Day

August 24, 2017

24 August 2017

Eighth Circuit Rejects Implied Premise that a Hack Is Tantamount to Inadequate Information Security, Ruling Such “ ‘Naked Assertions’ … Cannot Survive a Motion to Dismiss.”

The Eighth Circuit held on August 21 that, in the absence of actual injury in a data breach case, “massive class action litigation should be based on more than allegations of worry and inconvenience.”  The Court found that no customers of the defendant securities brokerage firm had suffered fraud or identity theft resulting in financial loss from a 2013 data security incident.*  Kuhns v. Scottrade, Inc., Nos. 16-3426, 16-3542 (8th Cir. Aug. 21, 2017).

In a decision that is replete with great holdings and quotable language for defendants in data breach litigation, the Eighth Circuit demonstrated that even where constitutional standing is found, plaintiffs will not likely succeed if they can allege no real injury even years after the hack occurred. (more…)

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