Lessons Learned From Eleventh Circuit’s Dismissal of Data Breach Suit Alleging Only Increased Risk of Future Harm for Lack of Article III Standing
In the context of data breach class action litigation, the question of whether Article III standing can be satisfied is often dispositive of the outcome of an action. However, a deep circuit split currently exists between the federal appellate courts regarding the level of proof required to establish standing in data breach class actions— particularly as it relates to demonstrating a sufficiently “concrete” injury-in-fact and whether allegations of an increased risk of future identity theft are sufficient to satisfy this aspect of the standing test.
Just recently, the Eleventh Circuit Court of Appeals weighed in on the issue and held that an increased risk of future identity theft faced by data breach victims, without more, does not satisfy the injury-in-fact prong of the standing analysis.
In addition to widening the current circuit split, the Eleventh Circuit’s opinion also provides in-house counsel and privacy attorneys with several key lessons both on how to properly respond to breach incidents and effectively defend against the class action litigation that is often generated in the aftermath of a breach incident.
The case is Tsao v. Captiva MVP Rest. Partners, LLC, 986 F.3d 1332 (11th Cir. 2021).
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“Lessons Learned From Eleventh Circuit’s Dismissal of Data Breach Suit Alleging Only Increased Risk of Future Harm for Lack of Article III Standing,” by David J. Oberly was published in the ABA TIPS Cybersecurity & Data Privacy Committee Newsletter (Spring 2021). Reprinted with permission.