Practice Implications of June 25 Supreme Court Ramirez Decision

On June 25, 2021, the Supreme Court issued its anxiously awaited decision in TransUnion L.L.C. v. Ramirez, 2021 WL 2599472 (U.S. June 25, 2021) (now published at 141 S. Ct. 2190). The 5-4 decision follows up on the Court’s 2016 decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which, like Ramirez, also addressed whether the injury a consumer suffered due to an inaccurate credit report met the concreteness requirement for Article III standing.

Both cases have an impact far beyond Fair Credit Reporting Act (FCRA) class actions. They will have a decided impact on virtually all federal court consumer and other class actions and even on many individual federal court actions. This includes cases, for example, under the Fair Debt Collection Practices Act (FDCPA), the Truth in Lending Act (TILA), the Telephone Consumer Protection Act (TCPA), the Real Estate Settlement Procedures Act (RESPA), and state law claims brought in federal court. This article outlines the Ramirez holding, details its practice implications for consumer litigation generally, and provides advice on how consumer litigants can still use the courts to enforce their rights.

The Ramirez Facts and Holding

The Ramirez case arose when TransUnion, one of the “Big Three” nationwide consumer reporting agencies (CRAs or credit bureaus), issued a report identifying a car buyer, Sergio Ramirez, as a potential terrorist. TransUnion had done so based solely on the fact that the plaintiff had the same first and last name as a person on the federal government’s terrorist watch list. TransUnion did not check any other identifying features, such as Ramirez’s middle initial, date of birth, or address.

Since federal law prohibits transacting any business with a person who is on this list, Ramirez was denied a car loan. Ramirez filed suit on his own behalf and on behalf of thousands of other individuals who had been wrongly labeled as terrorists due to TransUnion’s appallingly sloppy matching criteria.

The Supreme Court agreed with Ramirez that TransUnion had failed to use reasonable procedures to ensure the accuracy of class members’ credit reports. The Court held, however, that while Ramirez had suffered a concrete injury, the other class members who were tagged as terrorists had standing only if their erroneous information in TransUnion’s files was sent to third parties. Over a stinging dissent written by Justice Thomas, the Court held 5-4 that class members whose false information had not been published to a third party did not suffer concrete harm, and they had no standing to bring an FCRA action in federal court.

The Ninth Circuit had found that TransUnion also violated the FCRA by, in response to Ramirez’s request for a copy of his credit file, sending him an incomplete version of his file that did not mention the terrorist alert. A day later, it sent him a second mailing that informed him of the terrorist match but did not include the required summary of his FCRA rights. The Supreme Court characterized these disclosure violations as mere format violations, and the majority held that the class members—other than Ramirez himself—did not have standing to raise these claims because they did not identify any “downstream consequences” that they suffered from failing to receive the required information.

Appellate decisions in consumer cases concerning Article III standing after Spokeo are discussed in detail in NCLC’s Fair Credit Reporting § 11.3.1.1, Fair Debt Collection § 11.10, NCLC’s Federal Deception Law § 6.10 (Telephone Consumer Protection Act), Truth in Lending § 11.2.4, and Mortgage Servicing and Loan Modifications § 3.12.2.2. Practitioners will need to evaluate the extent to which these existing post-Spokeo decisions remain good law after Ramirez. This is particularly true in Circuits such as the Sixth, Seventh, and Eleventh, where decisions were split on key questions. The majority opinion in Ramirez cites favorably a number of decisions from these Circuits.

Consumers Should Cite Ramirez to Support Standing in Three Different Types of Cases

Most of Ramirez’s holdings increase the difficulty of supporting standing in federal court consumer actions. However, Ramirez also solidifies the view that three types of injury should be sufficient for constitutional standing in federal court:

Physical or Monetary Injury: Ramirez states that “[i]f a defendant has caused physical or monetary injury to the plaintiff, the plaintiff has suffered a concrete injury in fact under Article III” (Ramirez, at *7). This fairly obvious point is only implicit in Spokeo. Ramirez highlights the importance of placing a monetary value on the denial of a consumer right whenever possible.

Reputational Harms, Disclosure of Private Information, Intrusion Upon Seclusion: Ramirez lists several types of intangible harms that are concrete because they were actionable under common law for analogous wrongs: reputational harms, disclosure of private information, and intrusion upon seclusion (Ramirez, at *7). Many claims under federal consumer protection statutes protect against these privacy-related harms.

One example is robocalls and unwanted faxes that violate the Telephone Consumer Protection Act. See NCLC’s Federal Deception Law § 6.10.3.2. Even before Ramirez, the vast majority of federal courts held that the harm caused by unwanted calls is closely related to that made actionable by common law torts such as invasion of privacy, so that consumers have Article III standing. NCLC’s Federal Deception Law §§ 6.10.3.4, 6.10.4, 6.10.5. Article III standing should be even clearer now for these cases.

Many Fair Debt Collection Practices Act (FDCPA) violations, such as harassing phone calls and revealing information about the debt to others, also involve these same harms. See NCLC’s Fair Debt Collection §§ 11.10.7 to 11.10.10. And, of course, Ramirez makes it clear that credit reporting errors that are communicated to third parties cause concrete injury for the same reasons.

Infringement of Constitutional Rights: Ramirez identifies infringement of rights afforded by the Constitution as injuries that may be concrete (Ramirez, at *8). While the Court mentions only free speech and free exercise as examples, the decision should remove any doubt that a consumer has standing to litigate other constitutional rights as well.

Examples of constitutional rights that may arise in consumer cases include denial of due process in collection of a government debt (see NCLC’s Collection Actions § 11.2) and police involvement in a repossession (see NCLC’s Repossessions § 6.3.6.3). Another example is denial of the Fourth Amendment protection against unreasonable searches and seizures when the government is involved in entering illegally upon a consumer’s property, detaining a consumer, or seizing the consumer’s property. See NCLC’s Repossessions § 6.3.6.4.

When Does Harm Have a Close Relationship to Harm Traditionally Recognized as a Basis for a Lawsuit?

Ramirez provides more detail about one of the two alternative tests for Article III standing articulated in Spokeo—that the harms the plaintiff suffered have a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts (Spokeo, 136 S. Ct. at 1549). Ramirez states that Article III “does not require an exact duplicate in American history and tradition” (Ramirez, at *8).

Accordingly, the Court agreed that the harm caused by disclosure to a third party that a consumer was a “potential terrorist” (emphasis added) was closely related to the harm made actionable by the tort of defamation, even though this statement was only misleading, rather than being literally false, as required for a defamation claim. However, the Court also held that, because at common law, publication of the false information was “a fundamental requirement of an ordinary defamation claim” (Ramirez, at *12 n.6), mere retention in a consumer’s credit file of a false identification as a terrorist had an insufficiently close relationship to a harm traditionally actionable at common law to give the plaintiff Article III standing (Ramirez, at *12).

In determining whether a statutory claim is sufficiently related to a common law cause of action to allow standing, the Court’s refusal to distinguish between a misleading statement and a false statement is helpful in arguing that a statute and common law claim are sufficiently related. For example, in some jurisdictions an invasion of privacy is actionable as a common law tort only if the invasion is “highly offensive.” See NCLC’s Fair Debt Collection § 15.3.1. Ramirez may be helpful in arguing that a statutory claim is sufficiently related to this common law tort even if the statutory claim does not require such a high degree of offensiveness. This, like the difference between a misleading statement and a false statement, is essentially only a difference in degree.

While Ramirez only mentions common law claims involving reputational harms, disclosure of private information, and intrusion upon seclusion, many other common law claims can be appropriate analogies for federal claims. These include fraud, negligence, and false imprisonment. See, e.g., NCLC’s Fair Debt Collection Chapter 15.

The Role of Congress’s Judgment—What is Congress’s Role after Ramirez?

Spokeo very clearly holds that “the judgment of Congress” plays an “important role[]” in determining whether an intangible injury is concrete (Spokeo, at 1549). The decision holds that, “because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important” (Spokeo, at 1549). It quotes with approval two of its earlier decisions, holding that Congress may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law,” and that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before” (Spokeo, at 1549).

Spokeo made this point clear even with respect to procedural protections: “[T]he violation of a procedural right granted by statute can be sufficient in some circumstances to constitute an injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” (Spokeo, at 1549).

The majority opinion in Ramirez appears to rob this principle of meaning. Ramirez states that “Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III” (Ramirez, at *8). It goes on to hold:

For standing purposes, … an important difference exists between (i) a plaintiff ’s statutory cause of action to sue a defendant over the defendant’s violation of federal law, and (ii) a plaintiff ’s suffering concrete harm because of the defendant’s violation of federal law. Congress may enact legal prohibitions and obligations. And Congress may create causes of action for plaintiffs to sue defendants who violate those legal prohibitions or obligations. But under Article III, an injury in law is not an injury in fact. Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court. As then-Judge Barrett succinctly summarized, “Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.”

Ramirez, at *8, emphasis in original.

This passage appears to confine Congress’s role to creation of substantive rights, with no role in defining whether a harm is concrete—a flat contradiction of Spokeo and the cases it relied on. Justice Thomas’s strong dissent points out how far this conclusion strays from logic and history (Ramirez, at *20–21).

Where, then, does Ramirez leave the role of the judgment of Congress? The decision holds that Congress’s creation of a statutory right with a private cause of action is not in itself enough to establish that a violation creates a concrete injury. However, in order to give continuing meaning to Spokeo, Congress must have some role in determining whether an injury is concrete. Perhaps there is an argument that the rule that courts must give “due respect” to Congress’s judgment (Ramirez, at *7) means that there is a presumption that a harm is concrete if Congress identified it as actionable. At the very least, in borderline cases, courts should side with Congress’s judgment.

As discussed in the next section, it is also possible to interpret Ramirez as addressing only violations of procedural rights created by Congress, not substantive rights. Perhaps, when Congress creates a new substantive right and creates a remedy for its violation, courts will defer to its judgment that a violation is a concrete injury. Post-Spokeo decisions from federal Courts of Appeal have often analyzed the “judgment of Congress” by asking “is this a harm that the Congress enacted the statute to prevent?” See NCLC’s Fair Debt Collection § 11.10.4.4.1. These decisions may still hold weight after Ramirez.

Another way that Congress can give concreteness to a statutory right is to ensure the availability of injunctive relief. The majority opinion recognizes that “a person exposed to a risk of future harm may pursue forward-looking, injunctive relief to prevent the harm from occurring, at least so long as the risk of harm is sufficiently imminent and substantial.” Ramirez, at *12. Many federal consumer protection statutes provide for injunctive or other prospective relief, and a consumer plaintiff should always evaluate whether to assert such a claim. Most courts considering the issue have held that the FCRA does not provide for injunctive relief, however. See NCLC’s Fair Credit Reporting § 12.6.

Congress’s Judgment as to Procedural vs. Substantive Requirements—Does It Make a Difference?

The Spokeo decision dwelt on a characterization of the case’s FCRA violations as merely “procedural.” Although the Spokeo Court did not clearly indicate the role of the distinction between procedural and substantive violations, many decisions have given meaning to this distinction, often by giving greater weight or conclusive weight to Congress’s judgment in enacting a statute that creates substantive protections and grants a private remedy for violations. See NCLC’s Fair Debt Collection § 11.10.3.3.

The majority opinion in Ramirez appears to give no weight to this distinction. It uses the term “procedural” only once, in a quote from Spokeo by which it characterizes the plaintiff’s “format” claim as a “bare procedural violation” (Ramirez, at *15). And it applies the same standards to the plaintiffs’ claim that they were wrongfully tagged as potential terrorists as it applies to the “format” claim. It is hard to imagine a violation that is more “substantive” than being tagged and reported as a potential terrorist, so the Court’s application of the same standards to this claim suggests that it makes no difference whether a violation is procedural or substantive.

However, remember that the claim that the Ramirez plaintiffs were wrongfully tagged as terrorists was based on the FCRA requirement that credit reporting agencies “follow reasonable procedures to assure maximum possible accuracy” in consumer reports. 15 U.S.C. § 1681e(b). One of the claims in Spokeo was also based on this requirement, and the Spokeo Court characterized it, and all of the plaintiff’s other claims, as procedural. As a result, perhaps there is still an opening to argue that Congress’s views should be given more weight when the claim is a violation of a substantive statutory protection. Since Ramirez deals only with rights that the Court has characterized as procedural, it would still be reasonable to argue that, when Congress has created a substantive right and made violations privately actionable, deprivation of that right is a concrete injury in and of itself. However, this approach is much more likely to be successful if the right that Congress created is not only substantive but also one that would be readily recognized as important, and it is far safer to file suit only where it is possible to allege some harm besides the violation of the right itself.

Is The Risk of Harm a Concrete Injury? Are Such Suits Limited to Injunctive Relief?

Ramirez cuts back on the principle that Spokeo seemed to adopt, that “the risk of real harm” can be a concrete injury in a suit seeking money damages (Spokeo, at 1549). Where there is only a risk of harm, the Ramirez Court seems to confine standing to suits seeking prospective relief, such as an injunction.

Of course, a risk of harm can independently create concrete injury. Ramirez acknowledges that there might be standing if “the exposure to the risk of harm itself causes a separate concrete harm” (Ramirez, at *13, emphasis in original).

As an example, the Court noted that “a plaintiff’s knowledge that he or she is exposed to a risk of future physical, monetary, or reputational harm could cause its own current emotional or psychological harm” (Ramirez, at *15 n.7). While the Court cautioned that it was not taking a position on whether emotional distress might suffice as a concrete injury, it has approved of the award of emotional distress damages in the past, Carey v. Piphus, 435 U.S. 247 (1978), and many lower courts have held that emotional distress is a concrete injury for purposes of Article III standing. See NCLC’s Fair Debt Collection § 11.10.3.4. A plaintiff might also spend money on precautionary measures upon learning of a risk of harm, and many courts have held that a loss of time is also a concrete injury. See NCLC’s Federal Deception Law §§ 6.10.3.4, 6.10.5.

One concern is how great and how clear the risk of harm must be in order to meet Article III standards. A second basis for the Ramirez majority’s rejection of the risk-of-harm argument was that “the plaintiffs did not factually establish a sufficient risk of future harm to support Article III standing” (Ramirez, at *14), because the risk of future harm was too speculative. The dissents by both Justice Thomas and Justice Kagan appropriately lambast this mischaracterization of the record (Ramirez, at *22, Thomas, J., dissenting; Ramirez, at *24; Kagan, J., dissenting).

The fact that this part of the majority opinion is based on its characterization of the factual record means that it can be overcome with stronger proof. The high court’s reluctance to draw the obvious conclusions from the facts in the record highlights the importance of nailing down the risk of harm with positive proof, leaving as little as possible to inferences.

“Downstream Harm” Must be Shown for Disclosure Format Violations—But What About Misleading Disclosures or Non-Disclosure?

The Court addressed several additional issues with respect to Ramirez’s claims that were based on TransUnion’s failure to comply with the FCRA’s file disclosure requirement and its duty to include a summary of consumer rights with a file disclosure. The Court characterized these claims as based on incorrect formatting of the notices Ramirez received (Ramirez, at *15), a characterization disputed by the dissent (Ramirez, at *21–22). It held that the plaintiffs, other than Ramirez himself, lacked standing because they did not present evidence of harm caused by the format of the mailings (Ramirez, at *15). Quoting Spokeo, the Court said that, without such proof, these were “bare procedural violation[s], divorced from any concrete harm” (Ramirez, at *15).

The Court, based on three different grounds, rejected the consumers’ argument that the file disclosure and notice violations were concrete because they were claimed to be informational injuries:

• • The violations only involved formatting, not a denial of information. 
• • The Court distinguished its prior cases recognizing informational injuries as concrete on the ground that they involved public disclosure or sunshine laws that entitle all members of the public to certain information. The Court did not, however, suggest any reason why a plaintiff would be more concretely injured by denial of information mandated by a sunshine law than by a law that mandates a disclosure to that particular individual.
• • The Court stated that the plaintiffs had not identified any “downstream consequences” from failing to receive the required information, and stated broadly that an “asserted informational injury that causes no adverse effects cannot satisfy Article III” (Ramirez, at *15, quoting Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 1004 (11th Cir. 2020)). The Court suggested that consumers might have had standing if they had established that they would have tried to correct their files, and thereby prevent dissemination of a misleading report, if they had been sent the information in the proper format (Ramirez, at *15).

The Court’s treatment of informational injuries creates particular problems for litigation alleging statutory disclosure violations. For example, several important FDCPA provisions impose disclosure requirements on debt collectors, and the core protections of the Truth in Lending Act are disclosure requirements. In these cases, case selection will be of utmost importance. Cases that focus on technical requirements or format will likely be dismissed for lack of standing unless the plaintiff can allege and prove some “downstream consequences.”

It is important to stress, however, that the Ramirez Court characterized the plaintiff’s claims as involving the format of disclosures, not the failure to give disclosures or the provision of misleading disclosures. Cases that involve non-disclosure or misleading disclosure may receive a more favorable reception in the courts.

Even for these cases, however, courts are much more likely to find standing if it can be truthfully alleged and proven that the consumer was actually misled, or that the consumer took or failed to take some action because of the violation. The Seventh Circuit has held that an allegation that the consumer was confused by the misleading disclosure is insufficient. See Smith v. GC Servs. Ltd. P’ship, 986 F.3d 708 (7th Cir. 2021). However, other courts have held that confusion is a concrete injury. See NCLC’s Fair Debt Collection § 11.10.3.4. Ramirez adds some weight to this view, in that it cites the fact that the plaintiffs, other than Ramirez, did not present any evidence “that they were confused, distressed, or relied on the information in any way” as support for its conclusion that the plaintiffs had not alleged a concrete harm. Ramirez, at *15.

The Impact of Ramirez on FCRA Cases

The Ramirez decision involved FCRA claims under FCRA § 1681e(b), which requires that when “a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” Prior to Ramirez, most courts outside the Ninth Circuit had held as a matter of statutory interpretation that a § 1681e(b) claim required that the report be sent to a third party. Thus, as a practical matter, the impact of Ramirez on a § 1681e(b) claim is primarily limited to the Ninth Circuit.

For § 1681g claims or other disclosure-based claims under the FCRA, practitioners should carefully evaluate where and if to file those claims if such claims can be characterized (fairly or not) as “formatting errors” rather than as a misleading disclosure or failure to provide the disclosure at all. Consumer attorneys should also be careful to allege and prove downstream consequences from the inability to receive a disclosure. For example, a consumer who was unable to obtain a free annual credit report under the FCRA may need to allege that such inability caused them anxiety about whether a credit check would serve as a barrier in being approved for a rental application or deterred them from applying for credit.

A final note is that Ramirez deals only with private enforcement of the FCRA. To the extent that Article III decisions undermine the private attorney general model on which many federal consumer protection statutes rely, robust federal and state enforcement of laws such as the FCRA becomes all the more important.

Is State Court the Solution?

For consumer claims that Ramirez makes harder to litigate in federal court, the best strategy may be to file the case initially in state court. Article III controls standing only in federal court, and states are free to set their own standing rules. See ASARCO v. Kadish, 490 U.S. 605, 617 (1989) (state courts are free to “cho[o]se a different path” by taking “no account of federal standing rules”). In fact, a footnote in Justice Thomas’s dissent essentially predicts that the upshot of Ramirez is to “ensure[] that state courts will exercise exclusive jurisdiction over these sorts of class actions.” Ramirez, at *23 n.9 (Thomas, J., dissenting). For 50-state survey of state class action procedures and case law, see NCLC’s Consumer Class Actions Appx. C.

With respect to cases that allege only state law claims, an individual case cannot be removed to federal court, unless diversity jurisdiction is implicated. This also holds for class actions unless the Class Action Fairness Act (CAFA) provides federal jurisdiction. See NCLC’s Consumer Class Actions § 2.4.4. In any case in which the consumer is the defendant and brings federal counterclaims to a state court collection action, the creditor/plaintiff has no right to remove the case to federal court, even if CAFA would otherwise provide federal jurisdiction to the class counterclaim. See NCLC’s Collection Actions § 5.7.4; NCLC’s Consumer Class Actions §§ 2.4.4, 2.6.

If the consumer’s action is removable to federal court because it involves a federal claim or implicates CAFA federal jurisdiction, it will be the defendant who is invoking federal jurisdiction upon removal, and the defendant will then bear the burden of showing that the plaintiff has Article III standing. See Thornley v. Clearview AI, Inc., 984 F.3d 1241 (7th Cir. 2021); Bryant v. Compass Grp. USA, Inc., 958 F.3d 617 (7th Cir. 2020). If the court disagrees, the case will not be dismissed, but will be remanded to state court. See Thornley v. Clearview AI, Inc., 984 F.3d 1241 (7th Cir. 2021); NCLC’s Fair Credit Reporting § 11.3.1.2. Then it will be up to the state court to determine standing in the state court.

A number of states have broader standing doctrines than the federal system, so it may be possible to litigate the case successfully there. See Thomas B. Bennett, The Paradox of Exclusive State-Court Jurisdiction over Federal Claims, 105 Minn. L. Rev. 1211, 1233 (2021) (map showing which states have adopted the Article III standing formulation of Lujan v. Defenders of Wildlife); Wyatt Sassman, A Survey of Constitutional Standing in State Courts, 8 Ky. J. Equine, Agric. & Nat. Res. L. 349 (2015) (state-by-state survey). However, we strongly caution that consumer attorneys should take care not to flood state courts with cases that appear to be making mountains out of molehills, which may prompt state courts to tighten their own standing requirements.

Occasionally a federal court, presented with a settlement to which the parties have agreed, has held sua sponte that it lacks subject matter jurisdiction over the case because the plaintiff lacks Article III standing. The court has then dismissed the case instead of entering the settlement order. To avert this, it is helpful to include a term in any settlement agreement in federal court, providing that if the federal court holds that it does not have Article III jurisdiction and cannot enter the settlement, the defendant agrees that the case will be refiled in a state court that has jurisdiction, and the defendant will join in a motion asking the state court to approve the settlement.

Whether Each Class Member Must Establish Standing Prior to Certification

In rejecting the standing of 6,332 class members as to one claim and all class members except Ramirez as to the others, the Court made it abundantly clear that, as several circuit courts had held, “[e]very class member must have Article III standing in order to recover individual damages.” However, the court specifically did not “address the distinct question whether every class member must demonstrate standing before a court certifies a class” (Ramirez, at *10, n.4). Most courts have held that such a showing is not necessary to grant certification because a class action is a representative juridical entity, and the standing inquiry (like the personal jurisdiction inquiry) keys on the class representative. See NCLC’s Consumer Class Actions § 10.3.3.2.1. This analysis should survive the Ramirez decision.

Framing a Federal Case After Ramirez

Ramirez highlights the importance of factual development and pleading. After the Supreme Court issued its decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), practitioners have had to plead far more in the way of facts than they formerly did under Rule 8’s notice pleading standard. Ramirez further heightens the importance of pleading the facts in detail.

An expert witness should be consulted before suit is filed if there is any possibility of putting a dollar value on a harm that appears at first blush to be intangible, and this dollar value should be pleaded if there is support for it. Many practitioners also make factual allegations about the importance of the claims and the rights protected. See Mannacio v. Alphacore Capital L.L.C., 2021 WL 1688355, at *3 (N.D. Cal. Apr. 29, 2021) (refusing to strike background information about role of TCPA protections from complaint).

The factual basis for Article III standing must also be documented at summary judgment and proven at trial. See NCLC’s Fair Debt Collection § 11.10.13. Proof of the existence, nature, and extent of the harm or risk of harm should be watertight. Detailed discovery and expert witnesses will often be necessary. For claims involving failure to provide disclosures or providing misleading ones, plaintiffs should allege that they suffered “downstream consequences” whenever possible, and plaintiffs should be prepared to document this at summary judgment and prove it at trial.

Case selection is equally important. Justice Thomas’s dissent, joined by Justices Sotomayor, Kagan, and Breyer, is well worth reading. Its unusually pointed tone suggests that these four Justices hold the strong view that the majority overreached in its interpretation of Article III. Consumer attorneys should avoid appealing decisions involving technical violations to the Supreme Court or the Circuits, but a strong case—one that, like Ramirez, presents a clear-cut, non-theoretical abuse—might conceivably win a fifth vote.

Additional resources for consumer attorneys litigating cases after Ramirez are available at this website.

Acknowledgments

Consumer attorneys John Albanese, Justin Holcombe, and Dick Rubin, and NCLC staff attorneys Charles Delbaum, Ariel Nelson, Stuart Rossman, Margot Saunders, Jon Sheldon, and Chi Chi Wu made invaluable contributions to this article.

Updated: Aug. 18, 2021.