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The Standing Struggle in Data Breach Litigation Continues

By Dena M. Castricone on March 9, 2018
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Two courts. Two days.  Two different results.  On March 7, on remand from the U.S. Court of Appeals for the Eighth Circuit, a federal district court judge in Minnesota granted a motion to dismiss a consumer class action suit involving a 2014 data breach affecting over 1,000 grocery stores.  The court found that the allegations of possible future identity theft or fraud because of the breach were not sufficient to establish a substantial risk of future harm.

The next day, the U.S. Court of Appeals for the Ninth Circuit reached an opposite result, further highlighting the split among courts on the issue of standing in data breach litigation. The Ninth Circuit reversed the dismissal of a consumer class action claim against Zappos for a 2012 data breach involving the payment card information of nearly 24 million customers.  The court concluded, as it has in the past, that the risk of future identity theft or fraud tied to the data breach meets standing requirements.

Due to the U.S. Supreme Court’s recent refusal to grant certiorari in Attias v. CareFirst, we are likely to see the divide deepen as plaintiffs’ class action lawyers find ways to file suit in jurisdictions offering more plaintiff-friendly interpretations of Article III standing. For a more in-depth discussion of the standing issues, see our Jan. 22, 2018 post.

Photo of Dena M. Castricone Dena M. Castricone

Dena M. Castricone, CIPP/US is the chair of the Privacy and Cybersecurity group and a member of the Long Term Care and Health Care groups.  She also serves as Chair of the firm’s Women Expanding Business initiative and co-chair of the firm’s Pro…

Dena M. Castricone, CIPP/US is the chair of the Privacy and Cybersecurity group and a member of the Long Term Care and Health Care groups.  She also serves as Chair of the firm’s Women Expanding Business initiative and co-chair of the firm’s Pro Bono Committee.  Prior to joining Murtha Cullina, Dena served as a law clerk to the Chief Justice of the Rhode Island Supreme Court, Frank J. Williams.

As the Chair of the Privacy and Cybersecurity group and a Certified Information Privacy Professional (CIPP/US), Dena provides the full complement of data breach coaching services to business and health care clients including breach notification to individuals and various government entities.  Related to data breaches, she also counsels clients on the creation of information security, incident response plans and other proactive measures.  Additionally, Dena advises clients on compliance with state, federal and international privacy laws including the General Data Protection Regulation (GDPR) and the Health Insurance Portability and Accountability Act (HIPAA) as well as many others. Dena has written extensively on privacy and cybersecurity issues and she is the Co-Editor of Privacy and Cybersecurity Perspectives.  Read More

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  • Posted in:
    Privacy and Cybersecurity
  • Blog:
    Privacy and Cybersecurity Perspectives
  • Organization:
    Murtha Cullina LLP
  • Article: View Original Source

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