Randy Beck (University of Georgia School of Law) has posted TransUnion, Vermont Agency and Statutory Damages Under Article III (50 pages) on SSRN. Here is the abstract:
The Supreme Court concluded in TransUnion LLC v. Ramirez that a plaintiff may not sue to collect statutory damages under a statute like the Fair Credit Reporting Act (FCRA) simply because the defendant violated a right Congress conferred on the plaintiff. Instead, Article III requires the plaintiff to show that the statutory violation resulted in a “concrete” injury with “a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” The TransUnion Court made no effort to explain how its conclusion could be reconciled with Vermont Agency of Natural Resources v. United States ex rel. Stevens, where the Court unanimously ruled that Congress may authorize a private qui tam informer to sue for statutory penalties based on a violation of duties owed to the public, even though the informer has not suffered a particularized injury attributable to the defendant’s unlawful conduct.
The Vermont Agency Court closely examined statutes of the first Congress in light of Anglo-American legal history to find qui tam actions compatible with Article III because the framing generation understood them to be “cases and controversies” traditionally resolved through the judicial process. A comparable examination of late eighteenth century federal legislation undermines the majority’s decision in TransUnion, showing that Congress may authorize collection of statutory damages by private litigants who claim no harm beyond the legal injury associated with the defendant’s violation of a statutory duty owed to the plaintiff.
Statutory damages are a modern version of statutory forfeitures available under framing era penal statutes. Blackstone explains that a defendant who violates a penal statute must pay a statutory forfeiture to whoever the legislature specifies, whether an aggrieved party, a public official or a qui tam informer. Examination of early federal statutes shows that, just as Congress awarded forfeitures to uninjured qui tam informers, Congress likewise directed forfeitures to aggrieved parties whose only injury was the defendant’s violation of an individual right protected by statute. By claiming authority to determine whether a plaintiff has suffered a “concrete” or “real” injury warranting litigation to recover statutory damages, the TransUnion Court inverted the framing era relationship between legislatures and courts.
Posted at 6:03 AM