FCRA class action dispute stayed for Supreme Court appeal

Courts Appellate Ninth Circuit U.S. Supreme Court Class Action FCRA OFAC

On April 15, the U.S. Court of Appeals for the Ninth Circuit granted a joint motion to stay a mandate pending a credit reporting agency’s (CRA) filing of a petition for writ of certiorari with the U.S. Supreme Court. If a petition is filed, the stay will continue until final disposition by the Court. As previously covered by InfoBytes, in February the 9th Circuit reduced punitive damages in a class action against the CRA for allegedly violating the FCRA by erroneously linking class members to criminals and terrorists with similar names in a database maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC). The appellate court found that all class members had standing due to, among other things, the CRA’s alleged “reckless handling of information from OFAC,” which subjected class members to “a real risk of harm,” and rejected the CRA’s request for judgment as a matter of law or a new trial on the basis that the class had failed to provide sufficient evidence of injuries or to support the damages award. The appellate court concluded, however, that the $52 million punitive damages award was “unconstitutionally excessive,” explaining that, although the CRA’s “conduct was reprehensible, it was not so egregious as to justify a punitive award of more than six times an already substantial compensatory award.” 

The CRA subsequently filed a petition for rehearing (which the appellate court denied), challenging, among other things, the 9th Circuit’s conclusion that the CRA’s decision to make the credit reports available to numerous potential creditors and employers was “sufficient to show a material risk of harm to the concrete interest of all class members.” The CRA argued that this was “exactly the sort of hypothetical risk of injury the Supreme Court has made clear does not cut it” to establish concrete injury, and that the decision was inconsistent with the 9th Circuit’s own precedent, in which the appellate court determined that “the risk of injury becomes material only when the document gets into third-party hands.” The CRA also argued that the 4 to 1 benchmark ratio between punitive damages and statutory damages was still too high, because it “conflicts not just with the Supreme Court’s commands, but with decisions from other circuits finding much lower compensatory-damages awards sufficiently ‘substantial’ to demand a 1:1 ceiling.”