The D.C. Circuit recently widened a significant circuit split regarding standing in data breach cases by overturning a district court’s dismissal of a complaint for lack of standing. See Attias v. CareFirst, Inc., D.C. Cir. No. 16-7108.
Courts have long been occupied by the question of whether the mere fact of having personal information subject to unauthorized acquisition is, in itself, an injury sufficient for standing. Hopes were high that the Supreme Court would resolve the issue in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). In that case, the Supreme Court held that plaintiffs who allege violations of statutes that contain a private right of action and statutory damages must establish not only “invasion of a legally protected interest,” but also that they suffered a “concrete and particularized” harm, in order to satisfy Article III’s standing requirement. Defense counsel were cheered by the restatement of the law of standing, but plaintiffs have argued that Spokeo opened the door for even the most minor of statutory violations even in the absence of quantifiable damage. The Spokeo ruling has had substantial but unpredictable implications for data breach litigation. Federal courts of appeals have subsequently reached different conclusions about how Spokeo applies to allegations of an increased risk of identity theft following a data breach with several circuits overtly splitting over the issue. (more…)