Implications of TransUnion v. Ramirez on Standing for Class Certifications and Class Actions

The TransUnion v. Ramirez decision from the U.S. Supreme Court is likely to have massive implications for standing for class certification and class actions, and potentially for the en banc petition seeking a rehearing on the panel opinion issued in Hunstein v. Preferred Collection & Mgmt. Servs. Inc.

In the 5-4 opinion written by Justice Brett Kavanaugh, the court held that the class in the case did not have standing to sue—only the original plaintiff, Sergio Ramirez. Justices Clarence Thomas, Sonia Sotomayor, Stephen Breyer and Elena Kagan dissent on the opinion, ACA International previously reported.

On this episode of ACA Cast, Jason Tompkins and Jonathan Hoffmann, partners at Balch & Bingham LLP, talk with ACA Director of Education Kelli Krueger about the implications of the Supreme Court's decision on other case law and at the state level.

They also reference a footnote in the court's opinion:

For the first time in this court, the plaintiffs also argue that TransUnion “published” the class members’ information internally—for example, to employees within TransUnion and to the vendors that printed and sent the mailings that the class members received. That new argument is forfeited. In any event, it is unavailing. Many American courts did not traditionally recognize intra-company disclosures as actionable publications for purposes of the tort of defamation. See, e.g., Chalkley v. Atlantic Coast Line R. Co., 150 Va. 301, 326–328, 143 S. E. 631, 638–639 (1928). Nor have they necessarily recognized disclosures to printing vendors as actionable publications. See, e.g., Mack v. Delta Air Lines, Inc., 639 Fed. Appx. 582, 586 (CA11 2016). Moreover, even the plaintiffs’ cited cases require evidence that the defendant actually “brought an idea to the perception of another,” Restatement of Torts Section 559, Comment a, p. 140 (1938), the defendant actually “brought an idea to the perception of another,” Restatement of Torts Section 559, Comment a, p. 140 (1938), and thus generally require evidence that the document was actually read and not merely processed, cf. Ostrowe v. Lee, 256 N. Y. 36, 38–39, 175 N. E. 505, 505–506 (1931) (Cardozo, C. J.).That evidence is lacking here. In short, the plaintiffs’ internal publication theory circumvents a fundamental requirement of an ordinary defamation claim—publication—and does not bear a sufficiently “close relationship” to the traditional defamation tort to qualify for Article III standing.

Contact ACA Cast host, ACA Director of Education Kelli Krueger, at krueger@acainternational.org or Member Services at memberservices@acainternational.org if you have a podcast idea for ACA Cast.