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By: Amy C. Bender
The ongoing issue of when a plaintiff has grounds (“standing”) in data breach cases saw another development this week when the U.S. Supreme Court declined to weigh in on the debate.
CareFirst, a BlueCross BlueShield health insurer, suffered a cyberattack in 2014 that was estimated to have exposed data of 1.1 million customers. Affected customers filed a federal class action lawsuit in the District of Columbia claiming CareFirst failed to adequately safeguard their personal information. CareFirst asked the court to dismiss the case, arguing that, since the customers had not alleged their stolen personal data had actually been misused or explained how it could be used to commit identity theft, the customers had not suffered an injury sufficient to give them standing to sue and the court therefore lacked jurisdiction to hear the case. The court agreed with CareFirst and dismissed the case. Notably, in this particular breach, CareFirst maintained the hackers had not accessed more sensitive information such as the customers’ Social Security or credit card numbers, and the court found the customers had not alleged or shown how the hackers could steal the customers’ identities without that information. In other words, the mere risk to the customers of future harm in the form of increased risk of identity theft was too speculative.
The customers appealed this decision, and the appellate court reversed, finding the district court had read the customers’ complaint too narrowly. The appellate court reasoned that the customers actually had asserted their Social Security and credit card numbers were included in the compromised data and that they had sufficiently alleged a substantial risk of future injury.
In response, CareFirst filed a petition with the Supreme Court asking it to review the appellate decision. This would have been the first pronouncement on this issue from the high court in a data breach class action lawsuit, a move long-awaited by lower courts, lawyers, and their clients in order to gain more clarity on the application of prior decisions like Spokeo in the specific context of data breach litigation. However, the Supreme Court denied the request (without explanation, as is typical).
As we have reported here and here, courts continue to grapple with the contours of standing in data breach cases. We will continue to monitor and report on developments in this still-evolving area of the law.
If you have any questions or would like more information, please contact Amy Bender at [email protected].