Seyfarth Synopsis: For the final blog in this series regarding the legacy of TransUnion LLC v. Ramirez (“TransUnion”), the Workplace Class Action blog closes its survey of federal Circuit Courts with key rulings from the Ninth, Tenth, Eleventh, and D.C. Circuits.
TransUnion at a Glance
Among other things as we have discussed, the U.S. Supreme Court held in TransUnion that every class member must have Article III standing in order to recover individual damages, as well as that an informational injury that causes no adverse effects cannot satisfy Article III.
The Ninth Circuit’s Analysis
Van v. LLR, Inc.
In Van, the plaintiff filed a putative class action on behalf of more than 10,000 purchasers against a marketing clothing retailer for allegedly charging sales tax based on the location of the retailer rather than the location of the purchaser, leading to the overpayment of sales taxes. After the U.S. District Court for the District of Alaska certified the class, the defendant appealed on the grounds that the defendant had provided a discount to purchasers in an amount equal to or greater than the amount of the allegedly improperly assessed sales tax, such that those customers did not suffer any injury from the alleged sales tax practice.
The Court’s Decision
The Ninth Circuit reversed in light of the individualized issue that the defendant invoked—at least some class members lacked meritorious claims because they had received a discount to offset the allegedly improperly assessed sales tax. While the district court dismissed the evidence as de minimis, the Ninth Circuit noted that the plaintiff still had to show that a class-member-by-class-member assessment of the individualized issue would be unnecessary or workable. The Ninth Circuit also noted that since TransUnion expressly held open the question of “whether every class member must demonstrate standing before a court certifies a class,” the district court might need to address this issue on remand.
That epilogue is now hot off the press. Just last month, the district court ruled that the individualized question of standing predominates over purportedly common questions of law and fact, rendering class certification impracticable. Under TransUnion, the court reasoned, the putative class members who paid an improper sales tax, but received a discount in an amount equal to or greater than the tax, did not suffer any injury in fact.
The Tenth Circuit’s Analysis
Laufer v. Looper
As Seyfarth’s ADA Title III blog reported in greater detail here, in Laufer, the plaintiff sued motel owners alleging that their online reservation systems failed to provide necessary information about accessibility in violation of the ADA. The plaintiff alleged that she intended to visit the defendants’ online reservation system in the near future but not actually book a room at the motel. The U.S. District Court for the District of Colorado dismissed the complaint for lack of Article III standing.
The Court’s Decision
On appeal, the Tenth Circuit concluded that the plaintiff had not sufficiently alleged an injury in fact. Citing TransUnion, the court noted the plaintiff failed to allege that she had any interest in using the information obtained from the online reservation system beyond bringing the lawsuit. She had no plans to visit the city where the motel was located and never attempted to book a room there. Thus, the court held she had not suffered an informational injury sufficient to establish standing.
The Eleventh Circuit’s Analysis
Green-Cooper v. Brinker International, Inc.
In Green-Cooper, the plaintiffs filed a putative class action against a restaurant owner in the U.S. District Court for the Middle District of Florida after learning that their credit card information and personally-identifiable information had been compromised in a data breach. The defendant appealed following certification of the plaintiffs’ proposed classes.
The Court’s Decision
The U.S. Court of Appeals for the Eleventh Circuit began its class certification analysis with TransUnion’s reminders that “every class member must have Article III standing to recover individual damages” and those who do not have standing must eventually be removed from the class. Further, if a class member’s standing hinged on individualized issues, those issues may predominate over common questions, and class certification may be inappropriate. In an effort to avoid that problem, the district court had defined the classes to include only individuals who “had their data accessed by cybercriminals” during the defined period. The Eleventh Circuit, however, noted that merely having data “accessed” by a cybercriminal is likely insufficient to establish standing. Thus, the classes as defined could include individuals without standing. Accordingly, the Eleventh Circuit remanded the case so that the district court could either redefine the classes or analyze whether the classes as defined satisfied the predominance standard under Rule 23(b)(3). Several weeks ago, however, the defendant went up the chain, filing a petition for certiorari seeking a holding from the U.S. Supreme Court that no class could be certified in the case given individualized issues of damages and injury. Further developments certainly will be worth watching.
The D.C. Circuit’s Analysis
Saline Parents v. Garland
In Saline Parents, the plaintiffs were an unincorporated association and six individuals who filed suit in the U.S. District Court for the District of Columbia in response to various actions taken by the federal government to address a spike in harassment and threats of violence against school administrators, board members, teachers, and staff. According to the plaintiffs, a memorandum by the attorney general and actions taken in response to that memorandum reflected unlawful attempts “to use federal law enforcement resources to silence parents and other private citizens” who object to certain school policies. After the case was dismissed for lack of standing, the plaintiffs appealed.
The Court’s Decision
The U.S. Court of Appeals for the District of Columbia Circuit affirmed, finding that the plaintiffs failed to establish an “injury in fact.” Instead of providing evidence of a “regulatory, proscriptive, or compulsory” exercise of government power, the plaintiffs claimed only that their activities were being “chilled by the mere existence of governmental investigation.” In other words, the plaintiffs could not illustrate any concrete threats of enforcement from the government or that the government “focused on them or their peaceful activities,” nor could the plaintiffs offer “anything to show that the Government labeled them in any way, let alone impugned their reputations.” Thus, the court held that the plaintiffs could not establish a concrete injury sufficient to support standing.
Implications For Employers
Employers who find themselves defending against complex litigation in these jurisdictions (or elsewhere) can utilize each of these rulings respectively and should be aware of them accordingly. Van and Green-Cooper, however, are especially notable for demonstrating how Article III standing principles as the U.S. Supreme Court articulated in TransUnion can impact the Rule 23 analysis. Hence, employers should take note of these cases in particular in crafting their strategies to narrow proposed classes or, better yet, defeat class certification altogether.