eBay, Facebook, and Google File Amicus Brief Asking the Supreme Court to Scale Back Consumer Privacy Claims

By: Laila Abdelaziz

A broad range of communications and technology companies, led by eBay, Facebook, and Google, have submitted an amicus brief asking the Supreme Court to narrowly interpret when individuals have standing to bring class action lawsuits against companies in federal courts.[1]  The case is TransUnion LLC v. Sergio L. Ramirez[2], and the Court’s ruling is expected to have a major impact on future class action lawsuits against internet-based companies that collect a wide range of consumer data.[3]  

This issue stems from a February 2011 incident in which a car dealership ran a credit check on Sergio Ramirez and his wife as they attempted to purchase a car.[4]  Relying on a TransUnion credit report, the dealership informed Ramirez it could not sell him a car because he was on a “terrorist list.”[5]  Federal law prohibits individuals who are on a Department of Treasury “Specially Designated Nationals” list (“SDN list”) from conducting business in the U.S. for national security reasons.[6]  Companies are required to ensure that their customers are not on the SDN list.[7]

Ramirez was shocked and embarrassed.[8]  He started researching how this could have happened and how to fix the false label on his credit report.[9]  Ramirez discovered that TransUnion, one of the three largest credit reporting agencies in the U.S., was providing a service to its clients claiming it could identify when an individual appeared on the SDN list.[10]  In reality, TransUnion deployed software that simply searched whether a consumer’s first and last names matched the name of someone on the SDN list – the software did nothing else to determine whether the match was real despite the technical capability to do so.[11]  Further, TransUnion continued to rely on this software even after the Third Circuit warned the company in 2010 that the practice violates the Fair Credit Reporting Act (“FCRA”).[12]  

Ramirez filed a class action lawsuit alleging TransUnion violated the FCRA, and the U.S. District Court for the Northern District of California certified a class of 8,185 individuals.[13]  The class alleged injuries and damages under the same FCRA violations, but none of the individual class members were required to prove their injury beyond the statutory violation.[14]  However, all class members, after requesting their credit report, received a letter from TransUnion alerting them of the terrorist label on their report without any instructions for initiating a dispute.[15]

The jury in the district court trial awarded Ramirez and the class over $60 million in damages, which included $984.22 in statutory damages and $6,353.08 in punitive damages for each class member.[16]  On appeal, the Ninth Circuit upheld the statutory damages, but the court reduced the total punitive damages from $52 million to $32 million.[17]  The Supreme Court agreed to review the case on December 16, 2020.[18]

Article III of the Constitution requires a person to meet a three-part standing test in order to file a suit in federal court.[19]  The litigant must assert that he or she has (1) suffered an injury in fact that is “concrete and particularized” and “actual or imminent,” (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.[20]  In Spokeo Inc. v. Robins, the Court held that, “Article III standing requires a concrete injury even in the context of a statutory violation.”[21]

Expanding on this, the Ninth Circuit held that every member of a class must assert standing at the final judgment stage to recover monetary damages.[22]  Reviewing whether all 8,185 individuals had properly asserted standing, the court held that TransUnion’s failure to provide accurate information implicated a concrete interest in an individual’s credit report and TransUnion credit reports are routinely made available to potential employers and creditors.[23]  The court reasoned that all class members were falsely labeled “potential terrorists, drug traffickers, and other threats to national security,” and that this is the kind of information that “risks triggering significant concern, confusion, and even potential contact with a federal intelligence agency.”[24]  Therefore, the court found that all class members had standing because they did suffer “a material risk of harm to their concrete interests.”[25]  

TransUnion argues that the Ninth Circuit was wrong to certify this class because the members could not allege a harm similar to Ramirez, who was denied a car loan as a result of the false labeling.[26]  

Communications and technology companies agree, claiming that federal court standing rules allow consumers to file class actions that contravene constitutional standing requirements: “[p]laintiffs’ ability to file these types of cases . . . without identifying anyone who has suffered any actual harm or imminent risk of harm has an extreme and chilling effect on technology companies . . . . ”[27]  The companies argue that federal courts continuously find standing absent an “actual, concreate injury,” and that these lawsuits amount to abuse because they permit “expansive class action lawsuits . . . without any requirement of a material risk of actual harm.”[28]  Instead, the companies urged the Supreme Court to issue a ruling in TransUnion that would require consumers to allege “a material, impending risk of concrete, actual harm.”[29]

This is no doubt a case to watch.  While technology and communication companies coalesce and urge the Court to narrowly interpret when consumers have standing to sue in federal courts, such a ruling would have a major impact on consumers who turn to the judicial system in light of data-related violations of privacy.  The Supreme Court is scheduled to hear the oral argument on Tuesday, March 30, 2021.[30]


[1] See Brief for eBay, Facebook, Google, et al. as Amici Curiae Supporting Petitioner, TransUnion v. Ramirez, No. 20-297, 2020 WL 7366280 (U.S. Dec. 16, 2020).

[2] See 951 F.3d 1008 (9th Cir.), cert. granted in part, 2020 WL 7366280 (U.S. Dec. 16, 2020) (No. 20-297).

[3] Christina Lamoureux, BREAKING: Supreme Court Grants Cert on Major FCRA Standing Issue, Nat’l L. Rev. (Dec. 16, 2020), https://www.natlawreview.com/article/breaking-supreme-court-grants-cert-major-fcra-standing-issue.

[4] See Ramirez v. TransUnion, LLC, 951 F.3d 1008, 1017 (9th Cir. 2020).

[5] See id.

[6]  See Exec. Ord. No. 13224, 66 Fed. Reg. 49,079 (Sept. 23, 2001) (authorizing financial sanctions on individuals who the federal government has identified as involved with terrorism); see also U.S. Dep’t of Treasury, Specially Designated Nationals And Blocked Persons List (SDN) Human Readable Lists, https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists (last visited Feb. 19, 2021). 

[7] See 66 Fed. Reg. 49,079; see also Christopher A. Myers, U.S. Businesses Must Meet New Requirements Under Federal Law, Holland & Knight (June 20, 2003), https://www.hklaw.com/en/insights/publications/2003/06/us-businesses-must-meet-new-requirements-under-fed.

[8] Ramirez, 951 F.3d at 1018–19 (noting that Ramirez also canceled an international family vacation due to TransUnion’s false labeling).

[9] Id.

[10] Id. at 1016. 

[11] Id.

[12] See id. at 1016 (citing Cortez v. Trans Union, LLC, 617 F.3d 688 (3rd Cir. 2010)); see also 15 U.S.C. § 1681(b) (2018) (requiring consumer reporting agencies to adopt “reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information.”).

[13] See Ramirez, 951 F.3d at 1016­–17.

[14] See id.

[15] Id. at 1019.

[16] See id. at 1017.

[17] See id. at 1037-38.

[18] See Ramirez v. TransUnion LLC, 951 F.3d 1008 (9th Cir.), cert. granted in part, 2020 WL 7366280 (U.S. Dec. 16, 2020) (No. 20-297).

[19] See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

[20] See id. at 560–61.

[21] See 136 S. Ct. 1540, 1543 (2016).

[22] Ramirez, 951 F.3d at 1023. 

[23] See id. at 1023–24.

[24] See id.

[25] See id. at 1027.

[26] See Petition for Writ of Certiorari, TransUnion v. Ramirez, No. 20-297, 2020 WL 7366280 (U.S. Dec. 16, 2020).

[27] See Brief for eBay, Facebook, Google, et al. as Amici Curiae Supporting Petitioner, TransUnion v. Ramirez, No. 20-297, 2020 WL 7366280 (U.S. Dec. 16, 2020).

[28] See id.

[29] See id.

[30] SCOTUSblog: TransUnion LLC v. Ramirezhttps://www.scotusblog.com/case-files/cases/transunion-llc-v-ramirez/ (last visited Feb. 19, 2021).

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