintiffs just suffered worse harm-but are their claims not typical?
10:40 Prelogar: Not saying that but used wrong legal lens that may have resulted in improper certification of class. Not saying abuse of discretion though. They think Ramirez’s injuries are atypical.
10:39 Thomas: Is she saying that district court abused discretion in certifying class here?
10:38 Prelogar: Is a stretch to say that is not wrong, mere first and last name match is a match to first and last name on other list but not different from saying John Smith and John Wayne potential match.
10:38 Prelogar: If informational standing best basis for second of two violations, then court doesn’t need to do Spokeo analysis.
10:26 Roberts: How is position different from that of the respondent?
10:35 Prelogar (United States) In Spokeo-discussed whether violation statutory right constitutes injury. Class members have standing here and created real risk of harm from OFAC alert as wrongly labeled for terrorist watch list. What Congress sought to prevent and what common law protected. Under this court’s informational standing cases all plaintiffs have standing for violation of those rights. Real question though here as to whether Rule 23 should be certified.
10:34 Clement: In the end no getting around two fatal flaws-proof of actual de fact injury needed and district court refused to certify state law claims on that ground. District court certified though under Ninth Circuit FCRA precedent. But that was wrong. Ramirez also suffered injuries when not typical under Rule 23. Class certification cannot stand.
10:33 Clement: Court made clear in Lujan and others need to maintain at standing at every stage of the case. For hypo discussing clock runs out on injury. But if becomes clear at trial risk of harm to people did not materialize, could say based on evidence in record they don’t have standing.
10: 32 Barrett: What if file in year 2, litigation drags on and case not come to conclusion for year 6 (with Kagan hypo). What if home free and no cancer would they lose standing? That would be odd way to think about it.
10:31 Clement: Gist of Spokeo is that need injury in fact, injury in the law does not do it. For people focused on public v. private rights, for statute like one at issue here where structure is certain individuals have a right to enforce any violation of a subchapter that is strong indication Congress did not determine private right.
10:30 Clement: On remand lower court should decertify the class because issue of injury not common to the class. Also need to recognize if don’t have injury class must show individually. Class here wrong for reasons in briefing.
10:28 Clement: May be certain risks of harm so high that material risk may be enough for injury in fact. But 25% chance of dissemination of credit report here not enough.
10:27 Kavanaugh: He wants to understand risk of harm. Risk of harm alone not enough for damages as opposed to injunctive relief-how he read TransUnion’s brief. Are they saying risk of harm not enough for damages unless risk of harm separate harm-risk of harm may create emotional injury, for example. Is that right?
10:27 Clement: Here what is actually published is not in fact false-if go to OFAC website today, you will get hit for Ramirez. So what is communicated is his name is a potential match for same first and last name.
10:26 Gorsuch: Common law defamation presumed in rise to injury. Common law presumes an injury. Why wouldn’t same result apply here?
10:25 Clement: What makes material risk injury in fact here-idea that would ruin day if information disclosed about you, etc that requires knowledge of it. How does material risk translate into material fact?
10:24 Gorsuch: So for those in group where no information sent to third parties, you are saying they must have some knowledge of the information to have material risk of injury?
10:24 Clement: What we have here is not material risk to class in this case.
10:23 Gorsuch: Is it there is no material risk these people face or they didn’t know about it (going back to Kagan hypo).
10:22 Clement: People suing in sixth year-those people cannot recover. They would know in five year period. If you are suing for risk that never materializes at that point you cannot maintain action for damages.
10:22 Kagan: Suppose that for this cancer you get or don’t within five years. Say lawsuit filed six years later, same claim, same class. Some people who got cancer in class and some who have not. If everyone has standing within five years shouldn’t they have standing in six because they have all suffered harm?
10:21 Clement: Yes, but say that can tell from type of carcinogen within 1 year of exposure that going to get cancer or not, that would be different scenario.
10:20 Kagan: Suppose that there is carcinogen in drinking water and 50% chance getting cancer, Congress passes law that everyone exposed can get statutory damages. Suppose there is then a class action of people exposed to carcinogen. Would that satisfy Article III?
10:18 Clement: His claim is not typical of average class member. Typicality asks for something more than commonality.
10:17 Sotomayor: Wouldn’t you agree this is typical claim that law was passed to protect people from this sort of situation?
10:16 Clement: First potentially on Rule 23(a)(3) claims and defenses must be typical.
10:16 Sotomayor: She reads Rule 23 as requiring typical claims and defenses. Everyone in class designated as potential match on OFAC list and everyone received same two mailings. Does Rule 23 require typical damages though? Also TransUnion didn’t object to Ramirez testimony or seek discovery from absent class members-this is trial error, not error in certifying class.
10:15 Clement: Hard to unpack. Could have hurt Ramirez and TransUnion. Evidence submitted for thousands of people unlike Ramirez. Also theoretical problem that when court exercising jurisdiction over all absent class members, can’t fix by only giving relief to small percent (25%).
Alito: If we were to agree with you district court should have certified only a narrower class-those persons who information was disclosed to third parties, would that preclude recovery by other members of the class?
Breyer: Why in class action where named plaintiff for instance suffers a head injury for example but not rest of class, why can’t you object at trial as to evidence?
10:14 Alito: Is there really no harm? Say person sees person has been flagged as someone whose name resembles name of person on list. Isn’t that some psychological injury they suffered?
10:13 Clement: Respectfully no. Of the people who had reports disseminated and no one but Ramirez complained. Possible that no harm no foul.
10:12 Alito: The class members who se information was disclosed to third parties certainly have reason to worry about that, wouldn’t you say?
10:12 Clement: Not proper objection to raise-what Ramirez was testifying about was highly relevant in own individual action and not permitted by Rules Enabling Act.
10:10 Breyer: All class members typical in letters got, Ramirez also had other injuries. When trial took place possible for lawyer for company to object to introduction of all evidence about Ramirez as has nothing to do with typical injury suffered by class?
10:09 Clement: Named plaintiff has to have injuries TYPICAL of class. That should be rule of law to solve problem here. For commonality and predominance separate inquiry.
10:08 Thomas: What would be definition of test for typicality?
10:08 Clement: If look at enforcement provision FCRA-gives consumer cause of action for any violation with respect to the consumer and 100 different requirements imposed. Have public enforcement of statute as well-FTC can bring enforcement action and do in front of FTC itself.
10:07: Clement: Yes they would have standing, contract situation different from what have here.
10:06 Thomas: If one of petitioners clients contracted to get information in credit report and didn’t get report for period of time, would that client have standing to sue petitioner?
10:04 Roberts: (Questioning standing of class members) If misleading information about someone shouldn’t they be able to do something about it?
10:03: Clement: Ramirez’s injuries atypical of typical class member who merely received two envelopes containing their information privacy at home. Precludes serving as class representative.
10:00: Clement (for TransUnion): Class certified here suffers from two fatal defects. Absence of class member standing and typicality. Simply receiving information in non-compliant format is not a concrete injury.
9:58: Depending on how the Court rules, this case may have a significant impact on what data privacy class actions can proceed in federal court going forward.
9:55: Here we go! Buckle your seatbelts everyone-this should be an interesting ride. In case you missed it, the Acting Solicitor General Elizabeth Prelogar requested to participate in the TransUnion oral argument as amicus curiae. The amicus brief of the United States argues that “the courts below did not adequately consider whether respondent’s status as class representative, and his testimony concerning the distinct injuries he suffered, created an untoward risk that the jury’s statutory-damages award would overcompensate unnamed class members who did not suffer comparable injuries.” The United States also argues that the case should be remanded to the court of appeals to consider whether petitioner raised an adequate contemporaneous objection to the procedures utilized at trial.