TransUnion LLC v. Ramirez , 141 S. Ct. 2190 ( 2021 )

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TRANSUNION LLC v. RAMIREZ
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 20–297. Argued March 30, 2021—Decided June 25, 2021
The Fair Credit Reporting Act regulates the consumer reporting agencies
that compile and disseminate personal information about consumers.
15 U. S. C. §1681 et seq. The Act also creates a cause of action for con-
sumers to sue and recover damages for certain violations. §1681n(a).
TransUnion is a credit reporting agency that compiles personal and
financial information about individual consumers to create consumer
reports and then sells those reports for use by entities that request
information about the creditworthiness of individual consumers. Be-
ginning in 2002, TransUnion introduced an add-on product called
OFAC Name Screen Alert. When a business opted into the Name
Screen service, TransUnion would conduct its ordinary credit check of
the consumer, and it would also use third-party software to compare
the consumer’s name against a list maintained by the U. S. Treasury
Department’s Office of Foreign Assets Control (OFAC) of terrorists,
drug traffickers, and other serious criminals. If the consumer’s first
and last name matched the first and last name of an individual on
OFAC’s list, then TransUnion would place an alert on the credit report
indicating that the consumer’s name was a “potential match” to a name
on the OFAC list. At that time, TransUnion did not compare any data
other than first and last names.
A class of 8,185 individuals with OFAC alerts in their credit files
sued TransUnion under the Fair Credit Reporting Act for failing to use
reasonable procedures to ensure the accuracy of their credit files. The
plaintiffs also complained about formatting defects in certain mailings
sent to them by TransUnion. The parties stipulated prior to trial that
only 1,853 class members (including the named plaintiff Sergio
Ramirez) had their misleading credit reports containing OFAC alerts
provided to third parties during the 7-month period specified in the
2 TRANSUNION LLC v. RAMIREZ
Syllabus
class definition. The internal credit files of the other 6,332 class mem-
bers were not provided to third parties during the relevant time period.
The District Court ruled that all class members had Article III stand-
ing on each of the three statutory claims. The jury returned a verdict
for the plaintiffs and awarded each class member statutory damages
and punitive damages. A divided panel of the Ninth Circuit affirmed
in relevant part.
Held: Only plaintiffs concretely harmed by a defendant’s statutory viola-
tion have Article III standing to seek damages against that private de-
fendant in federal court. Pp. 6–27.
(a) Article III confines the federal judicial power to the resolution of
“Cases” and “Controversies” in which a plaintiff has a “personal stake.”
Raines v. Byrd, 521 U. S. 811, 819–820. To have Article III standing
to sue in federal court, a plaintiff must show, among other things, that
the plaintiff suffered concrete injury in fact. Lujan v. Defenders of
Wildlife, 504 U. S. 555, 560–561. Central to assessing concreteness is
whether the asserted harm has a “close relationship” to a harm “tradi-
tionally” recognized as providing a basis for a lawsuit in American
courts. Spokeo, Inc. v. Robins, 578 U. S. 330, 340. That inquiry asks
whether plaintiffs have identified a close historical or common-law an-
alogue for their asserted injury. Physical or monetary harms readily
qualify as concrete injuries under Article III, and various intangible
harms—like reputational harms—can also be concrete. Ibid.“Article III standing requires a concrete injury even in the context
of a statutory violation.” Ibid. The Court has 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.” Id., at 341. An
injury in law is not an injury in fact. Pp. 6–14.
(b) The Court applies the fundamental standing requirement of con-
crete harm to this case. Pp. 15–27.
(1) In their reasonable-procedures claim, all 8,185 class members
maintain that TransUnion did not do enough to ensure that mislead-
ing OFAC alerts labeling them as potential terrorists were not in-
cluded in their credit files. See §1681e(b). TransUnion provided third
parties with credit reports containing OFAC alerts for 1,853 class
members (including the named plaintiff Ramirez). Those 1,853 class
members therefore suffered a harm with a “close relationship” to the
harm associated with the tort of defamation. Spokeo, 578 U. S., at 341.
Under longstanding American law, a person is injured when a defam-
atory statement “that would subject him to hatred, contempt, or ridi-
cule” is published to a third party. Milkovich v. Lorain Journal Co.,
497 U. S. 1, 13. The Court has no trouble concluding that the 1,853
class members suffered a concrete harm that qualifies as an injury in
Cite as: 594 U. S. ____ (2021) 3
Syllabus
fact.
The credit files of the remaining 6,332 class members also contained
misleading OFAC alerts, but the parties stipulated that TransUnion
did not provide those plaintiffs’ credit information to any potential
creditors during the designated class period. The mere existence of
inaccurate information, absent dissemination, traditionally has not
provided the basis for a lawsuit in American courts. The plaintiffs can-
not demonstrate that the misleading information in the internal credit
files itself constitutes a concrete harm.
The plaintiffs advance a separate argument based on their exposure
to the risk that the misleading information would be disseminated in
the future to third parties. The Court has recognized that material
risk of future harm can satisfy the concrete-harm requirement in the
context of a claim for injunctive relief to prevent the harm from occur-
ring, at least so long as the risk of harm is sufficiently imminent and
substantial. See Spokeo, 578 U. S., at 341–342 (citing Clapper v. Am-
nesty Int’l USA, 568 U. S. 398). But TransUnion advances a persua-
sive argument that the mere risk of future harm, without more, cannot
qualify as a concrete harm in a suit for damages. The 6,332 plaintiffs
did not demonstrate that the risk of future harm materialized. Nor
did those plaintiffs present evidence that the class members were in-
dependently harmed by their exposure to the risk itself. The risk of
future harm cannot supply the basis for their standing. Pp. 16–24.
(2) In two other claims, all 8,185 class members complained about
formatting defects in certain mailings sent to them by TransUnion.
But the plaintiffs have not demonstrated that the format of TransUn-
ion’s mailings caused them a harm with a close relationship to a harm
traditionally recognized as providing a basis for a lawsuit in American
courts. See Spokeo, 578 U. S., at 341.
The plaintiffs argue that TransUnion’s formatting violations created
a risk of future harm, because consumers who received the information
in the dual-mailing format were at risk of not learning about the OFAC
alert in their credit files and thus not asking for corrections. The risk
of future harm on its own is not enough to support Article III standing
for their damages claim. In any event, the plaintiffs here made no
effort to explain how the formatting error prevented them asking for
corrections to prevent future harm.
The United States as amicus curiae asserts that the plaintiffs suf-
fered a concrete “informational injury” from TransUnion’s formatting
violations. See Federal Election Comm’n v. Akins, 524 U. S. 11; Public
Citizen v. Department of Justice, 491 U. S. 440. But the plaintiffs here
did not allege that they failed to receive any required information.
They argued only that they received the information in the wrong for-
4 TRANSUNION LLC v. RAMIREZ
Syllabus
mat. Moreover, an asserted informational injury that causes no ad-
verse effects does not satisfy Article III. Pp. 24–27.
951 F. 3d 1008, reversed and remanded.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and ALITO, GORSUCH, and BARRETT, JJ., joined. THOMAS, J., filed a
dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ.,
joined. KAGAN, J., filed a dissenting opinion, in which BREYER and SO-
TOMAYOR, JJ., joined.
Cite as: 594 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–297
_________________
TRANSUNION LLC, PETITIONER v. SERGIO L.
RAMIREZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 25, 2021]
JUSTICE KAVANAUGH delivered the opinion of the Court.
To have Article III standing to sue in federal court, plain-
tiffs must demonstrate, among other things, that they suf-
fered a concrete harm. No concrete harm, no standing.
Central to assessing concreteness is whether the asserted
harm has a “close relationship” to a harm traditionally rec-
ognized as providing a basis for a lawsuit in American
courts—such as physical harm, monetary harm, or various
intangible harms including (as relevant here) reputational
harm. Spokeo, Inc. v. Robins, 578 U. S. 330, 340–341
(2016).
In this case, a class of 8,185 individuals sued TransUn-
ion, a credit reporting agency, in federal court under the
Fair Credit Reporting Act. The plaintiffs claimed that
TransUnion failed to use reasonable procedures to ensure
the accuracy of their credit files, as maintained internally
by TransUnion. For 1,853 of the class members, TransUn-
ion provided misleading credit reports to third-party busi-
nesses. We conclude that those 1,853 class members have
demonstrated concrete reputational harm and thus have
Article III standing to sue on the reasonable-procedures
2 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
claim. The internal credit files of the other 6,332 class
members were not provided to third-party businesses dur-
ing the relevant time period. We conclude that those 6,332
class members have not demonstrated concrete harm and
thus lack Article III standing to sue on the reasonable-pro-
cedures claim.
In two other claims, all 8,185 class members complained
about formatting defects in certain mailings sent to them
by TransUnion. But the class members other than the
named plaintiff Sergio Ramirez have not demonstrated that
the alleged formatting errors caused them any concrete
harm. Therefore, except for Ramirez, the class members do
not have standing as to those two claims.
Over Judge McKeown’s dissent, the U. S. Court of Ap-
peals for the Ninth Circuit ruled that all 8,185 class mem-
bers have standing as to all three claims. The Court of Ap-
peals approved a class damages award of about $40 million.
In light of our conclusion that (i) only 1,853 class members
have standing for the reasonable-procedures claim and
(ii) only Ramirez himself has standing for the two format-
ting claims relating to the mailings, we reverse the judg-
ment of the Ninth Circuit and remand the case for further
proceedings consistent with this opinion.
I
In 1970, Congress passed and President Nixon signed the
Fair Credit Reporting Act. 84 Stat. 1127, as amended, 15
U. S. C. §1681 et seq. The Act seeks to promote “fair and
accurate credit reporting” and to protect consumer privacy.
§1681(a). To achieve those goals, the Act regulates the con-
sumer reporting agencies that compile and disseminate
personal information about consumers.
The Act “imposes a host of requirements concerning the
creation and use of consumer reports.” Spokeo, Inc. v. Rob-
ins, 578 U. S. 330, 335 (2016). Three of the Act’s require-
Cite as: 594 U. S. ____ (2021) 3
Opinion of the Court
ments are relevant to this case. First, the Act requires con-
sumer reporting agencies to “follow reasonable procedures
to assure maximum possible accuracy” in consumer reports.
§1681e(b). Second, the Act provides that consumer report-
ing agencies must, upon request, disclose to the consumer
“[a]ll information in the consumer’s file at the time of the
request.” §1681g(a)(1). Third, the Act compels consumer
reporting agencies to “provide to a consumer, with each
written disclosure by the agency to the consumer,” a “sum-
mary of rights” prepared by the Consumer Financial Pro-
tection Bureau. §1681g(c)(2).
The Act creates a cause of action for consumers to sue and
recover damages for certain violations. The Act provides:
“Any person who willfully fails to comply with any require-
ment imposed under this subchapter with respect to any
consumer is liable to that consumer” for actual damages or
for statutory damages not less than $100 and not more than
$1,000, as well as for punitive damages and attorney’s fees.
§1681n(a).
TransUnion is one of the “Big Three” credit reporting
agencies, along with Equifax and Experian. As a credit re-
porting agency, TransUnion compiles personal and finan-
cial information about individual consumers to create con-
sumer reports. TransUnion then sells those consumer
reports for use by entities such as banks, landlords, and car
dealerships that request information about the creditwor-
thiness of individual consumers.
Beginning in 2002, TransUnion introduced an add-on
product called OFAC Name Screen Alert. OFAC is the U. S.
Treasury Department’s Office of Foreign Assets Control.
OFAC maintains a list of “specially designated nationals”
who threaten America’s national security. Individuals on
the OFAC list are terrorists, drug traffickers, or other seri-
ous criminals. It is generally unlawful to transact business
with any person on the list. 31 CFR pt. 501, App. A (2020).
TransUnion created the OFAC Name Screen Alert to help
4 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
businesses avoid transacting with individuals on OFAC’s
list.
When this litigation arose, Name Screen worked in the
following way: When a business opted into the Name Screen
service, TransUnion would conduct its ordinary credit
check of the consumer, and it would also use third-party
software to compare the consumer’s name against the
OFAC list. If the consumer’s first and last name matched
the first and last name of an individual on OFAC’s list, then
TransUnion would place an alert on the credit report indi-
cating that the consumer’s name was a “potential match” to
a name on the OFAC list. TransUnion did not compare any
data other than first and last names. Unsurprisingly,
TransUnion’s Name Screen product generated many false
positives. Thousands of law-abiding Americans happen to
share a first and last name with one of the terrorists, drug
traffickers, or serious criminals on OFAC’s list of specially
designated nationals.
Sergio Ramirez learned the hard way that he is one such
individual. On February 27, 2011, Ramirez visited a Nis-
san dealership in Dublin, California, seeking to buy a Nis-
san Maxima. Ramirez was accompanied by his wife and his
father-in-law. After Ramirez and his wife selected a color
and negotiated a price, the dealership ran a credit check on
both Ramirez and his wife. Ramirez’s credit report, pro-
duced by TransUnion, contained the following alert:
“***OFAC ADVISOR ALERT - INPUT NAME MATCHES
NAME ON THE OFAC DATABASE.” App. 84. A Nissan
salesman told Ramirez that Nissan would not sell the car
to him because his name was on a “ ‘terrorist list.’ ” Id., at
333. Ramirez’s wife had to purchase the car in her own
name.
The next day, Ramirez called TransUnion and requested
a copy of his credit file. TransUnion sent Ramirez a mailing
that same day that included his credit file and the statuto-
rily required summary of rights prepared by the CFPB. The
Cite as: 594 U. S. ____ (2021) 5
Opinion of the Court
mailing did not mention the OFAC alert in Ramirez’s file.
The following day, TransUnion sent Ramirez a second
mailing—a letter alerting him that his name was consid-
ered a potential match to names on the OFAC list. The sec-
ond mailing did not include an additional copy of the sum-
mary of rights. Concerned about the mailings, Ramirez
consulted a lawyer and ultimately canceled a planned trip
to Mexico. TransUnion eventually removed the OFAC alert
from Ramirez’s file.
In February 2012, Ramirez sued TransUnion and alleged
three violations of the Fair Credit Reporting Act. First, he
alleged that TransUnion, by using the Name Screen prod-
uct, failed to follow reasonable procedures to ensure the ac-
curacy of information in his credit file. See §1681e(b). Sec-
ond, he claimed that TransUnion failed to provide him with
all the information in his credit file upon his request. In
particular, TransUnion’s first mailing did not include the
fact that Ramirez’s name was a potential match for a name
on the OFAC list. See §1681g(a)(1). Third, Ramirez as-
serted that TransUnion violated its obligation to provide
him with a summary of his rights “with each written disclo-
sure,” because TransUnion’s second mailing did not contain
a summary of Ramirez’s rights. §1681g(c)(2). Ramirez re-
quested statutory and punitive damages.
Ramirez also sought to certify a class of all people in the
United States to whom TransUnion sent a mailing during
the period from January 1, 2011, to July 26, 2011, that was
similar in form to the second mailing that Ramirez re-
ceived. TransUnion opposed certification. The U. S. Dis-
trict Court for the Northern District of California rejected
TransUnion’s argument and certified the class. 301
F. R. D. 408 (2014).
Before trial, the parties stipulated that the class con-
tained 8,185 members, including Ramirez. The parties also
stipulated that only 1,853 members of the class (including
Ramirez) had their credit reports disseminated by
6 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
TransUnion to potential creditors during the period from
January 1, 2011, to July 26, 2011. The District Court ruled
that all 8,185 class members had Article III standing. 2016
WL 6070490, *5 (Oct. 17, 2016).
At trial, Ramirez testified about his experience at the
Nissan dealership. But Ramirez did not present evidence
about the experiences of other members of the class.
After six days of trial, the jury returned a verdict for the
plaintiffs. The jury awarded each class member $984.22 in
statutory damages and $6,353.08 in punitive damages for a
total award of more than $60 million. The District Court
rejected all of TransUnion’s post-trial motions.
The U. S. Court of Appeals for the Ninth Circuit affirmed
in relevant part. 951 F. 3d 1008 (2020). The court held that
all members of the class had Article III standing to recover
damages for all three claims. The court also concluded that
Ramirez’s claims were typical of the class’s claims for pur-
poses of Rule 23 of the Federal Rules of Civil Procedure.
Finally, the court reduced the punitive damages award to
$3,936.88 per class member, thus reducing the total award
to about $40 million.
Judge McKeown dissented in relevant part. As to the
reasonable-procedures claim, she concluded that only the
1,853 class members whose reports were actually dissemi-
nated by TransUnion to third parties had Article III stand-
ing to recover damages. In her view, the remaining 6,332
class members did not suffer a concrete injury sufficient for
standing. As to the two claims related to the mailings,
Judge McKeown would have held that none of the 8,185
class members other than the named plaintiff Ramirez had
standing as to those claims.
We granted certiorari. 592 U. S. ___ (2020).
II
The question in this case is whether the 8,185 class mem-
bers have Article III standing as to their three claims. In Part
Cite as: 594 U. S. ____ (2021) 7
Opinion of the Court
II, we summarize the requirements of Article III standing—
in particular, the requirement that plaintiffs demonstrate a
“concrete harm.” In Part III, we then apply the concrete-harm
requirement to the plaintiffs’ lawsuit against TransUnion.
A
The “law of Art. III standing is built on a single basic
idea—the idea of separation of powers.” Raines v. Byrd, 521
U. S. 811, 820 (1997) (internal quotation marks omitted).
Separation of powers “was not simply an abstract generali-
zation in the minds of the Framers: it was woven into the
document that they drafted in Philadelphia in the summer
of 1787.” INS v. Chadha, 462 U. S. 919, 946 (1983) (inter-
nal quotation marks omitted).
Therefore, we start with the text of the Constitution. Ar-
ticle III confines the federal judicial power to the resolution
of “Cases” and “Controversies.” For there to be a case or
controversy under Article III, the plaintiff must have a
“ ‘personal stake’ ” in the case—in other words, standing.
Raines, 521 U. S., at 819. To demonstrate their personal
stake, plaintiffs must be able to sufficiently answer the
question: “ ‘What’s it to you?’ ” Scalia, The Doctrine of
Standing as an Essential Element of the Separation of Pow-
ers, 17 Suffolk U. L. Rev. 881, 882 (1983).
To answer that question in a way sufficient to establish
standing, a plaintiff must show (i) that he suffered an injury
in fact that is concrete, particularized, and actual or immi-
nent; (ii) that the injury was likely caused by the defendant;
and (iii) that the injury would likely be redressed by judicial
relief. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–
561 (1992). If “the plaintiff does not claim to have suffered
an injury that the defendant caused and the court can rem-
edy, there is no case or controversy for the federal court to
resolve.” Casillas v. Madison Avenue Assocs., Inc., 926
F. 3d 329, 333 (CA7 2019) (Barrett, J.).
8 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
Requiring a plaintiff to demonstrate a concrete and par-
ticularized injury caused by the defendant and redressable
by the court ensures that federal courts decide only “the
rights of individuals,” Marbury v. Madison, 1 Cranch 137,
170 (1803), and that federal courts exercise “their proper
function in a limited and separated government,” Roberts,
Article III Limits on Statutory Standing, 42 Duke L. J.
1219, 1224 (1993). Under Article III, federal courts do not
adjudicate hypothetical or abstract disputes. Federal
courts do not possess a roving commission to publicly opine
on every legal question. Federal courts do not exercise gen-
eral legal oversight of the Legislative and Executive
Branches, or of private entities. And federal courts do not
issue advisory opinions. As Madison explained in Philadel-
phia, federal courts instead decide only matters “of a Judi-
ciary Nature.” 2 Records of the Federal Convention of 1787,
p. 430 (M. Farrand ed. 1966).
In sum, under Article III, a federal court may resolve only
“a real controversy with real impact on real persons.”
American Legion v. American Humanist Assn., 588 U. S.
___, ___ (2019) (GORSUCH, J., concurring in judgment) (slip
op., at 10).
B
The question in this case focuses on the Article III re-
quirement that the plaintiff ’s injury in fact be “concrete”—
that is, “real, and not abstract.” Spokeo, Inc. v. Robins, 578
U. S. 330, 340 (2016) (internal quotation marks omitted);
see Susan B. Anthony List v. Driehaus, 573 U. S. 149, 158
(2014); Summers v. Earth Island Institute, 555 U. S. 488,
493 (2009); Lujan, 504 U. S., at 560; Schlesinger v. Reserv-
ists Comm. to Stop the War, 418 U. S. 208, 220–221 (1974).
What makes a harm concrete for purposes of Article III?
As a general matter, the Court has explained that “history
and tradition offer a meaningful guide to the types of cases
that Article III empowers federal courts to consider.”
Cite as: 594 U. S. ____ (2021) 9
Opinion of the Court
Sprint Communications Co. v. APCC Services, Inc., 554
U. S. 269, 274 (2008); see also Steel Co. v. Citizens for Better
Environment, 523 U. S. 83, 102 (1998). And with respect to
the concrete-harm requirement in particular, this Court’s
opinion in Spokeo v. Robins indicated that courts should as-
sess whether the alleged injury to the plaintiff has a “close
relationship” to a harm “traditionally” recognized as provid-
ing a basis for a lawsuit in American courts. 578 U. S., at
341. That inquiry asks whether plaintiffs have identified a
close historical or common-law analogue for their asserted
injury. Spokeo does not require an exact duplicate in Amer-
ican history and tradition. But Spokeo is not an open-ended
invitation for federal courts to loosen Article III based on
contemporary, evolving beliefs about what kinds of suits
should be heard in federal courts.
As Spokeo explained, certain harms readily qualify as
concrete injuries under Article III. The most obvious are
traditional tangible harms, such as physical harms and
monetary harms. If a defendant has caused physical or
monetary injury to the plaintiff, the plaintiff has suffered a
concrete injury in fact under Article III.
Various intangible harms can also be concrete. Chief
among them are injuries with a close relationship to harms
traditionally recognized as providing a basis for lawsuits in
American courts. Id., at 340–341. Those include, for exam-
ple, reputational harms, disclosure of private information,
and intrusion upon seclusion. See, e.g., Meese v. Keene, 481
U. S. 465, 473 (1987) (reputational harms); Davis v. Federal
Election Comm’n, 554 U. S. 724, 733 (2008) (disclosure of
private information); see also Gadelhak v. AT&T Services,
Inc., 950 F. 3d 458, 462 (CA7 2020) (Barrett, J.) (intrusion
upon seclusion). And those traditional harms may also in-
clude harms specified by the Constitution itself. See, e.g.,
Spokeo, 578 U. S., at 340 (citing Pleasant Grove City v.
Summum, 555 U. S. 460 (2009) (abridgment of free speech),
and Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
10 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
U. S. 520 (1993) (infringement of free exercise)).
In determining whether a harm is sufficiently concrete to
qualify as an injury in fact, the Court in Spokeo said that
Congress’s views may be “instructive.” 578 U. S., at 341.
Courts must afford due respect to Congress’s decision to im-
pose a statutory prohibition or obligation on a defendant,
and to grant a plaintiff a cause of action to sue over the de-
fendant’s violation of that statutory prohibition or obliga-
tion. See id., at 340–341. In that way, Congress may “ele-
vate to the status of legally cognizable injuries concrete,
de facto injuries that were previously inadequate in law.”
Id., at 341 (alterations and internal quotation marks omit-
ted); see Lujan, 504 U. S., at 562–563, 578; cf., e.g., Allen v.
Wright, 468 U. S. 737, 757, n. 22 (1984) (discriminatory
treatment). But even though “Congress may ‘elevate’
harms that ‘exist’ in the real world before Congress recog-
nized them to actionable legal status, it may not simply en-
act an injury into existence, using its lawmaking power to
transform something that is not remotely harmful into
something that is.” Hagy v. Demers & Adams, 882 F. 3d
616, 622 (CA6 2018) (Sutton, J.) (citing Spokeo, 578 U. S.,
at 341).
Importantly, this Court has rejected the proposition that
“a plaintiff automatically satisfies the injury-in-fact re-
quirement whenever a statute grants a person a statutory
right and purports to authorize that person to sue to vindi-
cate that right.” Spokeo, 578 U. S., at 341. As the Court
emphasized in Spokeo, “Article III standing requires a con-
crete injury even in the context of a statutory violation.”
Ibid.
Congress’s creation of a statutory prohibition or obliga-
tion 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 any more
than, for example, Congress’s enactment of a law regulating
Cite as: 594 U. S. ____ (2021) 11
Opinion of the Court
speech relieves courts of their responsibility to inde-
pendently decide whether the law violates the First Amend-
ment. Cf. United States v. Eichman, 496 U. S. 310, 317–
318 (1990). As Judge Katsas has rightly stated, “we cannot
treat an injury as ‘concrete’ for Article III purposes based
only on Congress’s say-so.” Trichell v. Midland Credit
Mgmt., Inc., 964 F. 3d 990, 999, n. 2 (CA11 2020) (sitting by
designation); see Marbury, 1 Cranch, at 178; see also
Raines, 521 U. S., at 820, n. 3; Simon v. Eastern Ky. Welfare
Rights Organization, 426 U. S. 26, 41, n. 22 (1976); Muskrat
v. United States, 219 U. S. 346, 361–362 (1911).
For standing purposes, therefore, 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 en-
act 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 de-
fendant’s statutory violation may sue that private defend-
ant over that violation in federal court. As then-Judge Bar-
rett succinctly summarized, “Article III grants federal
courts the power to redress harms that defendants cause
plaintiffs, not a freewheeling power to hold defendants ac-
countable for legal infractions.” Casillas, 926 F. 3d, at 332.
To appreciate how the Article III “concrete harm” princi-
ple operates in practice, consider two different hypothetical
plaintiffs. Suppose first that a Maine citizen’s land is pol-
luted by a nearby factory. She sues the company, alleging
that it violated a federal environmental law and damaged
her property. Suppose also that a second plaintiff in Hawaii
files a federal lawsuit alleging that the same company in
Maine violated that same environmental law by polluting
land in Maine. The violation did not personally harm the
12 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
plaintiff in Hawaii.
Even if Congress affords both hypothetical plaintiffs a
cause of action (with statutory damages available) to sue
over the defendant’s legal violation, Article III standing
doctrine sharply distinguishes between those two scenar-
ios. The first lawsuit may of course proceed in federal court
because the plaintiff has suffered concrete harm to her
property. But the second lawsuit may not proceed because
that plaintiff has not suffered any physical, monetary, or
cognizable intangible harm traditionally recognized as
providing a basis for a lawsuit in American courts. An un-
injured plaintiff who sues in those circumstances is, by def-
inition, not seeking to remedy any harm to herself but in-
stead is merely seeking to ensure a defendant’s “compliance
with regulatory law” (and, of course, to obtain some money
via the statutory damages). Spokeo, 578 U. S., at 345
(THOMAS, J., concurring) (internal quotation marks omit-
ted); see Steel Co., 523 U. S., at 106–107. Those are not
grounds for Article III standing.1
——————
1 The lead dissent notes that the terminology of injury in fact became
prevalent only in the latter half of the 20th century. That is unsurprising
because until the 20th century, Congress did not often afford federal “cit-
izen suit”-style causes of action to private plaintiffs who did not suffer
concrete harms. For example, until the 20th century, Congress generally
did not create “citizen suit” causes of action for private plaintiffs to sue
the Government. See Magill, Standing for the Public, 95 Va. L. Rev.
1131, 1186–1187 (2009). Moreover, until Abbott Laboratories v. Gard-
ner, 387 U. S. 136 (1967), a plaintiff often could not bring a pre-enforce-
ment suit against a Government agency or official under the Adminis-
trative Procedure Act arguing that an agency rule was unlawful; instead,
a party could raise such an argument only in an enforcement action.
Likewise, until the 20th century, Congress rarely created “citizen suit”-
style causes of action for suits against private parties by private plain-
tiffs who had not suffered a concrete harm. All told, until the 20th cen-
tury, this Court had little reason to emphasize the injury-in-fact require-
ment because, until the 20th century, there were relatively few instances
where litigants without concrete injuries had a cause of action to sue in
federal court. The situation has changed markedly, especially over the
last 50 years or so. During that time, Congress has created many novel
Cite as: 594 U. S. ____ (2021) 13
Opinion of the Court
As those examples illustrate, if the law of Article III did
not require plaintiffs to demonstrate a “concrete harm,”
Congress could authorize virtually any citizen to bring a
statutory damages suit against virtually any defendant
who violated virtually any federal law. Such an expansive
understanding of Article III would flout constitutional text,
history, and precedent. In our view, the public interest that
private entities comply with the law cannot “be converted
into an individual right by a statute that denominates it as
such, and that permits all citizens (or, for that matter, a
subclass of citizens who suffer no distinctive concrete harm)
to sue.” Lujan, 504 U. S., at 576–577.2
A regime where Congress could freely authorize un-
harmed plaintiffs to sue defendants who violate federal law
not only would violate Article III but also would infringe on
the Executive Branch’s Article II authority. We accept the
“displacement of the democratically elected branches when
necessary to decide an actual case.” Roberts, 42 Duke L. J.,
at 1230. But otherwise, the choice of how to prioritize and
how aggressively to pursue legal actions against defendants
who violate the law falls within the discretion of the Exec-
utive Branch, not within the purview of private plaintiffs
——————
and expansive causes of action that in turn have required greater judicial
focus on the requirements of Article III. See, e.g., Spokeo, Inc. v. Robins,
578 U. S. 330 (2016); Summers v. Earth Island Institute, 555 U. S. 488(2009); Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992).
2 A plaintiff must show that the injury is not only concrete but also
particularized. But if there were no concrete-harm requirement, the re-
quirement of a particularized injury would do little or nothing to con-
strain Congress from freely creating causes of action for vast classes of
unharmed plaintiffs to sue any defendants who violate any federal law.
(Congress might, for example, provide that everyone has an individual
right to clean air and can sue any defendant who violates any air-pollu-
tion law.) That is one reason why the Court has been careful to empha-
size that concreteness and particularization are separate requirements.
See Spokeo, 578 U. S., at 339–340; see generally Bayefsky, Constitu-
tional Injury and Tangibility, 59 Wm. & Mary L. Rev. 2285, 2298–2300,
2368 (2018).
14 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
(and their attorneys). Private plaintiffs are not accountable
to the people and are not charged with pursuing the public
interest in enforcing a defendant’s general compliance with
regulatory law. See Lujan, 504 U. S., at 577.
In sum, the concrete-harm requirement is essential to the
Constitution’s separation of powers. To be sure, the con-
crete-harm requirement can be difficult to apply in some
cases. Some advocate that the concrete-harm requirement
be ditched altogether, on the theory that it would be more
efficient or convenient to simply say that a statutory viola-
tion and a cause of action suffice to afford a plaintiff stand-
ing. But as the Court has often stated, “the fact that a given
law or procedure is efficient, convenient, and useful in facil-
itating functions of government, standing alone, will not
save it if it is contrary to the Constitution.” Chadha, 462
U. S., at 944. So it is here.3
——————
3 The lead dissent would reject the core standing principle that a plain-
tiff must always have suffered a concrete harm, and would cast aside
decades of precedent articulating that requirement, such as Spokeo,
Summers, and Lujan. Post, at 9–11 (opinion of THOMAS, J.). As we see
it, the dissent’s theory would largely outsource Article III to Congress.
As we understand the dissent’s theory, a suit seeking to enforce “general
compliance with regulatory law” would not suffice for Article III standing
because such a suit seeks to vindicate a duty owed to the whole commu-
nity. Spokeo, 578 U. S., at 345 (THOMAS, J., concurring) (internal quota-
tion marks omitted). But under the dissent’s theory, so long as Congress
frames a defendant’s obligation to comply with regulatory law as an ob-
ligation owed to individuals, any suit to vindicate that obligation sud-
denly suffices for Article III. Suppose, for example, that Congress passes
a law purporting to give all American citizens an individual right to clean
air and clean water, as well as a cause of action to sue and recover $100
in damages from any business that violates any pollution law anywhere
in the United States. The dissent apparently would find standing in such
a case. We respectfully disagree. In our view, unharmed plaintiffs who
seek to sue under such a law are still doing no more than enforcing gen-
eral compliance with regulatory law. And under Article III and this
Court’s precedents, Congress may not authorize plaintiffs who have not
suffered concrete harms to sue in federal court simply to enforce general
compliance with regulatory law.
Cite as: 594 U. S. ____ (2021) 15
Opinion of the Court
III
We now apply those fundamental standing principles to
this lawsuit. We must determine whether the 8,185 class
members have standing to sue TransUnion for its alleged
violations of the Fair Credit Reporting Act. The plaintiffs
argue that TransUnion failed to comply with statutory ob-
ligations (i) to follow reasonable procedures to ensure the
accuracy of credit files so that the files would not include
OFAC alerts labeling the plaintiffs as potential terrorists;
and (ii) to provide a consumer, upon request, with his or her
complete credit file, including a summary of rights.
Some preliminaries: As the party invoking federal juris-
diction, the plaintiffs bear the burden of demonstrating that
they have standing. See Lujan v. Defenders of Wildlife, 504
U. S. 555, 561 (1992). Every class member must have Arti-
cle III standing in order to recover individual damages.
“Article III does not give federal courts the power to order
relief to any uninjured plaintiff, class action or not.” Tyson
Foods, Inc. v. Bouaphakeo, 577 U. S. 442, 466 (2016)
(ROBERTS, C. J., concurring).4 Plaintiffs must maintain
their personal interest in the dispute at all stages of litiga-
tion. Davis v. Federal Election Comm’n, 554 U. S. 724, 733
(2008). A plaintiff must demonstrate standing “with the
manner and degree of evidence required at the successive
stages of the litigation.” Lujan, 504 U. S., at 561. There-
fore, in a case like this that proceeds to trial, the specific
facts set forth by the plaintiff to support standing “must be
supported adequately by the evidence adduced at trial.”
Ibid. (internal quotation marks omitted). And standing is
not dispensed in gross; rather, plaintiffs must demonstrate
standing for each claim that they press and for each form of
——————
4 We do not here address the distinct question whether every class
member must demonstrate standing before a court certifies a class. See,
e.g., Cordoba v. DIRECTV, LLC, 942 F. 3d 1259, 1277 (CA11 2019).
16 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
relief that they seek (for example, injunctive relief and dam-
ages). Davis, 554 U. S., at 734; Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167,
185 (2000).
A
We first address the plaintiffs’ claim that TransUnion
failed to “follow reasonable procedures to assure maximum
possible accuracy” of the plaintiffs’ credit files maintained
by TransUnion. 15 U. S. C. §1681e(b). In particular, the
plaintiffs argue that TransUnion did not do enough to en-
sure that OFAC alerts labeling them as potential terrorists
were not included in their credit files.
Assuming that the plaintiffs are correct that TransUnion
violated its obligations under the Fair Credit Reporting Act
to use reasonable procedures in internally maintaining the
credit files, we must determine whether the 8,185 class
members suffered concrete harm from TransUnion’s failure
to employ reasonable procedures.5
1
Start with the 1,853 class members (including the named
plaintiff Ramirez) whose reports were disseminated to
third-party businesses. The plaintiffs argue that the publi-
cation to a third party of a credit report bearing a mislead-
ing OFAC alert injures the subject of the report. The plain-
tiffs contend that this injury bears a “close relationship” to
a harm traditionally recognized as providing a basis for a
lawsuit in American courts—namely, the reputational
harm associated with the tort of defamation. Spokeo, Inc.
v. Robins, 578 U. S. 330, 341 (2016).
——————
5 For purposes of this case, the parties have assumed that TransUnion
violated the statute even with respect to those plaintiffs whose OFAC
alerts were never disseminated to third-party businesses. But see Wash-
ington v. CSC Credit Servs. Inc., 199 F. 3d 263, 267 (CA5 2000). We take
no position on that issue.
Cite as: 594 U. S. ____ (2021) 17
Opinion of the Court
We agree with the plaintiffs. Under longstanding Amer-
ican law, a person is injured when a defamatory statement
“that would subject him to hatred, contempt, or ridicule” is
published to a third party. Milkovich v. Lorain Journal Co.,
497 U. S. 1, 13 (1990) (internal quotation marks omitted);
Gertz v. Robert Welch, Inc., 418 U. S. 323, 349 (1974); see
also Restatement of Torts §559 (1938). TransUnion pro-
vided third parties with credit reports containing OFAC
alerts that labeled the class members as potential terror-
ists, drug traffickers, or serious criminals. The 1,853 class
members therefore suffered a harm with a “close relation-
ship” to the harm associated with the tort of defamation.
We have no trouble concluding that the 1,853 class mem-
bers suffered a concrete harm that qualifies as an injury in
fact.
TransUnion counters that those 1,853 class members did
not suffer a harm with a “close relationship” to defamation
because the OFAC alerts on the disseminated credit reports
were only misleading and not literally false. See id., §558.
TransUnion points out that the reports merely identified a
consumer as a “potential match” to an individual on the
OFAC list—a fact that TransUnion says is not technically
false.
In looking to whether a plaintiff ’s asserted harm has a
“close relationship” to a harm traditionally recognized as
providing a basis for a lawsuit in American courts, we do
not require an exact duplicate. The harm from being la-
beled a “potential terrorist” bears a close relationship to the
harm from being labeled a “terrorist.” In other words, the
harm from a misleading statement of this kind bears a suf-
ficiently close relationship to the harm from a false and de-
famatory statement.
In short, the 1,853 class members whose reports were dis-
seminated to third parties suffered a concrete injury in fact
under Article III.
18 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
2
The remaining 6,332 class members are a different story.
To be sure, their credit files, which were maintained by
TransUnion, contained misleading OFAC alerts. But the
parties stipulated that TransUnion did not provide those
plaintiffs’ credit information to any potential creditors dur-
ing the class period from January 2011 to July 2011. Given
the absence of dissemination, we must determine whether
the 6,332 class members suffered some other concrete harm
for purposes of Article III.
The initial question is whether the mere existence of a
misleading OFAC alert in a consumer’s internal credit file
at TransUnion constitutes a concrete injury. As Judge
Tatel phrased it in a similar context, “if inaccurate infor-
mation falls into” a consumer’s credit file, “does it make a
sound?” Owner-Operator Independent Drivers Assn., Inc. v.
United States Dept. of Transp., 879 F. 3d 339, 344 (CADC
2018).
Writing the opinion for the D. C. Circuit in Owner-Oper-
ator, Judge Tatel answered no. Publication is “essential to
liability” in a suit for defamation. Restatement of Torts
§577, Comment a, at 192. And there is “no historical or
common-law analog where the mere existence of inaccurate
information, absent dissemination, amounts to concrete in-
jury.” Owner-Operator, 879 F. 3d, at 344–345. “Since the
basis of the action for words was the loss of credit or fame,
and not the insult, it was always necessary to show a pub-
lication of the words.” J. Baker, An Introduction to English
Legal History 474 (5th ed. 2019). Other Courts of Appeals
have similarly recognized that, as Judge Colloton summa-
rized, the “retention of information lawfully obtained, with-
out further disclosure, traditionally has not provided the
basis for a lawsuit in American courts,” meaning that the
mere existence of inaccurate information in a database is
insufficient to confer Article III standing. Braitberg v.
Charter Communications, Inc., 836 F. 3d 925, 930 (CA8
Cite as: 594 U. S. ____ (2021) 19
Opinion of the Court
2016); see Gubala v. Time Warner Cable, Inc., 846 F. 3d
909, 912 (CA7 2017).
The standing inquiry in this case thus distinguishes be-
tween (i) credit files that consumer reporting agencies
maintain internally and (ii) the consumer credit reports
that consumer reporting agencies disseminate to third-
party creditors. The mere presence of an inaccuracy in an
internal credit file, if it is not disclosed to a third party,
causes no concrete harm. In cases such as these where al-
legedly inaccurate or misleading information sits in a com-
pany database, the plaintiffs’ harm is roughly the same, le-
gally speaking, as if someone wrote a defamatory letter and
then stored it in her desk drawer. A letter that is not sent
does not harm anyone, no matter how insulting the letter
is. So too here.6
Because the plaintiffs cannot demonstrate that the mis-
leading information in the internal credit files itself consti-
——————
6 For the first time in this Court, the plaintiffs also argue that
TransUnion “published” the class members’ information internally—for
example, to employees within TransUnion and to the vendors that
printed and sent the mailings that the class members received. That
new argument is forfeited. In any event, it is unavailing. Many Ameri-
can courts did not traditionally recognize intra-company disclosures as
actionable publications for purposes of the tort of defamation. See, e.g.,
Chalkley v. Atlantic Coast Line R. Co., 150 Va. 301, 326–328, 143 S. E.
631, 638–639 (1928). Nor have they necessarily recognized disclosures
to printing vendors as actionable publications. See, e.g., Mack v. Delta
Air Lines, Inc., 639 Fed. Appx. 582, 586 (CA11 2016). Moreover, even the
plaintiffs’ cited cases require evidence that the defendant actually
“brought an idea to the perception of another,” Restatement of Torts
§559, Comment a, p. 140 (1938), and thus generally require evidence that
the document was actually read and not merely processed, cf. Ostrowe v.
Lee, 256 N. Y. 36, 38–39, 175 N. E. 505, 505–506 (1931) (Cardozo, C. J.).
That evidence is lacking here. In short, the plaintiffs’ internal publica-
tion theory circumvents a fundamental requirement of an ordinary def-
amation claim—publication—and does not bear a sufficiently “close rela-
tionship” to the traditional defamation tort to qualify for Article III
standing.
20 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
tutes a concrete harm, the plaintiffs advance a separate ar-
gument based on an asserted risk of future harm. They say
that the 6,332 class members suffered a concrete injury for
Article III purposes because the existence of misleading
OFAC alerts in their internal credit files exposed them to a
material risk that the information would be disseminated
in the future to third parties and thereby cause them harm.
The plaintiffs rely on language from Spokeo where the
Court said that “the risk of real harm” (or as the Court oth-
erwise stated, a “material risk of harm”) can sometimes
“satisfy the requirement of concreteness.” 578 U. S., at
341–342 (citing Clapper v. Amnesty Int’l USA, 568 U. S. 398(2013)).
To support its statement that a material risk of future
harm can satisfy the concrete-harm requirement, Spokeo
cited this Court’s decision in Clapper. But importantly,
Clapper involved a suit for injunctive relief. As this Court
has recognized, 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. See Clapper, 568
U. S., at 414, n. 5; Los Angeles v. Lyons, 461 U. S. 95, 102
(1983); see also Gubala, 846 F. 3d, at 912.
But a plaintiff must “demonstrate standing separately for
each form of relief sought.” Friends of the Earth, 528 U. S.,
at 185. Therefore, a plaintiff ’s standing to seek injunctive
relief does not necessarily mean that the plaintiff has
standing to seek retrospective damages.
TransUnion advances a persuasive argument that in a
suit for damages, the mere risk of future harm, standing
alone, cannot qualify as a concrete harm—at least unless
the exposure to the risk of future harm itself causes a sepa-
rate concrete harm. Brief for Petitioner 39, n. 4; Tr. of Oral
Cite as: 594 U. S. ____ (2021) 21
Opinion of the Court
Arg. 36.7 TransUnion contends that if an individual is ex-
posed to a risk of future harm, time will eventually reveal
whether the risk materializes in the form of actual harm.
If the risk of future harm materializes and the individual
suffers a concrete harm, then the harm itself, and not the
pre-existing risk, will constitute a basis for the person’s in-
jury and for damages. If the risk of future harm does not
materialize, then the individual cannot establish a concrete
harm sufficient for standing, according to TransUnion.
Consider an example. Suppose that a woman drives
home from work a quarter mile ahead of a reckless driver
who is dangerously swerving across lanes. The reckless
driver has exposed the woman to a risk of future harm, but
the risk does not materialize and the woman makes it home
safely. As counsel for TransUnion stated, that would ordi-
narily be cause for celebration, not a lawsuit. Id., at 8. But
if the reckless driver crashes into the woman’s car, the sit-
uation would be different, and (assuming a cause of action)
the woman could sue the driver for damages.
The plaintiffs note that Spokeo cited libel and slander
per se as examples of cases where, as the plaintiffs see it, a
mere risk of harm suffices for a damages claim. But as
Judge Tatel explained for the D. C. Circuit, libel and slan-
der per se “require evidence of publication.” Owner-Opera-
tor, 879 F. 3d, at 345. And for those torts, publication is
——————
7 For example, 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. See Reply Brief 14; Tr. of Oral Arg. 30.
The plaintiffs here have not relied on such a theory of Article III harm.
They have not claimed an emotional distress injury from the risk that a
misleading credit report might be sent to a third-party business. Nor
could they do so, given that the 6,332 plaintiffs have not established that
they were even aware of the misleading information in the internal credit
files maintained at TransUnion.
22 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
generally presumed to cause a harm, albeit not a readily
quantifiable harm. As Spokeo noted, “the law has long per-
mitted recovery by certain tort victims even if their harms
may be difficult to prove or measure.” 578 U. S., at 341 (em-
phasis added). But there is a significant difference between
(i) an actual harm that has occurred but is not readily quan-
tifiable, as in cases of libel and slander per se, and (ii) a
mere risk of future harm. By citing libel and slander per se,
Spokeo did not hold that the mere risk of future harm, with-
out more, suffices to demonstrate Article III standing in a
suit for damages.
Here, the 6,332 plaintiffs did not demonstrate that the
risk of future harm materialized—that is, that the inaccu-
rate OFAC alerts in their internal TransUnion credit files
were ever provided to third parties or caused a denial of
credit. Nor did those plaintiffs present evidence that the
class members were independently harmed by their expo-
sure to the risk itself—that is, that they suffered some other
injury (such as an emotional injury) from the mere risk that
their credit reports would be provided to third-party busi-
nesses. Therefore, the 6,332 plaintiffs’ argument for stand-
ing for their damages claims based on an asserted risk of
future harm is unavailing.
Even apart from that fundamental problem with their ar-
gument based on the risk of future harm, the plaintiffs did
not factually establish a sufficient risk of future harm to
support Article III standing. As Judge McKeown explained
in her dissent, the risk of future harm that the 6,332 plain-
tiffs identified—the risk of dissemination to third parties—
was too speculative to support Article III standing. 951
F. 3d 1008, 1040 (2020); see Whitmore v. Arkansas, 495
U. S. 149, 157 (1990). The plaintiffs claimed that TransUn-
ion could have divulged their misleading credit information
to a third party at any moment. But the plaintiffs did not
demonstrate a sufficient likelihood that their individual
Cite as: 594 U. S. ____ (2021) 23
Opinion of the Court
credit information would be requested by third-party busi-
nesses and provided by TransUnion during the relevant
time period. Nor did the plaintiffs demonstrate that there
was a sufficient likelihood that TransUnion would other-
wise intentionally or accidentally release their information
to third parties. “Because no evidence in the record estab-
lishes a serious likelihood of disclosure, we cannot simply
presume a material risk of concrete harm.” 951 F. 3d, at
1040 (opinion of McKeown, J.).
Moreover, the plaintiffs did not present any evidence that
the 6,332 class members even knew that there were OFAC
alerts in their internal TransUnion credit files. If those
plaintiffs prevailed in this case, many of them would first
learn that they were “injured” when they received a check
compensating them for their supposed “injury.” It is diffi-
cult to see how a risk of future harm could supply the basis
for a plaintiff ’s standing when the plaintiff did not even
know that there was a risk of future harm.
Finally, the plaintiffs advance one last argument for why
the 6,332 class members are similarly situated to the other
1,853 class members and thus should have standing. The
6,332 plaintiffs note that they sought damages for the en-
tire 46-month period permitted by the statute of limita-
tions, whereas the stipulation regarding dissemination cov-
ered only 7 of those months. They argue that the credit
reports of many of those 6,332 class members were likely
also sent to third parties outside of the period covered by
the stipulation because all of the class members requested
copies of their reports, and consumers usually do not re-
quest copies unless they are contemplating a transaction
that would trigger a credit check.
That is a serious argument, but in the end, we conclude
that it fails to support standing for the 6,332 class mem-
bers. The plaintiffs had the burden to prove at trial that
their reports were actually sent to third-party businesses.
The inferences on which the argument rests are too weak
24 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
to demonstrate that the reports of any particular number of
the 6,332 class members were sent to third-party busi-
nesses. The plaintiffs’ attorneys could have attempted to
show that some or all of the 6,332 class members were in-
jured in that way. They presumably could have sought the
names and addresses of those individuals, and they could
have contacted them. In the face of the stipulation, which
pointedly failed to demonstrate dissemination for those
class members, the inferences on which the plaintiffs rely
are insufficient to support standing. Cf. Interstate Circuit,
Inc. v. United States, 306 U. S. 208, 226 (1939) (“The pro-
duction of weak evidence when strong is available can lead
only to the conclusion that the strong would have been ad-
verse”).
In sum, the 6,332 class members whose internal
TransUnion credit files were not disseminated to third-
party businesses did not suffer a concrete harm. By con-
trast, the 1,853 class members (including Ramirez) whose
credit reports were disseminated to third-party businesses
during the class period suffered a concrete harm.
B
We next address the plaintiffs’ standing to recover dam-
ages for two other claims in the complaint: the disclosure
claim and the summary-of-rights claim. Those two claims
are intertwined.
In the disclosure claim, the plaintiffs alleged that
TransUnion breached its obligation to provide them with
their complete credit files upon request. According to the
plaintiffs, TransUnion sent the plaintiffs copies of their
credit files that omitted the OFAC information, and then in
a second mailing sent the OFAC information. See
§1681g(a)(1). In the summary-of-rights claim, the plaintiffs
further asserted that TransUnion should have included an-
other summary of rights in that second mailing—the mail-
ing that included the OFAC information. See §1681g(c)(2).
Cite as: 594 U. S. ____ (2021) 25
Opinion of the Court
As the plaintiffs note, the disclosure and summary-of-rights
requirements are designed to protect consumers’ interests
in learning of any inaccuracies in their credit files so that
they can promptly correct the files before they are dissemi-
nated to third parties.
In support of standing, the plaintiffs thus contend that
the TransUnion mailings were formatted incorrectly and
deprived them of their right to receive information in the
format required by statute. But the plaintiffs have not
demonstrated that the format of TransUnion’s mailings
caused them a harm with a close relationship to a harm tra-
ditionally recognized as providing a basis for a lawsuit in
American courts. See Spokeo, 578 U. S., at 341. In fact,
they do not demonstrate that they suffered any harm at all
from the formatting violations. The plaintiffs presented no
evidence that, other than Ramirez, “a single other class
member so much as opened the dual mailings,” “nor that
they were confused, distressed, or relied on the information
in any way.” 951 F. 3d, at 1039, 1041 (opinion of McKeown,
J.) (emphasis added). The plaintiffs put forth no evidence,
moreover, that the plaintiffs would have tried to correct
their credit files—and thereby prevented dissemination of
a misleading report—had they been sent the information in
the proper format. Ibid. Without any evidence of harm
caused by the format of the mailings, these are “bare proce-
dural violation[s], divorced from any concrete harm.”
Spokeo, 578 U. S., at 341. That does not suffice for Article
III standing.8
The plaintiffs separately argue that TransUnion’s for-
——————
8 The District Court and the Court of Appeals concluded that Ramirez
(in addition to the other 8,184 class members) had standing as to those
two claims. In this Court, TransUnion has not meaningfully contested
Ramirez’s individual standing as to those two claims. We have no reason
or basis to disturb the lower courts’ conclusion on Ramirez’s individual
standing as to those two claims.
26 TRANSUNION LLC v. RAMIREZ
Opinion of the Court
matting violations created a risk of future harm. Specifi-
cally, the plaintiffs contend that consumers who received
the information in this dual-mailing format were at risk of
not learning about the OFAC alert in their credit files.
They say that they were thus at risk of not being able to
correct their credit files before TransUnion disseminated
credit reports containing the misleading information to
third-party businesses. As noted above, the risk of future
harm on its own does not support Article III standing for
the plaintiffs’ damages claim. In any event, the plaintiffs
made no effort here to explain how the formatting error pre-
vented them from contacting TransUnion to correct any er-
rors before misleading credit reports were disseminated to
third-party businesses. To reiterate, there is no evidence
that “a single other class member so much as opened the
dual mailings,” “nor that they were confused, distressed, or
relied on the information in any way.” 951 F. 3d, at 1039,
1041 (opinion of McKeown, J.).
For its part, the United States as amicus curiae, but not
the plaintiffs, separately asserts that the plaintiffs suffered
a concrete “informational injury” under several of this
Court’s precedents. See Federal Election Comm’n v. Akins,
524 U. S. 11 (1998); Public Citizen v. Department of Justice,
491 U. S. 440 (1989). We disagree. The plaintiffs did not
allege that they failed to receive any required information.
They argued only that they received it in the wrong format.
Therefore, Akins and Public Citizen do not control here. In
addition, those cases involved denial of information subject
to public-disclosure or sunshine laws that entitle all mem-
bers of the public to certain information. This case does not
involve such a public-disclosure law. See Casillas v. Madi-
son Avenue Assocs., Inc., 926 F. 3d 329, 338 (CA7 2019);
Trichell v. Midland Credit Mgmt., Inc., 964 F. 3d 990, 1004
(CA11 2020). Moreover, the plaintiffs have identified no
“downstream consequences” from failing to receive the re-
quired information. Trichell, 964 F. 3d, at 1004. They did
Cite as: 594 U. S. ____ (2021) 27
Opinion of the Court
not demonstrate, for example, that the alleged information
deficit hindered their ability to correct erroneous infor-
mation before it was later sent to third parties. An “as-
serted informational injury that causes no adverse effects
cannot satisfy Article III.” Ibid.
* * *
No concrete harm, no standing. The 1,853 class members
whose credit reports were provided to third-party busi-
nesses suffered a concrete harm and thus have standing as
to the reasonable-procedures claim. The 6,332 class mem-
bers whose credit reports were not provided to third-party
businesses did not suffer a concrete harm and thus do not
have standing as to the reasonable-procedures claim. As
for the claims pertaining to the format of TransUnion’s
mailings, none of the 8,185 class members other than the
named plaintiff Ramirez suffered a concrete harm.
We reverse the judgment of the U. S. Court of Appeals for
the Ninth Circuit and remand the case for further proceed-
ings consistent with this opinion. In light of our conclusion
about Article III standing, we need not decide whether
Ramirez’s claims were typical of the claims of the class un-
der Rule 23. On remand, the Ninth Circuit may consider in
the first instance whether class certification is appropriate
in light of our conclusion about standing.
It is so ordered.
Cite as: 594 U. S. ____ (2021) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–297
_________________
TRANSUNION LLC, PETITIONER v. SERGIO L.
RAMIREZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 25, 2021]
JUSTICE THOMAS, with whom JUSTICE BREYER, JUSTICE
SOTOMAYOR, AND JUSTICE KAGAN join, dissenting.
TransUnion generated credit reports that erroneously
flagged many law-abiding people as potential terrorists and
drug traffickers. In doing so, TransUnion violated several
provisions of the Fair Credit Reporting Act (FCRA) that en-
title consumers to accuracy in credit-reporting procedures;
to receive information in their credit files; and to receive a
summary of their rights. Yet despite Congress’ judgment
that such misdeeds deserve redress, the majority decides
that TransUnion’s actions are so insignificant that the Con-
stitution prohibits consumers from vindicating their rights
in federal court. The Constitution does no such thing.
I
For decades, the Treasury Department’s Office of Foreign
Assets Control (OFAC) has compiled a list of “Specially Des-
ignated Nationals.” The list largely includes terrorists and
drug traffickers, among other unseemly types. And, as a
general matter, Americans are barred from doing business
with those listed. In the wake of the September 11 attacks,
TransUnion began to sell a new (and more expensive) type
of credit report that flagged whether an individual’s name
matched a name found on that list.
The system TransUnion used to decide which individuals
2 TRANSUNION LLC v. RAMIREZ
THOMAS, J., dissenting
to flag was rather rudimentary. It compared only the con-
sumer’s first and last name with the names on the OFAC
list. If the names were identical or similar, TransUnion in-
cluded in the consumer’s report an “OFAC ADVISOR
ALERT,” explaining that the consumer’s name matches a
name on the OFAC database. See, e.g., 951 F. 3d 1008,
1017, 1019 (CA9 2020) (“ ‘Cortez’ would match with ‘Cor-
tes’ ”). TransUnion did not compare birth dates, middle in-
itials, Social Security numbers, or any other available iden-
tifier routinely used to collect and verify credit-report data.
Id., at 1019, n. 2.
In 2005, a consumer sued. TransUnion had sold an
OFAC credit report about this consumer to a car dealership.
The report flagged her—Sandra Jean Cortez, born in May
1944—as a match for a person on the OFAC list: Sandra
Cortes Quintero, born in June 1971. TransUnion withheld
this OFAC alert from the credit report that Cortez had re-
quested. And despite Cortez’s efforts to have the alert re-
moved, TransUnion kept the alert in place for years.
After a trial, the jury returned a verdict in the consumer’s
favor on four FCRA claims, two of which are similar to
claims at issue here: (1) TransUnion failed to follow rea-
sonable procedures that would ensure maximum possible
accuracy, 15 U. S. C. §1681e(b); and (2) TransUnion failed
to provide Cortez all information in her file despite her re-
quests, §1681g(a). See Cortez v. Trans Union, LLC, 617
F. 3d 688, 696–706 (CA3 2010). The jury awarded $50,000
in actual damages and $750,000 in punitive damages, and
it also took the unusual step of including on the verdict form
a handwritten note urging TransUnion to “completely re-
vam[p]” its business practices. App. to Brief for Respondent
2a. The District Court reduced the punitive damages
award to $100,000, which the Third Circuit affirmed on ap-
peal, stressing that TransUnion’s failure to, “at the very
least, compar[e] birth dates when they are available,” was
“reprehensible.” 617 F. 3d, at 723.
Cite as: 594 U. S. ____ (2021) 3
THOMAS, J., dissenting
But TransUnion “made surprisingly few changes” after
this verdict. 951 F. 3d, at 1021. It did not begin comparing
birth dates. Or middle initials. Or citizenship. In fact,
TransUnion did not compare any new piece of information.
Instead, it hedged its language saying a consumer was a
“ ‘potential match’ ” rather than saying the person was a
“ ‘match.’ ” Ibid. And instead of listing matches for similar
names, TransUnion required that the first and last names
match exactly. Unsurprisingly, these reports kept flagging
law-abiding Americans as potential terrorists and drug
traffickers. And equally unsurprising, someone else sued.
That brings us to this case. Sergio Ramirez visited a car
dealership, offered to buy a car, and negotiated the terms.
The dealership then ran a joint credit check on Ramirez and
his wife. The salesperson said that the check revealed that
Ramirez was on “ ‘a terrorist list,’ ” so the salesperson re-
fused to close the deal with him. Id., at 1017.
Ramirez requested and received a copy of his credit report
from TransUnion. The report purported to be “complete
and reliable,” but it made no mention of the OFAC alert.
See App. 88–91. TransUnion later sent a separate “ ‘cour-
tesy’ ” letter, which informed Ramirez that his “TransUnion
credit report” had “been mailed to [him] separately.” Id., at
92. That letter informed Ramirez that he was a potential
match to someone in the OFAC database, but it never re-
vealed that any OFAC information was present on his
credit report. See id., at 92–94. TransUnion opted not to
include with this letter a description of Ramirez’s rights un-
der the FCRA or any information on how to dispute the
OFAC match. 951 F. 3d, at 1018. The letter merely di-
rected Ramirez to visit the Department of Treasury’s web-
site or to call or write TransUnion if Ramirez had any addi-
tional questions or concerns.
Ramirez sued, asserting three claims under the FCRA:
TransUnion willfully failed to follow reasonable procedures
to assure maximum possible accuracy of the information
4 TRANSUNION LLC v. RAMIREZ
THOMAS, J., dissenting
concerning him, §1681e(b); TransUnion willfully failed to
disclose to him all the information in his credit file by with-
holding the true version of his credit report, §1681g(a)(1);
and TransUnion willfully failed to provide a summary of
rights when it sent him the courtesy letter, §1681g(c)(2).
Ramirez also sought to represent a class of individuals
who had received a similar OFAC letter from TransUnion.
“[E]veryone in the class: (1) was falsely labeled . . . a poten-
tial OFAC match; (2) requested a copy of his or her credit
report from TransUnion; and (3) in response, received a
credit-report mailing with the OFAC alert redacted and a
separate OFAC Letter mailing with no summary of rights.”
Id., at 1022.
The jury found in favor of the class on all three claims.
And because it also determined that TransUnion’s miscon-
duct was “willfu[l],” §1681n(a), the jury awarded each class
member $984.22 in statutory damages (about $8 million to-
tal) and $6,353.08 in punitive damages (about $52 million
total).
TransUnion appealed, arguing that the class members
lacked standing. The Ninth Circuit disagreed, explaining
that “TransUnion’s reckless handling of OFAC information
exposed every class member to a real risk of harm to their
concrete privacy, reputational, and informational interests
protected by the FCRA.” Id., at 1037.1
II
A
Article III vests “[t]he judicial Power of the United
States” in this Court “and in such inferior Courts as the
Congress may from time to time ordain and establish.” §1.
——————
1 TransUnion also contends that Ramirez’s claims and defenses are not
typical of those of the class. The Court declines to reach that question
because its jurisdictional holding is dispositive. Ante, at 27. In my view,
the District Court did not abuse its discretion in certifying the class given
the similarities among the claims and defenses at issue.
Cite as: 594 U. S. ____ (2021) 5
THOMAS, J., dissenting
This power “shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under
their Authority.” §2 (emphasis added). When a federal
court has jurisdiction over a case or controversy, it has a
“virtually unflagging obligation” to exercise it. Colorado
River Water Conservation Dist. v. United States, 424 U. S.
800, 817 (1976).
The mere filing of a complaint in federal court, however,
does not a case (or controversy) make. Article III “does not
extend the judicial power to every violation of the constitu-
tion” or federal law “which may possibly take place.” Co-
hens v. Virginia, 6 Wheat. 264, 405 (1821). Rather, the
power extends only “to ‘a case in law or equity,’ in which a
right, under such law, is asserted.” Ibid. (emphasis added).
Key to the scope of the judicial power, then, is whether an
individual asserts his or her own rights. At the time of the
founding, whether a court possessed judicial power over an
action with no showing of actual damages depended on
whether the plaintiff sought to enforce a right held pri-
vately by an individual or a duty owed broadly to the com-
munity. See Spokeo, Inc. v. Robins, 578 U. S. 330, 344–346
(2016) (THOMAS, J., concurring); see also Thole v. U. S.
Bank N. A., 590 U. S. ___, ___–___ (2020) (same) (slip op.,
at 1–2); 3 W. Blackstone, Commentaries on the Laws of
England 2 (J. Chitty ed. 1826); 4 id., at 5. Where an indi-
vidual sought to sue someone for a violation of his private
rights, such as trespass on his land, the plaintiff needed
only to allege the violation. See Entick v. Carrington, 2
Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817 (K. B. 1765).
Courts typically did not require any showing of actual dam-
age. See Uzuegbunam v. Preczewski, 592 U. S. ___, ___–___
(2021) (slip op., at 5–6). But where an individual sued
based on the violation of a duty owed broadly to the whole
community, such as the overgrazing of public lands, courts
required “not only injuria [legal injury] but also damnum
6 TRANSUNION LLC v. RAMIREZ
THOMAS, J., dissenting
[damage].” Spokeo, 578 U. S., at 346 (THOMAS, J., concur-
ring) (citing Robert Marys’s Case, 9 Co. Rep. 111b, 112b, 77
Eng. Rep. 895, 898–899 (K. B. 1613); brackets in original).
This distinction mattered not only for traditional com-
mon-law rights, but also for newly created statutory ones.
The First Congress enacted a law defining copyrights and
gave copyright holders the right to sue infringing persons
in order to recover statutory damages, even if the holder
“could not show monetary loss.” Muransky v. Godiva Choc-
olatier, Inc., 979 F. 3d 917, 972 (CA11 2020) (Jordan, J., dis-
senting) (citing Act of May 31, 1790, §2, 1 Stat. 124–125).
In the patent context, a defendant challenged an infringe-
ment suit brought under a similar law. Along the lines of
what TransUnion argues here, the infringer contended that
“the making of a machine cannot be an offence, because no
action lies, except for actual damage, and there can be no
actual damages, or even a rule for damages, for an infringe-
ment by making a machine.” Whittemore v. Cutter, 29
F. Cas. 1120, 1121 (No. 17,600) (CC Mass. 1813). Riding
circuit, Justice Story rejected that theory, noting that the
plaintiff could sue in federal court merely by alleging a vio-
lation of a private right: “[W]here the law gives an action
for a particular act, the doing of that act imports of itself a
damage to the party” because “[e]very violation of a right
imports some damage.” Ibid.; cf. Gayler v. Wilder, 10 How.
477, 494 (1851) (patent rights “did not exist at common
law”).2
——————
2 The “public rights” terminology has been used to refer to two different
concepts. In one context, these rights are “ ‘take[n] from the public’ ”—
like the right to make, use, or sell an invention—and “ ‘bestow[ed] . . .
upon the’ ” individual, like a “decision to grant a public franchise.” Oil
States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S.
___, ___–___ (2018) (slip op., at 6–7). Disputes with the Government over
these rights generally can be resolved “outside of an Article III court.”
Id., at ___–___ (slip op., at 9–10). Here, in contrast, the term “public
rights” refers to duties owed collectively to the community. For example,
Cite as: 594 U. S. ____ (2021) 7
THOMAS, J., dissenting
The principle that the violation of an individual right
gives rise to an actionable harm was widespread at the
founding, in early American history, and in many modern
cases. See Uzuegbunam, 592 U. S., at ___–___ (slip op., at
5–8) (collecting cases); Havens Realty Corp. v. Coleman, 455
U. S. 363, 373 (1982) (“[T]he actual or threatened injury re-
quired by Art. III may exist solely by virtue of statutes cre-
ating legal rights, the invasion of which creates standing”
(citing cases; brackets and internal quotation marks omit-
ted)). And this understanding accords proper respect for
the power of Congress and other legislatures to define legal
rights. No one could seriously dispute, for example, that a
violation of property rights is actionable, but as a general
matter, “[p]roperty rights are created by the State.”
Palazzolo v. Rhode Island, 533 U. S. 606, 626 (2001). In
light of this history, tradition, and common practice, our
test should be clear: So long as a “statute fixes a minimum
of recovery . . . , there would seem to be no doubt of the right
of one who establishes a technical ground of action to re-
cover this minimum sum without any specific showing of
loss.” T. Cooley, Law of Torts *271.3 While the Court today
discusses the supposed failure to show “injury in fact,”
courts for centuries held that injury in law to a private right
——————
Congress owes a duty to all Americans to legislate within its constitu-
tional confines. But not every single American can sue over Congress’
failure to do so. Only individuals who, at a minimum, establish harm
beyond the mere violation of that constitutional duty can sue. Cf.
Fairchild v. Hughes, 258 U. S. 126, 129–130 (1922) (“Plaintiff has only
the right, possessed by every citizen, to require that the Government be
administered according to law and that the public moneys be not wasted.
Obviously this general right does not entitle a private citizen to institute
in the federal courts a suit to secure by indirection a determination
whether a statute, if passed, or a constitutional amendment, about to be
adopted, will be valid”).
3 Etymology is also a helpful guide. The word “injury” stems from the
Latin “injuria,” which combines “in” (expressing negation) and “jus”
(right, law, justice). See Barnhart Dictionary of Etymology 529 (1988).
8 TRANSUNION LLC v. RAMIREZ
THOMAS, J., dissenting
was enough to create a case or controversy.
B
Here, each class member established a violation of his or
her private rights. The jury found that TransUnion vio-
lated three separate duties created by statute. See App.
690. All three of those duties are owed to individuals, not
to the community writ large. Take §1681e(b), which re-
quires a consumer reporting agency to “follow reasonable
procedures to assure maximum possible accuracy of the in-
formation concerning the individual about whom the report
relates.” This statute creates a duty: to use reasonable pro-
cedures to assure maximum possible accuracy. And that
duty is particularized to an individual: the subject of the
report. Section 1681g does the same. It requires an agency
to “clearly and accurately disclose” to a consumer, upon his
request, “[a]ll information in the consumer’s file at the time
of the request” and to include a written “summary of rights”
with that “written disclosure.” §§1681g(a), (c)(2). Those di-
rectives likewise create duties: provide all information in
the consumer’s file and accompany the disclosure with a
summary of rights. And these too are owed to a single per-
son: the consumer who requests the information.
Were there any doubt that consumer reporting agencies
owe these duties to specific individuals—and not to the
larger community—Congress created a cause of action
providing that “[a]ny person who willfully fails to comply”
with an FCRA requirement “with respect to any consumer
is liable to that consumer.” §1681n(a) (emphasis added). If
a consumer reporting agency breaches any FCRA duty
owed to a specific consumer, then that individual (not all
consumers) may sue the agency. No one disputes that each
class member possesses this cause of action. And no one
disputes that the jury found that TransUnion violated each
class member’s individual rights. The plaintiffs thus have
a sufficient injury to sue in federal court.
Cite as: 594 U. S. ____ (2021) 9
THOMAS, J., dissenting
C
The Court chooses a different approach. Rejecting this
history, the majority holds that the mere violation of a per-
sonal legal right is not—and never can be—an injury suffi-
cient to establish standing. What matters for the Court is
only that the “injury in fact be ‘concrete.’ ” Ante, at 8. “No
concrete harm, no standing.” Ante, at 1, 27.
That may be a pithy catchphrase, but it is worth pausing
to ask why “concrete” injury in fact should be the sole in-
quiry. After all, it was not until 1970—“180 years after the
ratification of Article III”—that this Court even introduced
the “injury in fact” (as opposed to injury in law) concept of
standing. Sierra v. Hallandale Beach, 996 F. 3d 1110, 1117
(CA11 2021) (Newsom, J., concurring). And the concept
then was not even about constitutional standing; it con-
cerned a statutory cause of action under the Administrative
Procedure Act. See Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970) (ex-
plaining that the injury-in-fact requirement “concerns,
apart from the ‘case’ or ‘controversy’ test, the question
whether the interest sought to be protected by the com-
plainant is arguably within the zone of interests to be pro-
tected or regulated by the statute or constitutional guaran-
tee in question”).
The Court later took this statutory requirement and be-
gan to graft it onto its constitutional standing analysis.
See, e.g., Warth v. Seldin, 422 U. S. 490 (1975). But even
then, injury in fact served as an additional way to get into
federal court. Article III injury still could “exist solely by
virtue of ‘statutes creating legal rights, the invasion of
which creates standing.’ ” Id., at 500 (quoting Linda R. S.
v. Richard D., 410 U. S. 614, 617, n. 3 (1973)). So the intro-
duction of an injury-in-fact requirement, in effect, “repre-
sented a substantial broadening of access to the federal
courts.” Simon v. Eastern Ky. Welfare Rights Organization,
10 TRANSUNION LLC v. RAMIREZ
THOMAS, J., dissenting
426 U. S. 26, 39 (1976). A plaintiff could now invoke a fed-
eral court’s judicial power by establishing injury by virtue
of a violated legal right or by alleging some other type of
“personal interest.” Ibid.In the context of public rights, the Court continued to re-
quire more than just a legal violation. In Lujan v. Defend-
ers of Wildlife, 504 U. S. 555 (1992), for example, the Court
concluded that several environmental organizations lacked
standing to challenge a regulation about interagency com-
munications, even though the organizations invoked a citi-
zen-suit provision allowing “ ‘any person [to] commence a
civil suit . . . to enjoin any person . . . who is alleged to be in
violation of ’ ” the law. See id., at 558, 571–572; 16 U. S. C.
§1540(g). Echoing the historical distinction between duties
owed to individuals and those owed to the community, the
Court explained that a plaintiff must do more than raise “a
generally available grievance about government—claiming
only harm to his and every citizen’s interest in proper ap-
plication of the Constitution and laws.” 504 U. S., at 573.
“Vindicating the public interest (including the public inter-
est in Government observance of the Constitution and laws)
is the function of Congress and the Chief Executive.” Id.,
at 576. “ ‘The province of the court,’ ” in contrast, “ ‘is, solely,
to decide on the rights of individuals.’ ” Ibid. (quoting Mar-
bury v. Madison, 1 Cranch 137, 170 (1803)).
The same public-rights analysis prevailed in Summers v.
Earth Island Institute, 555 U. S. 488 (2009). There, a group
of organizations sought to prevent the United States Forest
Service from enforcing regulations that exempt certain pro-
jects from notice and comment. Id., at 490. The Court,
again, found that the mere violation of the law “without
some concrete interest that is affected by the deprivation—
a procedural right in vacuo—is insufficient to create Article
III standing.” Id., at 496. But again, this was rooted in the
context of public rights: “ ‘It would exceed Article III’s limi-
tations if, at the behest of Congress and in the absence of
Cite as: 594 U. S. ____ (2021) 11
THOMAS, J., dissenting
any showing of concrete injury, we were to entertain citizen
suits to vindicate the public’s nonconcrete interest in the
proper administration of the laws.’ ” Id., at 497 (emphasis
added; brackets omitted).
In Spokeo, the Court built on this approach. Based on a
few sentences from Lujan and Summers, the Court con-
cluded that a plaintiff does not automatically “satisf[y] the
injury-in-fact requirement whenever a statute grants a per-
son a statutory right and purports to authorize that person
to sue to vindicate that right.” Spokeo, 578 U. S., at 341.
But the Court made clear that “Congress is well positioned
to identify intangible harms that meet minimum Article III
requirements” and explained that “the violation of a proce-
dural right granted by statute can be sufficient in some cir-
cumstances to constitute injury in fact.” Id., at 341, 342
(emphasis added).
Reconciling these statements has proved to be a chal-
lenge. See Sierra, 996 F. 3d, at 1116–1117 (Newsom, J.,
concurring) (collecting examples of inconsistent decisions).
But “[t]he historical restrictions on standing” offer consid-
erable guidance. Thole, 590 U. S., at ___ (THOMAS, J., con-
curring) (slip op., at 1). A statute that creates a public right
plus a citizen-suit cause of action is insufficient by itself to
establish standing. See Lujan, 504 U. S., at 576.4 A statute
that creates a private right and a cause of action, however,
does gives plaintiffs an adequate interest in vindicating
their private rights in federal court. See Thole, 590 U. S.,
at ___ (THOMAS, J., concurring); Spokeo, 578 U. S., at ___–
——————
4 But see Caminker, Comment, The Constitutionality of Qui Tam Ac-
tions, 99 Yale L. J. 341, 342, n. 3 (1989) (“Six statutes [enacted by the
First Congress] imposed penalties and/or forfeitures for conduct injuri-
ous to the general public and expressly authorized suits by private in-
formers, with the recovery being shared between the informer and the
United States”); McCulloch v. Maryland, 4 Wheat. 316, 317, 321–322
(1819) (reviewing “an action of debt brought by the defendant in error . . .
who sued as well for himself as for the State of Maryland . . . to recover
certain penalties”).
12 TRANSUNION LLC v. RAMIREZ
THOMAS, J., dissenting
___ (same); see also Muransky, 979 F. 3d, at 970–972 (Jor-
dan, J., dissenting); Huff v. TeleCheck Servs., Inc., 923 F. 3d
458, 469 (CA6 2019) (“Article III standing may draw a line
between private and public rights”); Bryant v. Compass
Group USA, Inc., 958 F. 3d, 617, 624 (CA7 2020) (the
Spokeo concurrence “drew a useful distinction between two
types of injuries”).
The majority today, however, takes the road less trav-
eled: “[U]nder Article III, an injury in law is not an injury
in fact.” Ante, at 11; but see Webb v. Portland Mfg. Co., 29
F. Cas. 506, 508 (No. 17,322) (CC Me. 1838) (“The law tol-
erates no farther inquiry than whether there has been the
violation of a right”). No matter if the right is personal or
if the legislature deems the right worthy of legal protection,
legislatures are constitutionally unable to offer the protec-
tion of the federal courts for anything other than money,
bodily integrity, and anything else that this Court thinks
looks close enough to rights existing at common law. See
ante, at 9. The 1970s injury-in-fact theory has now dis-
placed the traditional gateway into federal courts.
This approach is remarkable in both its novelty and ef-
fects. Never before has this Court declared that legal injury
is inherently insufficient to support standing.5 And never
before has this Court declared that legislatures are consti-
tutionally precluded from creating legal rights enforceable
in federal court if those rights deviate too far from their
——————
5 See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 578 (1992)
(“Nothing in this contradicts the principle that the injury required by
Art. III may exist solely by virtue of ‘statutes creating legal rights, the
invasion of which creates standing” (internal quotation marks, brackets,
and ellipsis omitted)); Warth v. Seldin, 422 U. S. 490, 514 (1975) (“Con-
gress may create a statutory right or entitlement the alleged deprivation
of which can confer standing to sue even where the plaintiff would have
suffered no judicially cognizable injury in the absence of statute”); Linda
R. S. v. Richard D., 410 U. S. 614, 617, n. 3 (1973) (“Congress may enact
statutes creating legal rights, the invasion of which creates standing,
even though no injury would exist without the statute”).
Cite as: 594 U. S. ____ (2021) 13
THOMAS, J., dissenting
common-law roots. According to the majority, courts alone
have the power to sift and weigh harms to decide whether
they merit the Federal Judiciary’s attention. In the name
of protecting the separation of powers, ante, at 7, 14, this
Court has relieved the legislature of its power to create and
define rights.
III
Even assuming that this Court should be in the business
of second-guessing private rights, this is a rather odd case
to say that Congress went too far. TransUnion’s miscon-
duct here is exactly the sort of thing that has long merited
legal redress.
As an initial matter, this Court has recognized that the
unlawful withholding of requested information causes “a
sufficiently distinct injury to provide standing to sue.” Pub-
lic Citizen v. Department of Justice, 491 U. S. 440, 449
(1989); see also Havens Realty Corp., 455 U. S., at 374.
Here, TransUnion unlawfully withheld from each class
member the OFAC version of his or her credit report that
the class member requested. And TransUnion unlawfully
failed to send a summary of rights. The majority’s response
is to contend that the plaintiffs actually did not allege that
they failed to receive any required information; they alleged
only that they received it in the “wrong format.” Ante, at
26.
That reframing finds little support in the complaint,
which alleged that TransUnion “fail[ed] to include the
OFAC alerts . . . in the consumer’s own files which consum-
ers, as of right, may request and obtain,” and that TransUn-
ion did “not advise consumers that they may dispute inac-
curate OFAC alerts.” Class Action Complaint in No. 3:12–
cv–00632, ECF Doc. 1 (ND Cal.), p. 5. It also finds no foot-
ing in the record. Neither the mailed credit report nor sep-
arate letter provide any indication that a person’s report is
marked with an OFAC alert. See, e.g., App. 88–94.
14 TRANSUNION LLC v. RAMIREZ
THOMAS, J., dissenting
Were there any doubt about the facts below, we have the
helpful benefit of a jury verdict. The jury found that “De-
fendant TransUnion, LLC willfully fail[ed] to clearly and
accurately disclose OFAC information in the written disclo-
sures it sent to members of the class.” Id., at 690. And the
jury found that “Defendant TransUnion, LLC willfully
fail[ed] to provide class members a summary of their FCRA
rights with each written disclosure made to them.” Ibid. I
would not be so quick as to recharacterize these jury find-
ings as mere “formatting” errors. Ante, at 2, 25–26; see also
U. S. Const., Amdt. 7 (“no fact tried by a jury, shall be oth-
erwise re-examined in any Court of the United States, than
according to the rules of the common law”).
Moreover, to the extent this Court privileges concrete, fi-
nancial injury for standing purposes, recall that TransUn-
ion charged its clients extra to receive credit reports with
the OFAC designation. According to TransUnion, these
special OFAC credit reports are valuable. Even the major-
ity must admit that withholding something of value from
another person—that is, “monetary harm”—falls in the
heartland of tangible injury in fact. Ante, at 1, 9. Recogniz-
ing as much, TransUnion admits that its clients would have
standing to sue if they, like the class members, did not re-
ceive the OFAC credit reports they had requested. Tr. of
Oral Arg. 9.
And then there is the standalone harm caused by the ra-
ther extreme errors in the credit reports. The majority
(rightly) decides that having one’s identity falsely and pub-
lically associated with terrorism and drug trafficking is it-
self a concrete harm. Ante, at 16–17. For good reason. This
case is a particularly grave example of the harm this Court
identified as central to the FCRA: “curb[ing] the dissemina-
tion of false information.” Spokeo, 578 U. S., at 342. And it
aligns closely with a “harm that has traditionally been re-
garded as providing a basis for a lawsuit.” Id., at 341. His-
torically, “[o]ne who falsely, and without a privilege to do
Cite as: 594 U. S. ____ (2021) 15
THOMAS, J., dissenting
so, publishes matter defamatory to another in such a man-
ner as to make the publication a libel is liable to the other,”
even though “no special harm or loss of reputation results
therefrom.” Restatement of Torts §569, p. 165 (1938).
The question this Court has identified as key, then, is
whether a plaintiff established “a degree of risk” that is
“sufficient to meet the concreteness requirement.” Spokeo,
578 U. S., at 343. Here, in a 7-month period, it is undis-
puted that nearly 25 percent of the class had false OFAC-
flags sent to potential creditors. Twenty-five percent over
just a 7-month period seems, to me, “a degree of risk suffi-
cient to meet the concreteness requirement.” Ibid. If 25
percent is insufficient, then, pray tell, what percentage is?
The majority deflects this line of analysis by all but elim-
inating the risk-of-harm analysis. According to the major-
ity, an elevated risk of harm simply shows that a concrete
harm is imminent and thus may support only a claim for
injunctive relief. Ante, at 20, 26. But this reworking of
Spokeo fails for two reasons. First, it ignores what Spokeo
said: “[Our opinion] does not mean . . . that the risk of real
harm cannot satisfy the requirement of concreteness.”
Spokeo, 578 U. S., at 341. Second, it ignores what Spokeo
did. The Court in Spokeo remanded the respondent’s claims
for statutory damages to the Ninth Circuit to consider
“whether the . . . violations alleged in this case entail a de-
gree of risk sufficient to meet the concreteness require-
ment.” Id., at 342–343. The theory that risk of harm mat-
ters only for injunctive relief is thus squarely foreclosed by
Spokeo itself.
But even if risk of harm is out, the Ninth Circuit indi-
cated that every class member may have had an OFAC alert
disclosed. According to the court below, TransUnion not
only published this information to creditors for a quarter of
the class but also “communicated about the database infor-
mation and OFAC matches” with a third party. 951 F. 3d,
at 1026; cf. Cortez, 617 F. 3d, at 711 (TransUnion cannot
16 TRANSUNION LLC v. RAMIREZ
THOMAS, J., dissenting
avoid FCRA liability “by simply contracting with a third
party to store and maintain information”). Respondent
adds to this by pointing out that TransUnion published this
information to vendors that printed and sent the mailings.
See Brief for Respondent 16; see also App. 161 (deposition
testimony explaining that “a printed credit report . . . would
have been sent through our print vendor through the mail
and delivered to the consumer requesting the file disclo-
sure); id., at 545 (trial testimony identifying three different
print-vendor companies that worked with TransUnion dur-
ing the relevant time period). In the historical context of
libel, publication to even a single other party could be
enough to give rise to suit. This was true, even where the
third party was a telegraph company,6 an attorney,7 or a
stenographer who merely writes the information down.8
——————
6 Munson v. Lathrop, 96 Wis. 386, 389, 71 N. W. 596, 597 (1897) (“The
writing of the message, and the delivery of it by him to the [telegraph]
company for transmission, as mentioned, was a publication of the same”).
7 Hedgepeth v. Coleman, 183 N. C. 309, 312–313, 111 S. E. 517, 519
(1922) (“[I]t has been held that the publication was sufficient where the
defendant had communicated the defamatory matter to the plaintiff ’s
agent, or attorney; or had read it to a friend before posting it to the plain-
tiff; or had procured it to be copied, or sealed in the form of a letter ad-
dressed to the plaintiff and left in the house of a neighbor by whom it
was read; or had caused it to be delivered to and read by a member of the
plaintiff ’s family”).
8 Rickbeil v. Grafton Deaconess Hospital, 74 N. D. 525, 542 (1946) (“We
hold that the dictating of this letter by the manager to the stenographer
and her transcription of her notes into the written instrument consti-
tutes publication within the purview of the law of libel: whether the re-
lationship be that of master and servant or of coemployees of a corpora-
tion”); see also Larimore v. Blaylock, 259 Va. 568, 573, 528 S. E. 2d 119,
122 (2000) (rejecting an argument of “absolute protection of the ‘intra-
corporate immunity doctrine’ ” for defamatory statements); but see Swin-
dle v. State, 10 Tenn. 581, 582 (1831) (“ ‘A personal libel is published
when it arrives to the person against whom it is written, pursuant to the
design of the author, or is made known to any other person, by any means
to which the dissent of the author is not necessarily implied’ ” (emphasis
added)).
Cite as: 594 U. S. ____ (2021) 17
THOMAS, J., dissenting
Surely with a harm so closely paralleling a common-law
harm, this is an instance where a plaintiff “need not allege
any additional harm beyond the one Congress has identi-
fied.” Spokeo, 578 U. S., at 342 (emphasis deleted).
But even setting aside everything already mentioned—
the Constitution’s text, history, precedent, financial harm,
libel, the risk of publication, and actual disclosure to a third
party—one need only tap into common sense to know that
receiving a letter identifying you as a potential drug traf-
ficker or terrorist is harmful. All the more so when the in-
formation comes in the context of a credit report, the entire
purpose of which is to demonstrate that a person can be
trusted.
And if this sort of confusing and frustrating communica-
tion is insufficient to establish a real injury, one wonders
what could rise to that level. If, instead of falsely identify-
ing Ramirez as a potential drug trafficker or terrorist,
TransUnion had flagged him as a “potential” child molester,
would that alone still be insufficient to open the courthouse
doors? What about falsely labeling a person a racist? In-
cluding a slur on the report? Or what about openly reduc-
ing a person’s credit score by several points because of his
race? If none of these constitutes an injury in fact, how can
that possibly square with our past cases indicating that the
inability to “observe an animal species, even for purely es-
thetic purposes, . . . undeniably” is? Lujan, 504 U. S., at
562; see also Friends of the Earth, Inc. v. Laidlaw Environ-
mental Services (TOC), Inc., 528 U. S. 167, 183 (2000)
(“plaintiffs adequately allege injury in fact when they aver
that they use the affected area and are persons for whom
the aesthetic and recreational values of the area will be
lessened” (internal quotation marks omitted)); Summers,
555 U. S., at 494 (“[I]f . . . harm in fact affects the recrea-
tional or even the mere esthetic interests of the plaintiff,
that will suffice”). Had the class members claimed an aes-
thetic interest in viewing an accurate report, would this
18 TRANSUNION LLC v. RAMIREZ
THOMAS, J., dissenting
case have come out differently?
And if some of these examples do cause sufficiently “con-
crete” and “real”—though “intangible”—harms, how do we
go about picking and choosing which ones do and which do
not? I see no way to engage in this “inescapably value-
laden” inquiry without it “devolv[ing] into [pure] policy
judgment.” Sierra, 996 F. 3d, at 1129 (Newsom, J., concur-
ring). Weighing the harms caused by specific facts and
choosing remedies seems to me like a much better fit for
legislatures and juries than for this Court.
Finally, it is not just the harm that is reminiscent of a
constitutional case or controversy. So too is the remedy.
Although statutory damages are not necessarily a proxy for
unjust enrichment, they have a similar flavor in this case.
TransUnion violated consumers’ rights in order to create
and sell a product to its clients. Reckless handling of con-
sumer information and bungled responses to requests for
information served a means to an end. And the end was
financial gain. “TransUnion could not confirm that a single
OFAC alert sold to its customers was accurate.” 951 F. 3d,
at 1021, n. 4. Yet thanks to this Court, it may well be in a
position to keep much of its ill-gotten gains. 9
* * *
Ultimately, the majority seems to pose to the reader a
——————
9 Today’s decision might actually be a pyrrhic victory for TransUnion.
The Court does not prohibit Congress from creating statutory rights for
consumers; it simply holds that federal courts lack jurisdiction to hear
some of these cases. That combination may leave state courts—which
“are not bound by the limitations of a case or controversy or other federal
rules of justiciability even when they address issues of federal law,”
ASARCO Inc. v. Kadish, 490 U. S. 605, 617 (1989)—as the sole forum for
such cases, with defendants unable to seek removal to federal court. See
also Bennett, The Paradox of Exclusive State-Court Jurisdiction Over
Federal Claims, 105 Minn. L. Rev. 1211 (2021). By declaring that federal
courts lack jurisdiction, the Court has thus ensured that state courts will
exercise exclusive jurisdiction over these sorts of class actions.
Cite as: 594 U. S. ____ (2021) 19
THOMAS, J., dissenting
single rhetorical question: Who could possibly think that a
person is harmed when he requests and is sent an incom-
plete credit report, or is sent a suspicious notice informing
him that he may be a designated drug trafficker or terrorist,
or is not sent anything informing him of how to remove this
inaccurate red flag? The answer is, of course, legion: Con-
gress, the President, the jury, the District Court, the Ninth
Circuit, and four Members of this Court.
I respectfully dissent.
Cite as: 594 U. S. ____ (2021) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–297
_________________
TRANSUNION LLC, PETITIONER v. SERGIO L.
RAMIREZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 25, 2021]
JUSTICE KAGAN, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, dissenting.
The familiar story of Article III standing depicts the doc-
trine as an integral aspect of judicial restraint. The case-
or-controversy requirement of Article III, the account runs,
is “built on a single basic idea—the idea of separation of
powers.” Allen v. Wright, 468 U. S. 737, 752 (1984). Rigor-
ous standing rules help safeguard that separation by keep-
ing the courts away from issues “more appropriately ad-
dressed in the representative branches.” Id., at 751. In so
doing, those rules prevent courts from overstepping their
“proper—and properly limited—role” in “a democratic soci-
ety.” Warth v. Seldin, 422 U. S. 490, 498 (1975); see ante,
at 7–8 (THOMAS, J., dissenting).
After today’s decision, that story needs a rewrite. The
Court here transforms standing law from a doctrine of judi-
cial modesty into a tool of judicial aggrandizement. It holds,
for the first time, that a specific class of plaintiffs whom
Congress allowed to bring a lawsuit cannot do so under Ar-
ticle III. I join JUSTICE THOMAS’s dissent, which explains
why the majority’s decision is so mistaken. As he recounts,
our Article III precedents teach that Congress has broad
“power to create and define rights.” Ante, at 13; see Spokeo,
Inc. v. Robins, 578 U. S. 330, 341 (2016); Lujan v. Defenders
of Wildlife, 504 U. S. 555, 578 (1992); Warth, 422 U. S., at
2 TRANSUNION LLC v. RAMIREZ
KAGAN, J., dissenting
500. And Congress may protect those rights by authorizing
suits not only for past harms but also for the material risk
of future ones. See Spokeo, 578 U. S., at 341–343; ante, at
15 (THOMAS, J., dissenting). Under those precedents, this
case should be easy. In the Fair Credit Reporting Act, Con-
gress determined to protect consumers’ reputations from in-
accurate credit reporting. TransUnion willfully violated
that statute’s provisions by preparing credit files that
falsely called the plaintiffs potential terrorists, and by ob-
scuring that fact when the plaintiffs requested copies of
their files. To say, as the majority does, that the resulting
injuries did not “ ‘exist’ in the real world” is to inhabit a
world I don’t know. Ante, at 10. And to make that claim in
the face of Congress’s contrary judgment is to exceed the
judiciary’s “proper—and properly limited—role.” Warth,
422 U. S., at 498; see ante, at 12–13 (THOMAS, J., dissent-
ing).
I add a few words about the majority’s view of the risks
of harm to the plaintiffs. In addressing the claim that
TransUnion failed to maintain accurate credit files, the ma-
jority argues that the “risk of dissemination” of the plain-
tiffs’ credit information to third parties is “too speculative.”
Ante, at 22. But why is it so speculative that a company in
the business of selling credit reports to third parties will in
fact sell a credit report to a third party? See also ante, at
15 (THOMAS, J., dissenting) (noting that “nearly 25% of the
class” already had false reports “sent to potential credi-
tors”). And in addressing the claims of faulty disclosure to
the plaintiffs, the majority makes a set of curious assump-
tions. According to the majority, people who specifically re-
quest a copy of their credit report may not even “open[ ] ” the
envelope. Ante, at 25 (emphasis in original). And people
who receive multiple opaque mailings are not likely to be
“confused.” Ibid.; but see Niz-Chavez v. Garland, 593 U. S.
___, ___ (2021) (slip op., at 14) (explaining that a “series of
Cite as: 594 U. S. ____ (2021) 3
KAGAN, J., dissenting
letters,” “each containing a new morsel of vital infor-
mation,” is likely to perplex recipients). And finally, people
who learn that their credit files label them potential terror-
ists would not “have tried to correct” the error. Ante, at 25.
Rather than accept those suppositions, I sign up with
JUSTICE THOMAS: “[O]ne need only tap into common sense
to know that receiving a letter identifying you as a potential
drug trafficker or terrorist is harmful.” Ante, at 17.
I differ with JUSTICE THOMAS on just one matter, unlikely
to make much difference in practice. In his view, any “vio-
lation of an individual right” created by Congress gives rise
to Article III standing. Ante, at 7. But in Spokeo, this Court
held that “Article III requires a concrete injury even in the
context of a statutory violation.” 578 U. S., at 341. I con-
tinue to adhere to that view, but think it should lead to the
same result as JUSTICE THOMAS’s approach in all but highly
unusual cases. As Spokeo recognized, “Congress is well po-
sitioned to identify [both tangible and] intangible harms”
meeting Article III standards. Ibid. Article III requires for
concreteness only a “real harm” (that is, a harm that “actu-
ally exist[s]”) or a “risk of real harm.” Ibid. And as today’s
decision definitively proves, Congress is better suited than
courts to determine when something causes a harm or risk
of harm in the real world. For that reason, courts should
give deference to those congressional judgments. Overrid-
ing an authorization to sue is appropriate when but only
when Congress could not reasonably have thought that a
suit will contribute to compensating or preventing the harm
at issue. Subject to that qualification, I join JUSTICE
THOMAS’s dissent in full.