TransUnion Part 2: All and All, They are Just Five Bumps on a Log

This case all started with a very American thing. Sergio Ramirez decided to purchase a new car in 2011. Like most people, he needed to finance the car. The car dealership ran a credit check, and accessed his TransUnion credit report, which contained a notice that Mr. Ramirez might be a terrorist.  His name was “similar” name to a terrorist–whatever that means– and appeared on a terrorist watch list created by the Office of Foreign Assets Control (OFAC). This kept him from getting financing to purchase the car, and he went home carless. Perhaps the dealership reasoned  terrorists tend to be poor credit risks.

 

It was a mistake, of course, so Ramirez filed a class action lawsuit against TransUnion. 8,184 people, all of whom had on their credit reports names somehow associated with the OFAC list, sued in federal court in California. And the jury was so outraged—and rightfully so—that they awarded punitive damages, resulting in a $60 million jury verdict.

 

The people had spoken until they were shut up way down the road by a majority of five people, for cabals are often smaller groups. That makes it easier not to leak any information unless you want to do so…that came later but had nothing to do with this kind of decision…right?

 

TransUnion and their $1,000 an hour lawyers knew more than anything else: if you do not have the facts on your side, argue the law. Rather, argue what you think you can get the majority on the Supreme Court to make the law.

 

There’s an old adage from some dearly departed lawyer told to me third or fourth hand in law school by my trial practice professor. It goes like this “That…[expletive inserted] up there on the bench. The judge…that person’s a bump on a log. I’m telling you, a bump on a log. They don’t know any law. You tell them what the law is! You tell them what the law is and make them agree with you! That’s your job!”

 

Undaunted, and with a different version (or maybe the same one) in mind, TransUnion appealed to the 9th Circuit Court of Appeals arguing “no standing,” which reduced the verdict to $40 million for some odd reason.

 

Emboldened, TransUnion appealed to the Supreme Court. They asserted: no standing. They argued none of the plaintiffs had suffered “concrete” injuries that constituted “actual harm.”

 

Not even the Fair Credit Report Act (FCRA) could stop them with all its “bare procedural violations.” Article I, Article II, and Article III of the Constitution, which are supposedly the co-equal branches of government laid out in the Constitution.

 

This is what’s referred to as the “separation of powers,” that lauded concept taught to every child in America…what about that? SCOTUS (don’t let the cozy, marshmallow of an acronym fool you) said, in effect, “Separation of Powers be damned.”

 

The Court ignored the law and threw out the lawsuit for all but 1,800 victims. Those who were lucky enough to be called terrorists “won” the real harm lottery in the eyes of the Court.