The biggest question looming over every class-action case filed in response to a data breach is: Will the plaintiffs have standing? The answer has divided courts in recent cases across the country.
Last year, the U.S. Supreme Court held in Spokeo, Inc. v. Robins that Congress could not confer standing to plaintiffs based on a violation of a statute alone.1 Instead, the Court held that, even if a statute has been violated, plaintiffs must prove they have an injury-in-fact and that the injury is both concrete and particularized. Spokeo added a new layer of complexity in pleading standing in data breach cases. Previously, the Supreme Court held in Clapper v. Amnesty International USA that “conjectural” or “hypothetical” injuries were insufficient to confer standing and that harm must be “certainly impending.”2 What Spokeo and Clapper mean in practice for data-breach cases is far from settled.Continue Reading Class Action Standing and Data Breaches: When Is There an Injury-in-Fact?