Law360 quoted partner Bryan Fratkin, co-leader of McGuire Woods’ class action practice group, in a March 26, 2021 article titled “High Court FCRA Case Could Shake Up Class Action Standing.” The article previewed the March 30 oral arguments in TransUnion v. Ramirez, a U.S. Supreme Court case alleging violations of the Fair Credit Reporting Act (FCRA) that could drastically restrict or eliminate large consumer privacy and data breach class actions.
The Supreme Court has been asked to decide whether federal courts can certify consumer classes in which the "vast majority" of members have not alleged the type of concrete injuries necessary to establish Article III standing, even if the class representative has suffered such an injury. The oral arguments were expected to indicate where the justices stand on the issue and whether they will elaborate on Spokeo v. Robins, a 2016 decision that held plaintiffs must allege concrete injuries and cannot rely on procedural violations to support statutory privacy claims.
"If the court extends Spokeo to require Article III standing for the class and not just the class representative, the decision could very well gut or significantly impair the sort of 'no-injury' class actions that defendants have come to loathe," Fratkin said. "Plaintiffs will either have to allege actual injuries to the class, which will create predominance issues for them at class certification, or deal with the potential for an early defeat on Article III standing," he added.
Fratkin and associates Kamran Ahmadian and Justin Yedor recapped the oral arguments in a March 31 post on the firm’s Class Action Countermeasures blog.