The U.S. Court of Appeals for the Eighth Circuit has become the latest appellate court to enter the contested debate over Article III standing in data breach litigation. The Eighth Circuit held that 15 of 16 named plaintiffs who never alleged they had suffered identity theft or incurred fraudulent charges on their payment cards did not have standing to pursue claims based on alleged risk of future harm in the multidistrict action In re SuperValu, Inc. Customer Data Security Breach Litigation. The Eighth Circuit’s opinion comes on the heels of other decisions that found risk of future harm following a data breach sufficient to confer Article III standing on class action plaintiffs.
The six-year fight over the type of harm a plaintiff must allege to satisfy the “injury in fact” requirement for lawsuits alleging false reporting of credit information took its latest turn this week. On Tuesday, August 15, 2017, the U.S. Court of Appeals for the Ninth Circuit, on remand from the United States Supreme Court, issued its opinion- hyperlink to the opinion] in Spokeo, Inc. v. Robins, a highly-watched case challenging whether a plaintiff can satisfy Article III standing based solely on a technical violation of the Fair Credit Reporting Act. Plaintiff Thomas Robins brought a putative class action for willful violations of the FCRA against Spokeo, Inc., a company that generates profiles about people based on publicly available data. Among other things, Robins averred that Spokeo published an allegedly inaccurate profile about him on its website and therefore harmed his employment prospects at a time when he was out of work. The Ninth Circuit’s three-judge panel held that the publication of materially inaccurate information about Robins sufficed as concrete injury for purposes of Article III standing, even without specific allegations of tangible harm from that publication.
In a move counter to the trending precedent in data breach litigation, the U. S. Court of Appeals for the Seventh Circuit ruled on July 20 that data breach plaintiffs whose personal information was potentially exposed in a confirmed hacking breach of a major retailer’s network alleged enough risk of harm to meet the standing requirements of Article III of the U.S. Constitution. Plaintiffs’ lawyers will herald this decision, but standing is only the first of many hurdles data breach plaintiffs must cross to proceed to the merits in data breach litigation.