District Court (Cal.) Says FCRA Class Rep. Has Spokeo Standing; Questions Regarding Absent Classmembers’ Spokeo Standing Do Not Defeat Class Certification

In Larson v. Transunion, LLC, 2016 WL 4367253, at *4 (N.D.Cal., 2016), Judge Orrick found Spokeo standing for a FCRA class representative and absent classmembers, and granted class certification.

Given that Larson continues to have Article III standing to bring this case despite Spokeo, Trans Union’ s challenges to my tentative rulings on ascertainability, predominance, and superiority also fail. Each of those challenges is based on Trans Union’s contentions that the class should not be certified because absent class members lack Article III standing for the same reasons as Larson, and, similarly, because individualized determinations will have to be made with respect to the concreteness of each absent class member’s injury. See Trans Union Suppl. Br. at 12-16 (ascertainability); id. at 17-19 (predominance); id. at 19-20 (superiority). In a class action, however, “standing is satisfied if at least one named plaintiff meets the requirements.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007); accord Ellis v. Costco Wholesale Corp., 657 F.3d 970, 978-79 (9th Cir. 2011). Under this principle, Larson’s showing of standing for himself is sufficient to establish standing for the class as a whole. See McLaughlin v. Wells Fargo Bank, NA, No. 15-cv-02904-WHA, 2016 WL 3418337, at *6 n.5 (N.D. Cal. June 22, 2016) (“[P]laintiff borrower has standing to assert her TILA claim; so too does the class.”) (on appeal).   Even if this principle did not apply, I am not convinced that individualized determinations on the concreteness of each absent class member’s injury would be necessary. Article III standing in this case, just like Trans Union’s alleged liability under section 1681g(a), is predicated on the character of the allegedly misleading information in the credit reports disseminated to Larson and absent class members, not on Larson’s or absent class members’ subjective interpretation of that information. See Prior Order at 16-19 (rejecting Trans Union’ s argument that class certification is inappropriate because the case will “require individualized inquiries into whether each class member actually read the relevant portion of his or her file disclosure, and whether he or she was actually confused by it”). Accordingly, even if Larson’s showing of standing for himself did not establish standing for the class as a whole, the concreteness of each absent class member’s injury, just like the question of liability, could still be resolved without individualized inquiries into how each class member responded to his or her credit report.   Trans Union also argues that individualized inquiries will be required to assess statutory damages under section 1681n(a). Trans Union Suppl. Br. at 18-19. The problem with this argument (besides the fact that it has nothing to do with Spokeo and Trans Union did not raise it in the original round of briefing on class certification) is that Trans Union cites no authority indicating that statutory damages under section 1681n(a) cannot be determined based on classwide proof. See Hawkins, 2016 WL 3999458, at *6 (“[P]laintiff and the class seek only statutory damages [under section 1681n(a) ]. Damages can therefore be proven through classwide proof.”). In any event, the Ninth Circuit has made clear that “[t]he presence of individualized damages cannot, by itself, defeat class certification under Rule 23(b)(3).” Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013); see also Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013) (“It would drive a stake through the heart of the class action device … to require that every member of the class have identical damages.”); In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 854 (6th Cir. 2013) (“[N]o matter how individualized the issue of damages may be, determination of damages may be reserved for individual treatment with the question of liability tried as a class action.”) (internal quotation marks omitted).  For these reasons, and for those stated in the tentative class certification ruling in the Prior Order, Larson’s motion for class certification is GRANTED.