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.
Two recent federal cases alleging privacy violations in the mobile context have been allowed to proceed based on novel damages allegations. The long-standing presumption that mere exposure of personal data is insufficient for standing and damage actions may become irrelevant if plaintiffs are able to link the exposure to increased costs of device usage.