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Barrett Would Bring Mixed Record to Data Breach Injury Fight


U.S. Supreme Court nominee Amy Coney Barrett is expected to take a measured approach to the circuit-splitting debate over what harm is necessary to press data breach cases if she joins the high court, with her mixed record on constitutional standing signaling that she's unlikely to favor one side.


The middle ground, where plaintiffs assert that a breach occurred and they had to take steps such as signing up for credit monitoring, is "where we've seen most of the split on whether this type of injury is concrete, particular and tangible enough," according to Ana Tagvoryan, vice-chair of the corporate litigation practice group and chair of the privacy class action defense team at Blank Rome LLP.

"As far as this type of injury is concerned, it's very tricky, given that most times plaintiffs don't allege a consumer protection statute violation that requires economic loss but instead advance more of a negligence claim," Tagvoryan said.

Given Judge Barrett's existing body of work on the standing issue and her embrace of the judicial philosophy of the late Justice Antonin Scalia, for whom she clerked, the high court nominee would likely give significant weigh to not only the concreteness of the alleged injury, but also whether the purported harm was likely to be redressed by a favorable judicial decision — a standard that clearly wasn't met in the FDCPA case involving Madison Avenue Associates, Tagvoryan noted.


Should Judge Barrett join the high court, having a statute on the books that permits consumers to seek redress for data breach harms may be enough to convince her and a majority of her colleagues that the claims pass the subjective Spokeo test for concreteness, particularly given her stance in the TCPA case from earlier this year that an alleged injury over unwanted texts was the exact harm that Congress intended to curb by enacting the law, according to Tagvoryan.

"The fact that the California Legislature identified the particular harm for which consumers can bring a private right of action, and said that bare violations of the law's procedural requirements aren't enough to bring lawsuits, will make it hard for any justice to say that's still a procedural violation because your identity wasn't stolen, if the case is filed in federal court," she said.

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“Barrett Would Bring Mixed Record to Data Breach Injury Fight,” by Allison Grande was published in Law360 on October 2, 2020.