Sharon Thomas Named Best Lawyers® 2022 Energy Law "Lawyer of the Year" in Oklahoma City!

Sharon Thomas has been named the Best Lawyers® 2022 Energy Law "Lawyer of the Year" in Oklahoma City! Attorneys recognized by Best Lawyers® are peer-nominated and selected. Sharon has been helping our clients achieve positive outcomes as The Rudnicki Firm’s Appellate Counsel since the firm opened in 2017.

 Practicing law for almost 40 years, Sharon is one of the most accomplished and respected appellate attorneys in Oklahoma. She is known for her exemplary briefs and legal writing. Sharon’s expertise also includes environmental and oil and gas law, and she has dozens of appellant opinions published. Read more about Sharon here.

 We are so proud of Sharon and look forward to her future wins!

SCOTUS Reverses Ninth Circuit & Holds Class Action Plaintiffs Lack Standing To Bring FCRA Claims Against TransUnion

On Friday, June 25, 2021, in a 5-4 decision, the United States Supreme Court reversed the Ninth Circuit and held the majority of the nearly 8,200 members of a certified class seeking claims under the FRCA against TransUnion lacked Article III standing because they had not demonstrated concrete injury. TransUnion, LLC v. Ramirez, No. 20-297, 2021 WL 2599472 (U.S. June 25, 2021).

Plaintiffs, a certified class of 8,185 members, initially filed suit in the Northern District of California, alleging violations of the Fair Credit Reporting Act (FRCA) against TransUnion, a credit reporting agency, for mistakenly labeling plaintiffs as “potential terrorists” in their credit files. The case went to trial, where the jury returned a verdict in favor of plaintiffs, awarding nearly $8 million in statutory damages and $52 million in punitive damages. TransUnion appealed to the Ninth Circuit Court of Appeals, who affirmed the district court’s holding that all of the class members had standing.[1] TransUnion again appealed and the Supreme Court granted certiorari. Several business organizations, including Facebook, Google, and eBay, filed amicus briefs supporting TransUnion’s position and urging the Supreme Court to narrow the types of privacy suits in which Article III standing is established.

In a 5-4 decision authored by Justice Kavanaugh, the Supreme Court held the majority of class members lacked standing for failure to demonstrate a concrete harm as to the “reasonable procedures” claim under the FRCA. In so holding, the Court emphasized that only 1,853 of the class members had their inaccurate reports actually disclosed to a third party. For the remaining 6,332 members, “[t]he internal [TransUnion] files were not provided to third-party businesses during the relevant period.” Id. at *3.

As stated succinctly by the Court: “No concrete harm, no standing.” Id. at *15.

The Court acknowledged its precedent that “risk of future harm can satisfy the concrete-harm requirement,” but noted that the risk must be “sufficiently imminent and substantial.” Id. at *12. As such, the Court concluded that the 6,332 plaintiffs had not demonstrated materialization of the risk of future harm because (1) their reports were not provided to third parties, and (2) they had not demonstrated any damage resulting from future risk, such as emotional harm, especially where it is unclear the majority of the 6,332 plaintiffs ever even knew of the inaccurate designations prior to the lawsuit. As a result, the Court concluded that all but 1,853 of the members lacked standing with regard to the reasonable procedures claim.

Further, with regard to the plaintiffs’ two additional claims regarding formatting defects in the reports, the Court held that none of the class members—except for representative Ramirez—had demonstrated the defects caused them concrete harm. Therefore, the Court held that all members except Ramirez also lacked standing as to those claims. In light of the Court’s holding regarding standing, the Court further noted the Ninth Circuit could consider in the first instance the appropriateness of class certification.

Justice Thomas wrote a scathing dissent, joined by three of the more liberal members of the Court. Thomas concluded his heated rejection of the majority opinion:

Ultimately, the majority seems to pose to the reader a single rhetorical question: Who could possibly think that a person is harmed when he requests and is sent an incomplete credit report, or is sent a suspicious notice informing him that he may be a designated drug trafficker or terrorist, or is not sent anything informing him of how to remove this inaccurate red flag? The answer is, of course, legion: Congress, the President, the jury, the District Court, the Ninth Circuit, and four Members of this Court.

Justice Kagan joined in Thomas’s dissent but also wrote separately, noting one qualification of her view with regard to overriding Congress’s authorization to sue.

The Court’s ruling in TransUnion v. Ramirez presents great implication in the uptick of legal claims alleging violation of privacy and consumer protection laws. For example, a pending Eleventh Circuit case, Hunstein v. Preferred (highlighted by The Rudnicki Firm last month), may be impacted by the Supreme Court’s ruling. There, a Petition for Rehearing is pending with regard to alleged violations of the FDCPA for disclosure of debt information to a third-party vendor only for printing and mailing to the debtor. The Court’s holding in TransUnion presents new considerations for the Eleventh Circuit in determining whether providing information to a third-party vendor only for printing and mailing to the debtor himself constitutes a concrete harm to establish Article III standing. Based upon the Court’s holding in TransUnion, the party petitioning for rehearing in Hunstein, a debt collection agency, can argue that provision of such information to a vendor only for the furtherance of the agency’s own collection efforts does not constitute disclosure giving rise to concrete harm to the plaintiff.

More information regarding the application of TransUnion will be forthcoming. Check The Rudnicki Firm’s online alerts to monitor the Court’s decision with regard to rehearing and any additional information on this case.

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[1] The Ninth Circuit reversed and remanded the jury’s award of punitive damages, however, finding the ratio to statutory damages to be unconstitutionally excessive.

EEOC Updates COVID-19 Vaccination Guidance for Employers

On Friday, May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its “What You Should Know” page relating to COVID-19 and the ADA and other related equal employment opportunity laws. The new section K, “Vaccinations,” of this EEOC guidance provides information to employers navigating the interplay between pro-vaccination endeavors and various legal safeguards in the workplace.

I.                Requiring Vaccinations in the Workplace and Reasonable Accommodations

            The EEOC notes that the availability of COVID-19 vaccinations brings to light concerns under the ADA, the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act. The EEOC stated that, generally, employers are not prevented by law from requiring all employees physically present in the workplace to be vaccinated, so long as reasonable accommodations are made in accordance with Title VII and the ADA. In order to determine whether an accommodation must be made, the employer will need to undergo an analysis considering (1) the employee’s reason for abstention from the vaccine (either disability or religion) and (2) any undue burden on the business. This is a fact-intensive inquiry that should be conducted with the assistance of legal counsel.

As a general note, an employer should accept an employee’s claim of religious belief, except in exceptional circumstances. An employee’s pregnancy may require accommodation under Title VII in order to prevent discrimination. If an employer has reason to doubt an employee’s claim for accommodations, the employer should consult with legal counsel before taking additional steps.

The EEOC provided a few examples of accommodations that might be made for those unable to obtain a vaccination due to disability or religious belief: wearing a face mask, social distancing, modified work shifts, periodic testing, telework, or reassignment. Of course, an employer’s vaccine requirement cannot be implemented in such a way that would disproportionately affect a group of employees based on their race, religion, sex, or national origin. As such, considerations such as accessibility to the vaccine by certain communities should be considered.

Under the ADA, it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation.

II.             Confidentiality

Employers choosing to have vaccines administered to employees by the employer or its agent should ensure they are complying with ADA requirements governing “medical examinations” by employers.

Employee medical information, such as documentation or other confirmation of vaccination is confidential under the ADA and must be stored separately from the employee’s personnel files. However, inquiring as to whether an employee obtained a COVID-19 vaccine from a third-party in the community is permitted by law and is not a “disability-related inquiry” under the ADA.

III.           Encouraging Employees and their Families to Get Vaccinated

Employers can provide incentives, including both rewards and penalties, to employees to get vaccinated, provided those incentives are no coercive.

The EEOC stated that employers may provide education materials regarding the COVID-19 vaccine to employees and their families. An employer may not offer incentives for the vaccination of an employee’s family member, as such incentive would require the disclosure of the family member’s information in violation of GINA.

Educational materials may include information on vaccination sites, reasonable accommodations, alternative ways to book a vaccine appointment (besides internet access), and low-cost transportation to appointments. Notably, as of May 2021, the federal government is providing vaccines at no cost everyone ages 12 years and older.

 The Rudnicki Firm continues to monitor these developments and will be available employers for questions and guidance in complying with EEOC’s new guidance on COVID-19 vaccinations.