Article III Standing

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As courts have wrestled with standing issues in a variety of kinds of cases, the central question has been whether or not under the standard the U.S. Supreme Court enunciated in the Spokeo case the plaintiff alleged an injury that is sufficiently “concrete.” The Supreme Court remanded the Spokeo case itself to the Ninth Circuit for further proceedings to determine whether the plaintiff’s allegations met the high court’s standard. On August 15, 2017, the Ninth Circuit issued its ruling in the remanded case that the injury the plaintiff alleged was sufficiently concrete to meet the Supreme Court’s test. This ruling could boost plaintiffs as they seek to resist defendants’ efforts for an early dismissal in cases in which plaintiffs are alleging a statutory violation, such as Fair Credit Reporting Act (FCRA) cases, Telephone Consumer Protection Act cases, and Truth in Lending Act cases. The Ninth Circuit’s opinion can be found here.   
Continue Reading Ninth Circuit’s Standing Ruling in Remanded Spokeo Case Could Boost Plaintiffs

In the latest decision in which class action consumer data breach claimants have been successful in establishing the requisite standing to pursue their claims, on August 1, 2017, the D.C. Circuit held that the claimants’ risk of future harm is sufficient to meet Article III standing requirements. This decision is the latest in a growing number of federal circuit decisions finding that data breach claimants have satisfied standing requirements, but it also deepens a circuit split that could mean eventual U.S. Supreme Court review of the issue. The D.C. Circuit’s August 1 opinion in the Attias v. Care First case can be found here.  
Continue Reading Deepening Circuit Split on Data Breach Suit Standing

sixth circuit sealOne of defendants’ most significant arguments in opposing data breach victims’ negligence and breach of privacy claims has been that the claimants that have not suffered actual fraud or identity theft can show no cognizable injury and therefore lack Article III standing to assert their claims. Appellate decisions in the Seventh and Ninth Circuit have previously taken a bite out of this defense, in rulings holding that the victims’ fear of future harm is sufficient to establish standing. Now the Sixth Circuit in a case involving alleged victims of a data breach at Nationwide Mutual Insurance Company has joined these other circuits, holding that the  claimants’ heightened risk for fraud and mitigation costs were sufficient to establish Article III standing. The Sixth Circuit’s September 12, 2016 opinion, which can be found here, represents the latest in a series of developments evincing courts’ increasing willingness to recognize fear of potential future harm as sufficient to establish standing, which in turn may make it easier for the plaintiffs’ claims in these kinds of data breach cases to go forward.
Continue Reading Sixth Circuit: Data Breach Victims’ Heightened Risk of Future Harm Establishes Article III Standing

neimanmarcusIn a ruling that could provide an important boost future consumer data breach class action litigation, the Seventh Circuit has reinstated the Neiman Marcus data breach lawsuit, ruling that the district court erred in concluding that the plaintiffs’ fear of future harm from the breach was insufficient to establish standing to pursue their claims. As Alison Frankel said about the appellate court’s ruling in her July 21, 2015 post on her On the Case blog entitled “The Seventh Circuit Just Made it A Lot Easier to Sue Over Data Breaches” (here), “this is a really consequential decision.” The Seventh Circuit’s July 20, 2015 opinion in the Neiman Marcus case can be found here.
Continue Reading O.K., This Is a Big Deal: 7th Cir. Reinstates Neiman Marcus Consumer Data Breach Class Action