we will hear arguments this morning in case two thousand two hundred and ninety seven trans union versus ramirez mr command mr chief justice and may have placed the court the class certified here suffers from two fatal defects the absence of class member standing and typicality each and every member of this class stands to collect thousands of dollars in damages at the st inkling that many of them will have that they were injured will be receiving a check in the mail the only thing that could have been common is that they were sent their entire credit file into envelopes rather than one and received a summary of rights only in the st mailing but simply receiving all the requisite information in a non compliant format is not enough to inflict a concrete injury and respondent there is no better on his claim the trans union failed to use reasonable procedures in preparing his credit report only seventy five percent of the class never had a credit report which is distinct from the credit file sent home upon request prepared or disseminated during the class period the th circuit reason but there was a material risk that a report could be prepared and disseminate but there is no evidence that the risk ever materialized for over six thousand dollars class members and yet they all stand to receive a shot to check to be sure ramirez himself suffered significant injuries but that just highlights the equally fatal typicality problem here when mir is had a credit report prepared and disseminated to a car dealer was hindered in obtaining credit humiliated in front of family members and cancelled the planned vacation that makes him entirely atypical and un representative of the average class member who simply received her credit in two envelopes in the privacy of her own home ramirez suggests that only his beagle claims need to be the shame but typicality means something different from commonality and the typicality requirement precludes a class representative withhold the atypical injury contrary rule would run counter to the basic promise that a class action is representative litigation and would violate the boot mr command could each of the class members have sued trans union before trans union removed the ofac as ignition from their reports i don't think so mr chief justice i mean obviously if disposed of suit that was filed while the policy was still in place we would probably be governed by the certainly impending standard of the clapper case and i think since the evidence in this suggests that the average class member only had a twenty five percent chance that their report would be disseminated i think that probably means that they did not have a sufficiently impending injury so i don't think it would matter if this were brought prospectively which doesn't seem a little odd i mean they're injured by having their names mistakenly or misleadingly on a report that might be disseminated  they just want to take that off to avoid that risk whether it's twenty five percent or ninety eight percent i don't know why they don't have sufficient standing to at least clear that up maybe their damages aren't terribly significant if you know no one else has seen the report but it's kind of surprising saying that somebody with misleading information about someone that the whole point is they hope somebody asked for it because that's when they get paid and you can't do anything about it chief justice what you can do about it and what the statute specific lee envisions to deal with this situation is you can ask for a copy of your credit file before your credit report is ever disseminated to a rd party and the way the statute visions this works if you get your credit file you see the information that you believe is inaccurate or misleading and then there's a process people initiated to get it cleared up in it before it ever gets disseminated to a rd party well if you know reason the reason to ask for a credit report you know they've never bounced a check in their life they've got perfect credit why would they even do that well if they have no reason to think they have any problem then i'm not sure how they would even that they were suffering a risk of injury in an article chanche but you know this whatever the rule is prospectively i think when you're talking about a retrospective action like this and a challenge to a policy that has been discontinued then i don't think really matters i mean if the risk didn't materialize at that point i think that's a cost to sort of break out the champagne not to break out a lawsuit thank you counsel justice thomas  sue petitioner justice thomas i think that that client would have standing to sue because i think contracts are different for the following reason just by virtue of having a contract action i think that means that you gave consideration in exchange for the promise so i think when you think about a breach of contract case you can think of the injury in fact being supplied especially by the consideration that you gave up in exchange for the promise that people would do whatever they contracted to do even if that was relatively trivial well i understand that's different from private right in the statute but i don't see  difference or distinction the distinction between this makes of the drivers of both private rights well i disagree with you on that justice thomas i do think this involves a classic public rights regime and i think you can see that from the structure of the statute this is not a situation where the statute is the plaintiffs a very specific private right to enforce a very specific promise promise as in the contract if you look at the enforcement provisions six one and zero give the consumer a cause of action for any violation of this subchapter with respect to the consumer and there's a one hundred different requirements that are imposed on the regulated parties by the subchapter which for any violation of the requirement of the subchapter and they can even do that in front of the f t c itself which of course is the hallmarks of a public right so i think this is a public rights regime that the head go for a i would start by saying that for typicality the named plaintiff in the class representative has to have injuries and experience that are typical class it's not just a matter of having the same clients i think he just laid down that rule of law he would go a long ways to sort of solving the problem what would that leave for commonality and predominant well i think they have definitely definitely have a role to play but there are independent roles i can have a common issue in a case but i can still be a very atypical representative to litigate a common issue or even if that common issue predominates so i think all three of those provisions work together in a complimentary fashion thank you just  letter you had all the information they didn't get about these terrorist related and they said that the company didn't follow reason of receivers and they said in the nd letter they didn't get the summary of right so they were all typical in that respect but ramirez also went out and tried to buy something and got into a lot of trouble it was all complicated so when the trial took place w for the lawyer for the company to have objected to the introduction of all that separate and special information about rim era's on the ground it had nothing to do and was prejudicial it had nothing to do with the typical injury suffered by the class so just as prior i don't think that would have been a proper objection to range and and i think the reason is that you know particularly with respect to the reasonable procedures claim ramirez would be testifying about is information that would be highly relevant in his own individual action and i think the rules enabling act doesn't allow you to fundamentally change the rules of the road when the person is testifying in a class action versus an individualized action and so i think the right way to handle this problem is to pick a class representative who is in fact to know i know what you think is the right way but i'm just wondering why in a class action where the individual who is the named plaintiffs suffers a head injury and nobody else suffers a head injury and he wants to introduce that because had something to do with the injury you know it's a relationship but but  can't you object to that why not you say look that that might have been ok in an individual action to bring that in but this isn't that this is a class action let's stick to what the class action harms were why can't you sit i don't think that's the right way to do it and you can't why in part because of the rules in a building act i don't think the evidence comes in as to the main point it's it's supposed to be fundamentally different but if you look at the th circuit free that my friends on the other side filed they specifically said they needed to put forth the experiences of ramirez at the nissan dealership in order to lay the foundation for all of their claims reasonable procedure claims and the disclosure of  as yes or no would just as lief i don't mean to resist it but i think given that you know we know that you know roughly one thousand five hundred people had their reports disseminated and nobody other than ramirez complained i do think there are a lot of people in this class who had it disseminated and maybe the person on the other end took a quick look at the birthdates saw that they were radically different went ahead with the transaction kind of no harm no foul well is there really no harm suppose someone gets this information asked for the credit report guessing information and the person had been flagged as someone whose name resembles the late senator kennedy and did up being on the no fly list or some list associated with the no fly list for secondary screening you know that i think he managed to get it cleaned up and i'm sure it was a little bit of an inconvenience for him to be on the list but the bare fact of knowing that you're on a list or share a name with somebody who's on a list i don't know that that's really his injury untracked of course even if it is that's only twenty five percent of the cloud all right there let me shift to a different subject if we were to agree with you on this isn't the district court should have certified only a narrower class only those whose information was disclosed to rd parties cannot be remedied simply by preclude ng recovery can't be untangled i think it may have been prejudice the plaintiff a little bit given that the jury may have sort of thought about the size of the class and in making the award a little hard to completely on packet of one out of power and in what premise of your of your question so i do think that's quite prejudicial to us you know there's also sort of the theoretical problem that i'm not sure that when a court for it seems on the assumption that it is exercising jurisdiction over all the absent class members that to any unique defenses and they were identical to every class members claims everyone in the class was designated a potential match which someone else on the a with a c list because of the same and reasonable process and everyone received the same two mailings in response to requests for their current credit files now you object to mr ramirez is a typical harms or potential individual damages but i don't see where rule two hundred and thirty three requires typical damages number one so how do you square your argument with the tax of the rule but number two  when you raised this issue before the district court it suggested a bird form that would let the jury award different statutory damages for class members who experience different  this one could imagine with respect to the law at issue this is exactly why the law was passed to protect people from exactly this situation the situation he faced with respect i don't think his claim is typical of the claim of the average class member i mean i would liken it to if if if my fingernail it's broken and i represent a people a class of people with broken fingernails but my fingernail was broken in the process of having my hand mangled i don't think i have a typical claim i don't think i'm a typical class representative and i think you would you would say that text you lead by saying i just my claim is different it's not typical it may be the same legal claim but it's not a typical one and typicality asked for something more than commonality as to the trial error with all due respect i think if you look at that we actually propose a jury form that allowed the juries to say that with respect to the statutory damages you couldn't find that every member of the class was entitled to statutory damages we you know it was ramirez or no one or and and our proposal you can't say what you know one or all that was rejected and drought this case the other side was the one saying that we can just get one number for the statutory damages award and that's why individualized damages don't predominate so i don't think this was a trial error chance of getting cancer and suppose congress passes a law that everybody exposed to that carcinogen can sue and obtain statutory damages and suppose that there is a class action of people exposed to that percentage and does that satisfy article three i think it probably would justice kagan but if this were a weird carcinogen that worked in such a way that like a year later you could tell whether you were in the fifty percent takes us back to the question the deal in the chief justice we're talking about now in nine hypothetical unlike with the chief justices question you agree that retrospective late that they are there is standing right so if you if you just you know your ear within a five year period let's say nobody knows who's going to get cancer you're agreeing that everybody could be in that class action and that they would be standing correct i think so your honor i mean just to be clear i think so because i think a fifty percent exposure to cancer when you haven't figured out whether or not you are going to get it because of the exposure i think that's an injury in year still within the statute of limitations that congress has prescribed and it's still the same claim in the city the same class they're both people who have gotten it and there are people who haven't gotten it now i would have said that if you're willing to give me that everybody has standing within the five years it should be that everybody has standing in the six the air as well because you have standing a few suffered harm in the past and your concession is a concession that you have suffered harm in the because that's this case and those people i think don't get to recover i mean if even though they could have been covered in the fist even though they didn't know because congress you know said that they should get to recover regardless of their state of knowledge but even in the process of filing the lawsuit during the five year period they essentially would no and so i think you know if you were sort of subject to a risk that you didn't even know about and the risk never materialized at that point i don't think you can bring a retrospective action for damages i made it seems as though it's a material risk of harm in the language that spokeo used to know in your hypo it might be but that's in part because it's you go ahead and finish your answer be curious thank you just discourse is what i was just going to say is that you know here you have a twenty five percent risk based on the information in there in the records and then but consequences of that for everybody other faced or is it that they didn't know about it which is the key to you your argument in response to justice kagan i don't evade the question i think it's the combination of the two so i but just to be clear if you ask me did they get people in this class up or material rest i would say no not a material rest of materiality have to take into account the consequences and given that no one other than mr ramirez so to get any cause any consequences i don't think it's material risk i also think if you're thinking that you know well maybe it's not like the risk of injury so much it is sort of a fright that you might have like a common law for on your battery or something like that that requires knowledge so ok so your so your argument as i understand it then is with respect to those in the the group the didn't the didn't have it there are information sent to rd parties that they need to have some knowledge of the information in order to have any material risk of entries so is that a fair summary of what you're saying i think it is your honor the only thing i would add is i'm thinking that you know if the other side trying to argue that what makes the material risking injury impact here is it least in part the idea is that it would kind of you know ruin your whole day you would be obsessed about it concerned about it that require some knowledge of it in order for you to suffer an injury and in order to have emotional distress you have to have knowledge of something that would cause emotional distress exactly and i think you have to the other side not me i with all due respect have to have a theory as to how the material grist translates into an injury in fact in lest you think that a material rest just standing alone is an injury in fact and if you think that i think it's got to be a lot higher than twenty five percent ok and then with respect to the eight hundred who did have their information published  when i look at you know the common law defamation publication was presumed to give rise to injury the idea of if something bad is said about you in public we reserve the law the common law would presume entry why wouldn't the same hold true here but i think your honor the key thing is you know i didn't try to quibble about whether it had to be defamatory per se or false but here i don't think what is actually published is in fact false because if you go to the ofac website today and type in the respondents name you will get a hit so what we've communicated is this name is a potential match to somebody with the risk of harm alone is likely not enough for damages as opposed to injunctive relief you said so i read footnote four of your brief in response to justice kagan and justice course which i think you are saying but tell me if i'm wrong that the risk of harm still not enough for damages unless the risk of harm is itself a separate harm in other words the risk of harm is not a cancer in other words you don't have the cancer but the risk of harm a create motional injury an accurate way to summarize what you're saying i think that's right your honor and i guess the only other thing i would add is i suppose there might be certain risks of harm that are so high that maybe think that the material risk is itself an injury in combat even if it doesn't manifest itself in emotional harm or some other injury in fact but i don't think that's twenty five percent chance dissemination of a credit report even for damages crimes even for damages claims but as you said at the outset i do think the footnote or point is very important which is whatever your risk was ex ante that might have been enough to get  were in the seventy five percent that were fortunate and didn't actually suffer an injury in fact because the risk didn't materialize i don't think you have injury in fact that way to pick up on justice alito and also justice course and schiff we agree with you on th thousand three hundred and thirty two people but don't agree with you on the eight hundred and fifty three people exactly what should we say in terms of what should happen on remand so i would say that what you is that the that the courts pelosi decertify the class you can remember from the very beginning we said the reason you can't have a class here is because the issue of injury is not common to the class and so i think  indicating the point and i think it's also worth recognizing that i think what you'd be saying about the six thousand three hundred and thirty two is not that they absolutely positively don't have injury it's just even saying if they have any injury they've got come in and show it individually and register underscores that this class of eight thousand plots was wrong for i'm beginning to the reasons that we've pointed out from the beginning and then in response to justice thomas i think you're saying that the problem here is that congress is setting up and some so shadow government of private attorneys general doing forced prohibitions on certain activities by certain entities and that's an article to article three problem and your test does no harm no foul but how would systemically describe how we determine whether there is sufficient harm as a general matter or can that be done and in a general way i'm not sure that's capable of generalization i just think you know you do have to have the best i can do we just need to repeat what i think is the gist of spokeo decision which is you need injury in fact injury in the law won't do it and then the one thing i would add and i think this speaks particularly to people that are focused on the public rights private rights distinction when you have a statute like of the one it issue here or like the one issue in the whole where the structure of the statute is to give certain individuals whether that be consumers here or planned participating in poll a right essentially to enforce any violation of the subchapter that is a strong indication that congress has not actually made the judgment that this is a very specific private right and i want to ask you a follow on to justice kagan's hypothetical about the people who drink water exposed to a carcinogen in their fifty percent risk of cancer she asked you to distinguish between what would happen if they filed within the five year period in which they would know whether the risk of materialized outside the five year period saying the six year i want to know what would happen say if they filed in year two but the litigation drags on and on and on and the case doesn't come to its conclusion until year six so if i understand your response to justice kagan it would essentially mean that people had standing at the outset of the suit but if they were in the fifty percent that were home free they would lose their standing by the end i mean it just seems like an odd way to think about it since we normally judge standing at the outset and when something dissipates over the course of a suit we think about it in terms of mootness not that the injury isn't concrete  to terminations that they didn't suffer damages how to how to think about how i think you probably would in your high flow which is you know little different from any of every other i've forgotten i think movements might be the right training and i also think you're probably right that at that point in that case they would probably also lose because they wouldn't be able to sustain their cause of action at that point and the only thing i would add your honor is you know this court has made very clear in cases like  won that you do have to maintain your standing at every stage of the case and so you know is that in your hypo i think what happens if you sort of the clock runs out in the injury but if the evidence that oath really emerges of trial makes clear that as to induce sleep through people a risk absolutely positively did not materialize i don't think you could say at that point they fit on the evidence in the record at that juncture that they don't have stand ok let me ask you about material risk of harm so as i read spokeo you know it cites clapper after that language it preserves you know the possibility of standing in a prospective suit where harm is imminent but hasn't yet happened and then for slander per se  and no there are some harms that will recognize that the common law as we have discussed here in this argument that were presumed to cause harm because even if you didn't have to prove that you lost a job over it you know that the risk was so great that in and of itself the common l proposed and it seems like this case is about whether even going beyond that the big risk that the tort would actually happen to you is itself a tort and i haven't heard you disclaim that as a proper reading of instead it seems like you're talking about quantifying the risk accepting that that could be an injury under spokeo but only if it's an eighty five or ninety percent chance of happening and my understanding you correctly i  think you are your honor but i guess i would take this opportunity to sort of disclaim the idea that just sheer risk and injury in you know real risk of injury you know in and of itself without any link emotional injury or property right type that i think you would have you know that might be one way to understand the defamation cases i don't think that gets it done i mean you know it you know it is the point that you you know you know there's a real risk that you might be injured you're not injured i guess the way i see that if you're not injured ok if you're talking about a distinct injury that pristine that like emotional distress sure and that's why i got into the discussion about sort of whether you know about it because obviously you know i think if you don't know about it at all then you can't be distressed about it and so you can't suffer the injury in fact whereas there are certain injuries you know somebody trespasses on my property and i find out later but at the time i had no idea that you mr chief justice in the end there is no getting around the two fatal flaws with the class certified here the district court recognized from the outset that proof of an actual defacto injury would require individualized proof and refused to certify certain state law claims on that ground but he excused the class from making an individual showing a defacto injury for the fiqh reclaims because th circuit law did not require it at the time but under any proper understanding of article three each class member must have injuries back and this class must be decertified the certification also follows because remember is a radically atypical class representative he suffered serious injuries that would have allowed him to seek actual damages in an individual action but instead he sought statutory damages at the top of the range plus punitive for a class that cheers you this experience is rule twenty three dollars typicality requirement guards against just that kind of abuse the objections repeatedly to whether a violation of a statutory right constitutes a concrete injury all of which point the same direction here the class members have standing to bring reasonable procedures claim by placing ofac alerts on off class members consumer reports  created a real risk of harm that they would be denied credit employment opportunity or other benefit because they were wrongly labeled as potential matches to a terrorist list that is precisely the type of harm that congress ought to prevent by adopting the reasonable procedures provision and defamation provide the common law analog congress also gave consumers rights to receive certain disclosures and summaries of their rights and under this court informational standing cases all class members have standing to bring claims for violations of th typicality questions how if if any way is your position different from that of the responde do informational banding and providing the best basis for the nd two violation that the class alleged in this case that is the summary of right by lation and the disclosure requirements we don't think the court needs to go through this multistep after process and lay down o p o when considering those carol and i think in addition we look at a few to her factors when considering the reasonable procedures for vironment we don't really focus on the control of any emotional distress but look at just the risk of dissemination of the numbers and similarly we haven't taken a position on whether there was a rd party publishing because of the activity that trans union engaged in within its own organization or with that rd party vendors you said in your opening that the class members were wrongly labeled potential matches to the  but i don't see how that's true they were potential matches right they had the same the same name potential doesn't mean actual and i don't see how that doesn't mean actual and i don't see how it could be act they were accurately labeled potential matches ministership just as a couple of st sponsors so that and st of all the statute doesn't require a showing of actual fal sity it requires consumer reporting agencies to follow reasonable procedures to assure maximum possible accuracy and one thing that's going on in this case is petitioner has conflated in a lot of ways the standing in to say that that's not wrong st and last names match isn't matched to a st and last name on another list but it's not a lot different than saying that john smith and john ultimate outcome was incorrect and so we think that the basis the court would send it back would be to say that this was a wrong technicality framework the court of appeals and just our court should have considered the guidelines that we've suggested in our brief that we think are mr ramirez is injuries are a typical we think and claim is not necessarily defined as just the element that an individual needs to prove black's law dictionary want to find claim includes the relief that requested and so claim can consider the injuries that result from an individual experiences that may well end while the defendant's actions may have been the same as to everyone plaintiff's experiences by a consumer who through an audit chance one thousand dollars more of the product than anyone else in the class he just had a higher damages or a class action against somebody for doing something that would send victim to an emergency room could be represented by a person who was not only sent to the emergency room but through an odd set of circumstances was actually sent to the operating room and had to be and had all kinds of it's the same basic harm it's just a lot worse but how does this differ from that in the examples i gave are they not to is the is the defendant allowed to say to the judge judge don't take those non typical things into account the extra damages at least not until we trust claim to have dire might not be a technicality problem there because any differences would be easily calculated and the court could consider that the outside outside of the case determine whether there's a viable damages model to separate different individuals out just based on kind of a mechanical mathematical calculation think the nd example that you gave which kind of is a liability type example in actuality a lot of courts don't allow product liability type cases to proceed as a class because individualized damages tend to tend to make the name plaintiff not typical or run afoul of other bull twenty three consideration and here in the statutory damages contact the jury is charged with setting the amount of damages within a range and plaintiff specific experience can be relevant to that so in a situation like this where one individual is caught plaintiff was placed on the stand and gave extensive testimony about his specific experiences we think that there can be typicality problems there because that isn't indicative of what happened other class members and they might benefit from that in a way that they really show that justice alito lea has set out a number of considerations that may be relevant to injure in fact when congress define harm one of which is congress's judgment another which is whether there's a common law analog for the harm and another of which is whether there was a material risk of harm which might be necessary in some cases but not at all discussion of harm is quite clear and it's potentially subject to different interpretations but let me shift to something else about the class members standing to assert claims for you to provide the information called for by congress mr cuomo says all the information was actually provided but it was just provided in the long form you may not agree with but is it your position that there is always injury and fact when information that congress has must be disclosed in a particular form is not provided in that form but is provided in another form and the recipient  well able to understand the information was provided that's not our position just of the lido the informational fanning cases that we rely on here require i rely on on a denial of information that is actually required to be provided and what you just described wouldn't be a denial of information and so if there's a statutory formatting requirement that would kind of probably be back in the more in general typical with respect to the legal claims his legal claims are identical to everybody else's right that the failure to have reasonable procedures in place and the iranians disclosure correct it claims are the same right now if you would just walk with me ok he's the same in terms with every other class member as a statutory damages and what you say i think is that he may be eight to pickle with respect to the amount of statutory damages to which this particular type of harm would be intitled to my correct  why isn't that a trial issue and why is that an issue for twenty three dollars a wouldn't that be a predominance requirement under twenty three  are let me try to answer the couple of questions that you have in there and starting with the last one which is whether this is a technicality problem or not while i would agree in the court has repeatedly said that there's overlap between typicality and predominant and commonality and in a broader way and getting to the nd kind of point i think that this is not a trial issue because this court has repeatedly said that the plaintiffs need to demonstrate that he or she problem in that situation and because a plane is the master of their complaint and the master of the case that they put on a trial well it's a little bit to me to say that there wouldn't be a typical any problem in that situation but still it's  a it's a it's a problem that's about class certification because mr ramirez could have brought this case as a class representative and not testify at a trial or alternatively he could had somebody else testify at trial a different member of the class and there's no necessary relationship between who's the class representative and who testifies the trial i mean still a rd alternative is that mr clements client could've  a bunch of other class members to testify at trial the question of who testifies at trial really has nothing to do with who the class representative is  suppose it's the sort of a mismatch your argument and your conclusion suppose that there were a different class representative it wasn't mr ramirez it was a class representative with a perfectly typical injury but then he said i have this great idea let's put mr ramir z on the stand i mean he could do that there might be some evidentiary objection but it wouldn't be a class objection a class certification objection so again the problem has nothing to do with class certification doesn't i different form is that alone enough to create an entry in fact under spokeo or do you agree that something more needs to be shown some informational standing per se and thus would end up under spokeo and that is then a court would need to look at congress judgment whether there is a common law analog and whether there is a material risk of harm so it's something more than a m that i think what the court suggested in tokyo is that in certain instances of risk of harm a lot only can be enough to provide article three standing and an example of that in the common law is why bill which is  in the common law would allow a recovery of damages even if harm never actually materialise well because there's been publication known so there's been some kind of reputational injury no you see this case fitting into the separation of powers more generally i think mr coleman is suggesting and certainly the amicus briefs are suggesting on his side that congress is in essence delegating to private attorney general to enforce federal law against a wrong committed by someone to try to deter that wrongful behavior and some of the amicus for you say the problem was that the executive branch and forces federal law and that private plaintiffs can do that can't be delegated that authority by congress unless they themselves have a concrete andry do you disagree with any of that i disagree i think that suggesting that because this law can be enforced by the where a violation with respect to any can do where and when we're talking about here are mistakes made when an individual consumer reports about his or her own information i just don't think that's a violation of executive power or adkins and public citizen arise in the context of floyd and a right to information from the government a lot of the courts of appeals to have recognized this idea of informational injury in the context of information informational standing inquiry here can you describe a little bit more in because it seems to me a haven's reality is the harm there is discrimination not deprivation of information and since it's kind of an obvious site and so those are the three cases that the courts of appeals said we want the information we filed the foyer requests we have no indicate we have no plans of even opening the envelope with the information if you provide it to us with they have had standing men i think it is certainly a closer question but i don't think that informational banding as this court has budet wires they thought that i should say it only requires the denial of information when someone's been titled under article three and why is it a close question if they if the if the plaintiffs in those cases had disclaimed any intent to use the information or even look at it why under your theory is a straightforward yes they had informational injury and therefore standing i think the answer is yes i think it's closer just and that i claims here on these facts the various spokeo factors all cut in favor of finding standing for the reasonable procedures claims the ofac alerts were accurate as to material issue whether party making a contracting decision could lawfully contract with  consumer and there was a substantial likelihood that all class members report with the alerts would be disseminated to rd parties tensioners business this model depended on dissemination edition and made the reports available at a moment's notice and petitioner had a high dissemination rate congress made it clear judgment to protect consumers in this situation and nothing in article three prevent congress from doing so this case falls on the standing side of the line regardless of where hypothetical cases involving other statutory provisions and other fa please the court congress recognize both wrists and benefits inherent in centralizing massive amounts of private credit information it gave credit reporting agencies broad preemptive protection report liability but also the responsibility to ensure accuracy and to follow specific procedures to enable consumers to challenge this report and nothing in article three restricts congress power to create those rights the class alleged and proved invasion of recording and is disclosure claims that is from the same twenty nine paper compliant letter sent to every class member all class members statutory damages based upon the same willful misconduct of the heart of this case is the concrete harm establish a trial being labeled a potential five match is not a misreporting code it is a scarlet letter of our time it bashes individuals from the marketplace and is thus staggered that since two thousand t were driving within a quarter mile but you didn't know it until a few days later you know based on a highway camera you got notice and it told you about the statute can you bring a an action under that statu point you would have been marginal a marginal case your so you're saying that you would have standing to bring bring that suit yes your honor in footnote six of last mark the court distinguished between statutory violation what is the concrete injury in my hypothetical you you didn't know you were exposed to risk but you didn't know it and by the time you found out about it you weren't i think mr command said you know you should be breaking out the champagne or talking about how lucky you are not not how much you've been injured your honor i think spokeo addresses the question of material risk and does not do so in terms of your subjective knowledge and so the question is whether you know with material the risk of your being harmed and whether congress ought to deter parties from engaging in that material risky behavior by creating a cause of action justice thomas day with an explanation so you have the two letters again with complete information would you would you have a claim you would have standing to bring your client your honor i think you would lose on the merits grounds that there's no on the question isn't particularly case is whether these two letters at different times with different disclosures satisfied that story purposes and even  drafter of these letters an employee trans union testified trial that there was confusion created here as with the testimony of mr mayor so you would have standing even though there is certainly doesn't appear to be any intention to the city no intention to send you the wrong letters and a total correction of the problem or an explanation a place intentionality would come in on the damages side point would turn on the proven harm to the individual and the consequences of it in that situation there would be difficult st class certification let alone for the calculation of damages so you think  prior well you want to say anything additional not going to do tional him think must come up often in or fairly often in class cases where damages differ but there are the issues that you say that are the same as someone goes in and tries to testify about the extra damages that he suffered the higher higher prices or the many more widgets that they were charged on or the special bad treatment he got in some hospital etc and the other side i should think would be able to object either that it's irrelevant something like it's relevance is is small compared to the harm it's going to do to our case for these damages are not really very typical there especially agree just a little prejudice the jury but i'm on the right track they are the wrong track what's actually happened i think you are on the right track just this prior and i would have two responses the st is simply that centuries of experience with the trial practice had led the federal rules of evidence to address exactly the questions your honor is asking about rule four ramirez not because he was too strong but because he had no client base that he had dissembled his application they said that he had no damages and they tried to disqualify him on summary judgment on the same basis anybody whose st name and last name corresponds to someone who is on the list lest you think that everybody who would be flagged if there were any sort of relies heavily on the seventy five percent number but the fact is that one quarter of the class had their files accessed by one subset of potential lead access in parties within only seven of the forty six months of the class period so there is material risk here but i think it goes beyond just believe that the testimony at trial was that over ninety percent of the people on the ofac list are foreigners they are not american citizens the class was only american and other one of the let me let me interrupt you to try to get additional question one of the things we look for in determining whether there is article three standing is whether there is a common law i have a lot whether this was the kind of case that would have been recognized as some appropriate case in court at the time of the adoption of the constitution what is the closest case you can think of where there are a way where i could be brought to recover for having been subjected to a risk in the past even party testify of his knowledge of the risk the question was whether there was dissemination of information of sorts that would cause damage and here under the facts presented there are people like landlords who routinely check your credit files most americans have no idea when their credit files are being accessed and so this is a this is a and in position that would not have been recognized  happen just before the person before this article was published the owner of the paper said no we're not going to do that and so it never was published well i've been able to sue for defamation in that situation because i was at a serious risk at some point in the past of being defamed but i never eventual i know that i was at risk no your honor in that case there would have been absolutely no risk of publication it would have been mr analogy however there's a difference between that and being readily accessible computer files are downloaded on a routine basis we have a record millions of times per month to the class in some way so give me your best answer there have been decades of experience under rule twenty three a three and there has never been a requirement of identity of damages among all class members in fact when congress passed p s l are a and determined that it would be best for the class to have the strongest claimant take the lead there was no need to modify rule twenty three or an other fashion change the substantive off class or fixation we have had experiences with justice prior suggested with antitrust cases where somebody bought a one thousand times as many ways to someone else and that does not alter whether the claims are defenses are the same as are being asserted by the rest of the class there is no basis for the state wishing in the beagle claims that are being asserted there are questions of course about whether there can be common answers to the common questions as this court determined in due course is wal mart or they can be questions as to predominate thank you zakharova i get the harm from your procedures claim but i'm wondering if i could press a little bit more on the disclosure claims i mean what mr clements says about those is that your clients are complaining about receiving two on  material risk is a material risk of harm as as spokeo described it what do you take that to me and i mean how likely disarray skaf to be of what kind of harm we're talking about  application to the particular client and most significantly i think it makes a difference whether these are generalized claims of the public at large or private clients or private downman the right to fire congress so i think that the answer to your question justice kagan is that spokeo looks at all of the in the material risk are you trying to determine whether there's a sufficient allegation of actual injury i as we said in our brief it may be better to dis aggregate them they just focus primarily on whether these are private versus public right because that's a simpler analytic divide that helps explain the outcome in all of these court cases thank  gorsuch counsel in your brief at least you seem to suggest that the six thousand three hundred and thirty two class members have standing in part because there was a publication of their information at least within trans union and its agents who print up information for them and i guess my st question for you is does that does that pose a problem in light of our in for a corporate conspiracy doctrine that normally suggests what happens within a corporation doesn't count for purposes of conspiracy need somebody outside of it outside of it and its agents and isn't it odd to speak a publication within a company right or we were in that section for addressing the question from spokeo whether there was a common law analogue to what happened here all we were arguing was not that this was the basis of one and so the question is whether congress created the prior right if i and i understand that point i was trying to clarify the st one and i guess on that my my my follow up to you is that view of defamation law allow for individuals to sue newspapers and other media outlets who shared false information internally but not actually published an externally there are common law precedents for that you a good argument with respect to the one thousand eight hundred and fifty three in terms of the reasonable procedures more concerned about the six thousand three hundred and thirty two whose information was one spokeo talk to then about risk of harm it was talking about harm beyond the publication of least as i understood it for example publication of zip codes which strikes me as a very different thing than risk tell you my risk of harm when there hasn't been publication to begin with so that that's point one and then on risk of harm you've heard me talk about damages st is injunctive relief strikes me that risk of harm of course is enough to get you injunctive relie with damages i hadn't thought risk of harm would get you damages standing for damages claims unless the risk of harm was itself a harm judged on the d c circuit analogized if inaccurate information falls into a to be picking up on the same thing so if you respond of the distinction between this case and spokeo and then try to help me on risk of harm for the six thousand three hundred and thirty two briefly the distinction between this  the offense and the evidence here is that with regard to the other six thousand that there was circumstantial evidence given the limitations on what the defendant provided to us i would i think you know there's different language in there of course we have to figure that out but i thought the publication of self was the key demarcation that helps support standing there and you don't have that here  for the six thousand three hundred and thirty two if you can continue on your answer to that the court remanded in spokeo to determine the standard given the quality of the injury asserted and so the publication was not enough to get over the hurdle and i don't where trans union did an internal audit of its ofac claims and found that in one month in july of two thousand and twelve which is still within the statutory period which was a class period there were ever have a bare procedural violation with respect to any of these consumer protection statutes like ficker are the f t c p a me all of them have procedures that are designed to protect against a risk of harm so you know whether it's to have information put clearly on two pages instead of one or you know whether it's to say that certain things must be in writing or whether it's i'm thinking of many of the cases that the lower courts have dealt with not having so many numbers of our credit card receipt a credit card number reflected on a receipt all of these are designed to protect a consumer against the risk of some harm so is there any violation that you can think of and i'm talking about i'm talking about the disclosure here and i talk about the reasonable procedures claim and the disclosure of private information i'm talking about these procedural guardrails like this is there anything that you can think of that would count as a bare procedural violation of the disclosure of the nature of the procedural violation that the court could reject it as a matter of standing it remains the question whether the court is handling the standing matters meaning that the merits so that is it your position that the reason why they were standing for these things coming in the two envelopes and the ofac envelope not having the specific information that was included in the st credit report is it your ok thank you very much a minute to wrap up mr isaac your honor concerning this course article three cases protecting the domain of congress never has this court found article three to remove jurisdiction for retrospective damage claims when congress has created the private cause of action to the effect of individuals with the right to bring suit and then provided for statutory romney to those individuals it is difficult to imagine a  war at the heart of the statutory zone of a terrorist or one that is more uniform across the class there are only a total of six thousand dollars people on the ofac list and over ninety eight percent of them are foreigners yet there are eight thousand one hundred and eighty five dollars class members you mr chief justice i made it please the court just a few points in rebuttal st of all so the it's interesting to hear the government to say that reporting this is a potential match is not is is fault because if you go to the ofac web site today and type in the respondents name you will get hit and so they think it's good enough for the government i guess that they may hold trans union to a higher standard the government also said that the information need not be false for there to be a statutory violation and that's the respondents counsel correctly answered the chief justices hypo at least under respondent you that a material risk is enough under spokeo but if a material risk is enough and the answer to the chief justice is hypo is that's right everybody can bring actions for traffic violations that didn't actually realise themselves in any harm i mean the article three courts could be open to all sorts of trivial injuries where everybody should be essential toasting their good luck not suing the person who posed a risk to them but didn't actually injure them another point i'm standing i think it is worth recognizing why this issue is so important is there are people in our system of government who do get to pursue violations of federal statutes without suffering injuries in fact they are called prosecutor but if he's going to give a cause of action to an individual under our system they can only actually bring that claim into federal court if they have suffered injury and fat on typicality i want to make two points about that st is to patella is required at the outset of the case because the class representative typicality is important from the beginning it's not just a trial issue that the defense has the right to depose a class representative to from the very beginning of the case the class representative is essentially the embodiment of the case is true i suppose it's a technical matter that the class representative doesn't have to testify but in practice they do and that's why having a triple a typical class representative is a bad idea from the beginning the antitrust cases are different justice pryor and they are different in an important way because it starts with the predominance question at the beginning of certification in an antitrust case or securities case people will say well the individualized issues are damages will pradelle many people say no we can deal with it with some kind of claim processing issue and then the damages issue isn't that important but in a statutory damages case particularly one seeking punitive and the predominant issue what the plaintiffs say is don't worry we have one size fits all statutory and punitive damages here and then if they turn around and say we're going to find the least typical class representative we can that's an abuse that's an abuse this court has stopped the other point i would make about this and this is really where the standing in the typicality arguments come together with is it really is going to be the case that you can have standing just by suffering a material risk and you don't actually have to have the injury realized then having somebody who suffered a real injury risk and had  counsel and i'm sorry i may have exceeded my time in which case thank you thank you consul the case is submitted