Exploring the bounds of concreteness and traceability following the Supreme Court’s landmark decision in TransUnion LLC v. Ramirez, the Sixth Circuit in Krueger v. Experian, et al. recently reversed a grant of summary judgment in favor of a lender in a Fair Credit Reporting Act (FCRA) case, finding that the plaintiff had a sufficiently concrete injury to support Article III standing.
Most of the facts of Krueger are familiar to FCRA litigants. Krueger obtained a bankruptcy discharge, but his mortgage lender thereafter continued to report his loan as “past due,” even though there was no amount “past due” because of the discharge. When the lender failed to update its reporting in response to Krueger’s disputes, he sued his lender for violating the FCRA.
What makes the case unique is the nature of Krueger’s alleged damages. Krueger did not contend that he was denied credit or offered credit on less favorable terms because of the inaccurate information, or any other classic harm typically suffered by plaintiffs burdened with inaccurate information on their credit reports. Rather, the evidence was that Krueger’s “low credit score caused him to abandon his plans to buy a new car.” On these facts, the District Court granted summary judgment for the lender finding that Krueger lacked an injury that was sufficiently concrete to satisfy Article III.
Citing Ramirez, the Sixth Circuit reversed, finding a sufficiently concrete injury on these facts, and further found that Krueger’s alleged damages were fairly traceable to the alleged FCRA violation even though it was Krueger himself who chose not to apply for a car loan. As to traceability, the Sixth Circuit observed that “a plaintiff’s role in his injury destroys traceability only when the injury is so ‘completely due to the plaintiff’s own fault as to break the causal chain,’” and Krueger’s failure to apply for a car loan that he thought would have a higher interest rate did not make him “at fault.”
In addition to exemplifying how concreteness has nothing to do with damages that are either nominal or not easily quantifiable – after all, how do you quantify the damage of having to drive an old rather than a new car for a period of time – the Sixth Circuit in Krueger was willing to find concreteness and traceability absent any evidence that any third party ever saw the adverse credit information, much less acted on it. In that way, this decision stands in stark contrast to Ramirez, where the Supreme Court refused to find a concrete injury when the allegedly defamatory statements were never seen by third parties, as opposed to simply residing on computer systems.
While in isolation Krueger may be viewed as unremarkable, it exemplifies what will continue to be pitched battles over the scope of Article III’s concreteness and traceability requirements, as litigants get more creative in how to plead and prove up their damages cases in the wake of Ramirez, and the same disparate viewpoints that marked Ramirez’s 5-4 decision play out in District and Circuit Courts throughout the country.
The case is Krueger v. Experian Information Solutions, Inc., 2021 WL 4145565 (No. 20-2060, 6th Cir., September 13, 2021)