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Ramirez v. TransUnion - Blow to Consumers, but SCOTUS fails to bar FCRA claims based on emotional harm without publication

Posted by Brett D. Sherman | Jun 25, 2021 | 0 Comments

There is a lot of talk today about the United States Supreme Court's 5-4 decision concerning the Fair Credit Reporting Act (FCRA) in TRANSUNION LLC v. RAMIREZ, and rightfully so. For those who wish to read Justice Kavanaugh's opinion, it is linked here.  We will refrain from posting a detailed analysis of the opinion. The opinion is certainly a blow to consumers and such analyses are sure to be available far and wide.

The point of this post by Sherman & Ticchio is to assure that a very important takeaway from the opinion is not overlooked.  Specifically, we refer to footnote 7, which explicitly leaves open the theory that errors in credit files, absent publication to a third party, may cause concrete injury sufficient to confer Article III standing for some FCRA violations:

"[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. We take no position on whether or how such an emotional or psychological harm could suffice for Article III purposes—for example, by analogy to the tort of intentional infliction of emotional distress."

The footnote does not help those class members that the Supreme Court held did not have standing to assert claims, but it could be significant for individual consumers who suffer legitimate emotional distress from having credit report errors even where there is no publication of inaccurate information via the issuance of a consumer report to a third party.  Stay tuned... 

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