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Into The Breach: D.C. Circuit Weighs in on Circuit Split Regarding Standing in Data Breach Class Actions

The D.C. Circuit recently gave its opinion as to whether pleading an increased risk of future injury is sufficient to establish Article III standing to sue in a data breach class action filed in federal court. The issue has divided federal circuit courts of appeals.

In answering in the affirmative, the D.C. Circuit joined the view of the Sixth, Seventh, and Eleventh Circuits. Compare Attias v. CareFirst, Inc., — F.3d —-, No. 16-7108, 2017 WL 3254941 (D.C. Cir. Aug. 1, 2017), with Resnick v. AvMed, Inc., 693 F.3d 1317 (11th Cir. 2012); Galaria v. Nationwide Mut. Ins. Co., 663 Fed. Appx. 384 (6th Cir. 2016) (unpublished); Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963 (7th Cir. 2016); and Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688 (7th Cir. 2015).  In Attias, the plaintiffs did not allege that they had suffered identity theft as the result of a hacking incident involving a system containing their data.  The defendant argued that the mere threat of future harm was too speculative to give rise to standing.  But the D.C. Circuit held that it was plausible that the unauthorized party had “the intent and the ability to use [the] data for ill” and thus that the plaintiffs had jurisdictional standing at least at the pleading stage. Id. at *1, *5-*6.  Notably, the standing issue arises under Fed. R. Civ. P. 12(b)(1) as an issue of subject matter jurisdiction. The D.C. Circuit did not otherwise decide whether the plaintiffs’ allegations stated a claim that could withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6), allowing the district court the opportunity to first review the question.

By contrast, the Second and Fourth Circuits have held that data breach plaintiffs lack standing where they plead nothing more than an increased risk of future injury. See Whalen v. Michaels Stores, Inc., — Fed. Appx. —-, No. 16-260, 2017 WL 1556116, at *1 (2d Cir. May 2, 2017) (unpublished); Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017), cert. denied sub nom., Beck v. Shulkin, No. 16-1328, 2017 WL 1740442 (U.S. June 26, 2017).

Notwithstanding the circuit court split, the United States Supreme Court has yet to grant certiorari to review the issue.

Copyright 2020 K & L GatesNational Law Review, Volume VII, Number 226


About this Author

Andrew Glass, KL Gates Law Firm, Financial Litigation Attorney

Mr. Glass is a partner resident in K&L Gates’ Boston office, and a member of the firm's Consumer Financial Services Litigation and Class Action Litigation Defense groups, with extensive experience in complex commercial litigation. Mr. Glass's practice focuses on the defense of federal and state class action litigation brought against consumer financial services, mortgage lending, and consumer credit institutions. These class actions concern challenges under federal statutes, including the Fair Housing Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Real...

David Christensen, KL Gates, Financial Law and Commercial Litigation Attorney

David Christensen is a partner in the Boston office of K&L Gates and has extensive experience in complex commercial litigation. Mr. Christensen concentrates his practice in consumer finance litigation matters and is a member of the firm’s Financial Institution and Services Litigation group and the Class Action Litigation Defense group. Mr. Christensen has experience representing mortgage lenders and servicers, banks, and other financial institutions in suits involving claims under various federal and state consumer statutes, including the Truth in Lending Act, the Real Estate Settlement Procedures Act, the Fair Debt Collection Practices Act, the Equal Credit Opportunity Act, the Fair Housing Act, the Fair Credit Reporting Act, the Racketeer Influenced and Corrupt Organizations Act, the Servicemembers Civil Relief Act, and the Americans With Disabilities Act, as well as suits based on the Treasury’s Home Affordable Modification Program.

Matthew N. Lowe, KL Gates, financial services litigation attorney, class action lawyer

Mr. Lowe concentrates his practice in general civil and commercial litigation matters, with an emphasis in financial services litigation and class action litigation defense. He also has experience representing clients in the areas of product liability and toxic tort defense. 

Mr. Lowe represents a variety of corporate and individual clients in federal and state courts throughout the United States, including Massachusetts, California, Maryland, New York, Virginia, Illinois, New Jersey, and Missouri. He has experience representing mortgage lenders...