The Aftermath Of 'TransUnion V. Ramirez': An Emerging Circuit Split

• Jurisdiction: United States,Federal
• Law Firm: Blank Rome LLP
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Financial Services, Trials & Appeals & Compensation, Libel & Defamation
• Author: Ms Diana Eng, Andrea M. Roberts and Alina Levi
• Published date: 13 January 2023

For years, federal courts relied on the U.S. Supreme Court's decision in Spokeo v. Robins, 578 U.S. 330 (2016), to ascertain whether a federal plaintiff demonstrated "concrete harm" such that his claims conferred Article III standing. However, the Spokeo standard was sufficiently vague, resulting in a circuit split regarding what constitutes "concrete harm." In June 2021, the Supreme Court addressed this split in its TransUnion v. Ramirez, 141 S. Ct. 2190 (2021) (TransUnion) decision by attempting to clarify the Spokeo standard for "concrete harm." In a 5-4 decision authored by Justice Brett Kavanaugh, the Supreme Court unequivocally rejected "the proposition that 'a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right,'" 141 S. Ct. at 2205 (quoting Spokeo, 578 U.S. at 341). The court emphasized that "an important difference exists between a plaintiff's statutory cause of action to sue a defendant over the defendant's violation of federal law, and a plaintiff's suffering concrete harm because of the defendant's violation of federal law." The latter is required to satisfy Article III standing to confer federal jurisdiction: "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 Kavanaugh succinctly stated: "No concrete harm, no standing."

TransUnion was viewed as a significant win for financial institutions and the defense bar thought it would reduce the number of federal lawsuits, particularly from plaintiffs who alleged purely statutory violations. However, despite the Supreme Court's clarification in TransUnion, courts are still reaching different conclusions on what constitutes concrete harm, and a new circuit split is already emerging, particularly with respect to intangible harms, such as economic or emotional distress, and informational harms.

For example, the U.S. Court of Appeals for the Second Circuit has acknowledged that while stress, anxiety and mental anguish are harms that may support Article III standing, a statutory violation with a "perfunctory allegation of emotional distress, especially one wholly incommensurate with the stimulant, is insufficient to plausibly allege constitutional standing." See Maddox v. Bank of New York Mellon, 19 F.4th 58, 63 (2d Cir. 2021). Post-TransUnion and Maddox, courts within the Second Circuit have consistently held that conclusory allegations of loss of credit, mental and emotional distress, confusion and injury to credit worthiness are insufficient to...