October 25, 2021

Volume XI, Number 298


October 22, 2021

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Wait, What?! Ninth Circuit Affirms Dismissal of Data Breach Litigation for Deficient Damages Allegations

At CPW we’ve been giving our readers comprehensive coverage of rulings in the realm of data breach litigation.  For a reminder of the current Article III standing split in the data breach context and some other decisions, check out our prior posts herehere, and here.  Well, last week, in a break with a recent streak of plaintiff-friendly rulings, the Ninth Circuit recently sided with a defendant in affirming that a plaintiff had failed to adequately allege damages in a data breach litigation.  Read on below to find how it all went down.

In Pruchnicki v. Envision Healthcare Corp., No. 20-15460, 2021 U.S. App. LEXIS 11699 (9th Cir. Apr. 21, 2021), the Ninth Circuit considered the Plaintiff’s appeal of the district court’s dismissal of her claims against several healthcare corporations for a third party data breach.  The Complaint had asserted claims for negligence, breach of implied contract, negligent misrepresentation, and violation of Nevada Revised Statutes § 41.600 (deceptive practices).  Plaintiff claimed four “injuries” in support of her claim: (1) lost time spent reviewing consumer credit reports, obtaining new credit cards, checking financial accounts, and answering an increased number of “spam” calls; (2) emotional distress, including “stress, nuisance, and annoyance” from dealing with the effects of the breach, “worry, anxiety, and hesitation” when applying for new credit cards, and concern that “damage to her creditworthiness could impact her ability to obtain credit for her business”; (3) “imminent and certainly impending injury flowing from potential fraud and identity theft”; and (4) “diminution in value of [her] personal and financial information.”

Does this sound inadequate to you to support a claim?  The Ninth Circuit certainly thought so.

The district court found that the Plaintiff’s allegations were sufficient for standing purposes, but did not state a claim for compensable damages.  The Ninth Circuit agreed, finding that each of the four categories of injury the Plaintiff claimed was insufficient.  The Court noted that lost time did not constitute compensable damages, and the amended complaint did not plead physical injury or any other necessary components of an emotional distress claim.  The Ninth Circuit also observed that the Plaintiff had not sufficiently pled that her personal information lost value or had actually been stolen, and that the controlling law did not allow for recovery of speculative damages.

This is a critical ruling for any defendant litigating a data breach, especially in the Ninth Circuit.  For more developments in this area, stay tuned.  CPW will be there.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 116

About this Author

Christina Lamoureux Litigation Attorney Squire Patton Boggs Washington DC

Christina Lamoureux is an associate in the Litigation Practice in the Washington DC office. She represents a wide variety of clients in complex commercial matters.


  • District of Columbia, 2020

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Kristin L. Bryan Litigation Attorney Squire Patton Boggs Cleveland, OH & New York, NY
Senior Associate

Kristin Bryan is a litigator experienced in the efficient resolution of contract, commercial and complex business disputes, including multidistrict litigation and putative class actions, in courts nationwide.

She has successfully represented Fortune 15 clients in high-stakes cases involving a wide range of subject matters.

As a natural extension of her experience litigating data privacy disputes, Kristin is also experienced in providing business-oriented privacy advice to a wide range of clients, with a particular focus on companies handling customers’ personal data. In this...