Impact Fund and NAACP Legal Defense Fund to SCOTUS: Don’t Rewrite Typicality
David Nahmias, Staff Attorney
When Sergio Ramirez went to a Dublin, California, Nissan dealership to purchase a new car with his wife and father-in-law in February 2011, he could not have foreseen that the experience would cause him to wind up representing over 8,000 people in front of the U.S. Supreme Court ten years later. Nor could he have known that his case would involve complicated issues of standing and sufficiency of class representatives in class actions. Yet those questions are now currently before the Court in TransUnion LLC v. Ramirez. The decision in the case could have significant consequences for class actions that allow ordinary people to join together and vindicate their rights, especially in the civil rights context.
The facts are relatively simple. After Ramirez completed his car loan application that day, a routine credit report revealed that TransUnion, the credit reporting agency, had flagged him as matching with two names on the Treasury Department’s “Specially Designated Nationals List” of persons subject to economic sanctions (a list that includes notorious figures like Joaquin “El Chapo” Guzmán and Kim Jong Un). Although Ramirez had a different birthdate than those so-called matches and was himself not on the list, the Nissan dealership denied his application and refused to sell him the car, as U.S. businesses are prohibited from transacting with listed individuals. Ramirez was both embarrassed and afraid. After he returned home, he contacted TransUnion directly. The company sent him two separate, confusing letters about his credit report and the erroneously placed national security alert. After consulting a lawyer who intervened on his behalf, Ramirez finally succeeded in getting TransUnion to remove the alert.
A trip to the auto dealer turned into a nightmare for Mr. Ramirez who suddenly discovered his credit report wrongly flagged him as a national security threat.
The following year, Ramirez filed a class action lawsuit in federal district court in San Francisco under the Fair Credit Reporting Act, challenging TransUnion’s sloppy practice of placing these inaccurate and damaging alerts on consumers’ files. Ramirez sought to represent a class of consumers whose credit reports were falsely flagged as appearing on the Treasury list. In July 2014, Judge Jacqueline Corley certified the class, and the case went to trial, where a jury awarded Ramirez and the class of over 8,000 consumers $60 million in damages. Last winter, in a 2-1 decision, a Ninth Circuit panel upheld the jury verdict but reduced the damages award. We previously wrote about the decision in Ramirez v. TransUnion LLC, 951 F.3d 1008 (9th Cir. 2020).
TransUnion then appealed to the U.S. Supreme Court, which granted the company’s petition for certiorari. The primary question before the Court, in TransUnion LLC v. Ramirez, No. 20-297, is whether Ramirez sufficiently alleged that all class members suffered legal injury under the Fair Credit Reporting Act to establish class-wide standing under the Constitution. TransUnion disputed the Ninth Circuit’s ruling that Ramirez and all class members had standing to recover monetary damages after trial.
Judge Jacqueline Corley certified the class, and the case went to trial, where a jury awarded Ramirez and the class of over 8,000 consumers $60 million in damages. TransUnion has appealed the decision all the way to the Supreme Court.
TransUnion also argued that Ramirez failed to satisfy the typicality requirement for class certification. Federal Rule of Civil Procedure 23(a)(3) permits certification of a class action if the “claims or defenses” of the class representative—in this case, Ramirez—are “typical” of the claims or defenses of the class members. The Supreme Court has said that this element of the class certification requirements serves as a “guidepost” for determining if the class representative can fairly and adequately protect the rights of the absent class members. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 n.5 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157-58 n.13 (1982)). Courts generally have held that as long as the claims of the class representatives and those of the class members share the same “essential characteristics,” the representative and class members’ interests are sufficiently aligned, satisfying typicality. Factual variations, including in the amount of harm suffered, between the representative and class members generally do not render a class representative’s claims atypical under Rule 23. TransUnion, however, asserted that to satisfy typicality, the class representative and the class members’ injuries—that is, the harms they suffer—must be identical or nearly so. It also contended that Ramirez’s experiences were “idiosyncratic” and “atypically sympathetic” in an ordinary sense of the word, which they claim improperly swayed the jury. TransUnion’s approach to Rule 23 typicality would upend decades of generally accepted class action practice.
The Impact Fund and NAACP Legal Defense and Educational Fund, Inc. filed an amicus brief in the U.S. Supreme Court on behalf of ourselves and twenty-four civil rights organizations in support of Ramirez that specifically challenges TransUnion’s interpretation of Rule 23 as contrary to the text of the rule and decades of case law. We argue that Ramirez indisputably satisfied typicality, as every class member in the case presented the same claims, were subject to the same conduct, and sought the same relief as Ramirez did. The company’s true concern is with Ramirez himself and his strong and sympathetic facts, but as we note, TransUnion had numerous litigation tools available to attack his evidence at trial. “TransUnion seeks to turn Rule 23 typicality on its head, asking the high court to rewrite the rule to protect defendants rather than absent class members,” declared Impact Fund’s Executive Director Jocelyn Larkin. “Nothing in the language or purpose of the rule supports TransUnion’s approach.”
Our brief also explains the harms to civil rights cases that would result should the Supreme Court adopt TransUnion’s approach. The drafters of modern Rule 23 intended for class actions to enhance private enforcement of civil rights laws. “Plaintiffs have successfully obtained class-wide injunctive relief and monetary damages in a wide variety of civil rights cases,” said LDF Senior Counsel Coty Montag. “A ruling in favor of TransUnion would impede the purpose of Rule 23 to remedy widespread, systemic discrimination that impacts communities of color and other vulnerable groups.”
Oral argument in TransUnion LLC v. Ramirez is scheduled for March 30, 2021. We’ll be listening to hear if the justices take TransUnion’s bait to rewrite Rule 23, or if they adhere to the text and clear purpose of the typicality requirement to protect class members—and uphold Sergio Ramirez’s important victory for thousands of consumers.
You can read TransUnion’s brief here. Ramirez’s brief is available here. The press release is here.
We are grateful for the support of our co-authors at the NAACP Legal Defense and Educational Fund, Inc. <@NAACP_LDF > and the twenty-four civil rights organizations who joined our brief:
American Civil Liberties Union https://www.aclu.org/ | @aclu
Bet Tzedek https://www.bettzedek.org/ | @bettzedek
Bronx Defenders https://www.bronxdefenders.org/ | @BronxDefenders
Centro Legal de la Raza https://www.centrolegal.org/ | @centrolegal
Civil Rights Education and Enforcement Center https://creeclaw.org/ | @creeclaw
Disability Rights Advocates https://dralegal.org/ | @dralegal
Disability Rights Education & Defense Fund https://dredf.org/ | @dredf
Disability Rights Legal Center https://thedrlc.org/ | @disabilityRLC
Equal Justice Center https://www.equaljusticecenter.org/ | @EJCjustice
Equal Justice Society https://equaljusticesociety.org/ | @equaljustice
Equal Rights Advocates https://www.equalrights.org/ | @EqualRightsAdv
Just Futures Law https://justfutureslaw.org/ | @JustFuturesLaw
Justice Action Center https://justiceactioncenter.org/ | @jactioncenter
Lambda Legal Defense and Educational Fund https://www.lambdalegal.org/ | @lambdalegal
LatinoJustice PRLDEF https://www.latinojustice.org/ | @latinojustice
Legal Aid at Work https://legalaidatwork.org/ | @legalaidatwork
Legal Momentum https://www.legalmomentum.org/ | @legalmomentum
Mississippi Workers’ Center for Human Rights https://www.msworkrights.org/ | [no Twitter]
National Center for Lesbian Rights https://www.nclrights.org/ | @nclrights
National Employment Law Project, Inc. https://www.nelp.org/ | @NelpNews
National Women’s Law Center https://nwlc.org/ | @nwlc
Prison Law Office https://prisonlaw.com/ | @PrisonLaw
Public Justice Center https://www.publicjustice.org/ | @publjusticecntr
Western Center on Law and Poverty https://wclp.org/ | @western_center