Defense Counsel Journal

IADC Amicus Briefs - Volume 88, Number 3

Volume 88, No. 3

October 20, 2021

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The IADC amicus curiae program has been active in recent months. The following brief was filed by the IADC since the last Defense Counsel Journal issue: 

U.S. Supreme Court Rejects “No Injury” Class Action Under Fair Credit Reporting Act (7/16/2021)

At the end of this year’s term, the U.S. Supreme Court issued its ruling in TransUnion LLC v. Ramirez holding that consumers who did not suffer a concrete harm, but rather alleged only a technical violation and potential future harm that did not materialize, lacked standing to pursue claims for alleged violations of the Fair Credit Reporting Act (FCRA).

In this case, TransUnion communicated to a car dealership that Mr. Ramirez’s name matched a name on the Office of Foreign Assets Control list of Specifically Designated Nationals with whom business in the United States is prohibited. It then denied Mr. Ramirez credit to purchase a vehicle, embarrassing Mr. Ramirez in front of his in-laws. Rather than sue for his injuries alone, Mr. Ramirez filed a class action on behalf some 8,000 others who were also incorrectly listed, even though most of them did not sustain any injury before the error was corrected.

A federal district court certified the class, and a jury awarded damages to each class member based on Mr. Ramirez unique injury. The U.S. Supreme Court vacated that judgment, stating if a person has no concrete harm, he or she has no Article III standing to sue in federal court. It found that about 75% of the purported class had no standing and dismissed their claims. It then sent the case back to the Ninth Circuit to determine whether Mr. Ramirez was typical of the remaining class members, as typicality is a requirement under Rule 23.

In our amicus brief to the Supreme Court, IADC focused on this issue of typicality, explaining that an atypical plaintiff such as Mr. Ramirez cannot front a class action of people who did not suffer any harm, or at least any harm of the same magnitude. Amicus Committee Chair Phil Goldberg wrote the brief, and IADC joined with the National Association of Manufacturers, Alliance for Automotive Innovation, and American Tort Reform Association in filing it.

Click here to read the SCOTUS ruling.

Utah Supreme Court Rules on Pre-Injury Punitive Damage Waivers (7/16/2021)

Earlier this month, the Utah Supreme Court issued its long-awaited decision in doTERRA v. Kruger, 2021 UT 24, a case involving the validity of preinjury punitive damages waivers. Unfortunately, in its opinion, the Court sidestepped the main issue, instead concluding that the particular waiver in the case was unenforceable because it was not “clear and unequivocal.” 

The facts of the case were simple. The plaintiff, Jessica Kruger, suffered burns in a tanning salon. She sued doTERRA, alleging the burns were caused because she had applied a product sold by doTERRA not long before tanning. Kruger sought recovery for her injuries and punitive damages. doTERRA moved for partial summary judgment, contending that Kruger had waived her ability to claim punitive damages in an agreement she had signed with doTERRA when she became a “Wellness Advocate” for the company. 

The trial court concluded that preinjury punitive damages waivers were unenforceable in Utah. doTERRA filed an interlocutory appeal. The IADC submitted an amicus brief, supporting doTERRA’s position that such waivers should be enforceable. 

Ultimately, the Court chose to wait for another day to address the broader enforceability question. Instead, it held that the waiver Kruger signed was not enforceable because the language in it was not sufficiently “clear and unequivocal.”

So, at least for now, the enforceability of punitive damages waivers in Utah remains an open question. 

The IADC would like to thank Lauren DiFrancesco of Greenberg Traurig for her excellent work in authoring the IADC’s amicus brief!

For information on the IADC's amicus brief program and to view past briefs, please visit the Amicus Briefs page on the IADC website.