Supreme court blocks Congress on right to sue

In a 5-4 decision with important implications for class actions and for Congress’s ability to authorise lawsuits of all kinds, the Supreme Court has rejected the idea that violation of a statute can ever be enough grounds for a lawsuit unless it comes with a more concrete “injury in fact” to potential plaintiffs.
Corporate defendants and the corporate bar will rejoice over the outcome, even as the plaintiffs’ bar and progressives will decry it. Somewhat remarkably, Justice Clarence Thomas joined the court’s three liberals in dissent.
His scholarly opinion not only powerfully undercut not only the majority opinion by Justice Brett Kavanaugh but also the structure of modern standing law as it has existed since the 1990s. Thomas considers the law too restrictive of Congress’s ability to create legal cause of action that would let plaintiffs get into court.
The case arose from a series of statutory violations of the Fair Credit Reporting Act by the credit reporting agency TransUnion that took place in early 2000s. In the immediate post-9/11 era, TransUnion started offering an add-on product that purported to tell anyone seeking a report whether the individual in question was on the federal
government’s list of terrorists and drug traffickers. Unfortunately, TransUnion only bothered to compare first and last names, not dates of birth, initials or any other details that might very easily have made it clear whether the people were in fact the same ones on the list of the Office of Foreign Assets Control.
TransUnion’s actions led to a class action involving two kinds of plaintiffs. First were the 1,853 whose names were actually reported to some entity that sought their credit reports from TransUnion. The others were 6,332 plaintiffs who were not able to show that their names were sent out to third-party entities but were able to allege that TransUnion had violated their rights under the Fair Credit Reporting Act. They said that, among other things, TransUnion failed to follow reasonable procedures to assure maximum accuracy of credit report information and also failed to inform individuals that their names were being associated with the OFAC list.
At trial before a federal district court, the jury found that all the plaintiffs had been harmed under the law and awarded them all damages. The majority opinion in the Supreme Court, however, reversed the jury’s verdict with respect to the 6,332 plaintiffs who couldn’t show that their credit reports had actually been sent out with the inaccurate OFAC association. Kavanaugh’s opinion was based on the reasoning that, to have standing to sue in federal court, the plaintiff must have suffered concrete injury. As he pithily put it, “No concrete harm, no standing.”
He concluded that, in the absence of having their information sent out, any injuries suffered by the 6,332 plaintiffs were merely speculative, based on the possibility of harm rather than actual harm. Although Kavanaugh didn’t use this phrase, you could sum up his theory as, “No harm, no foul.”
Kavanaugh further explained that it was up to the Supreme Court, not Congress, to decide whether there had been concrete injury in a given situation.

—Bloomberg