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In putative privacy class action Hodges v. Comcast Cable Communications, LLC, involving  Comcast’s privacy and data-collection practices, Comcast moved to compel arbitration based on its subscriber agreement.  The district court denied the motion based on California’s McGill rule, which may invalidate arbitration agreements that purport to waive the right to seek public injunctive relief in any forum.…
Continue Reading Ninth Circuit Narrowly Defines “Public Injunctive Relief” in Privacy Case, Limiting Plaintiffs’ Ability to Circumvent Arbitration Agreements.

On April 24, 2019, the Supreme Court issued its opinion in Lamps Plus, Inc., et al. v. Varela, addressing the question of whether an ambiguous arbitration agreement can be read to compel class arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (2000). Underscoring the controversial nature of this decision, the case was decided by a 5-4 split that included dissenting opinions authored by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The majority opinion, authored by Chief Justice Roberts, held that contract ambiguity did not suffice to compel class arbitration.
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Continue Reading U.S. Supreme Court Affirms the Necessity of Express Authorization for Class Arbitration

As many data breach litigation cases have demonstrated over recent years, the question of a plaintiff’s standing can be quite important to the outcome of each case.  While the Supreme Court has addressed standing issues in several cases with potential applicability in the data breach litigation context, most recently in Spokeo, Inc. v. Robins and Clapper v. Amnesty International, the Court has not yet addressed head-on the question of standing requirements for plaintiffs in data breach litigation.  More recently, a cert petition in another data breach standing case (In re Zappos.com), discussed below, has been distributed for conference this Friday, December 7, 2018.  As the Court considers whether to grant cert and address this issue, this post provides an overview of the circuit split on standing in data breach litigation cases and efforts to convince the Court to revisit the issue and provide more precise guidance. …
Continue Reading Standing Issues in Data Breach Litigation: An Overview

On September 26, 2018, New Jersey federal district judge Madeline Cox Arleo dismissed an eight-count class action complaint in its entirety against three smart TV makers: Samsung, LG, and Sony.  The plaintiffs alleged that defendants’ smart TVs continuously monitored and tracked their viewing habits, recorded their voices, and then transmitted that information to defendants’ servers,…

On December 1, 2017, the High Court of England and Wales found the fourth-largest supermarket chain in the UK, Wm Morrisons (“Morrisons”), vicariously liable for a data breach caused by the intentional criminal actions of one of its employees, namely the leaking of payroll information online.

The breach affected almost 100,000 Morrisons employees and the action, brought by 5,518 former and current employees, is considered to be the first of its kind in the United Kingdom. The data compromised in the breach included personal data such as names, addresses, and bank account details.

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Continue Reading English High Court Finds Supermarket Liable for Data Breach by Employee in First Successful Privacy Class Action

Customers’ allegations that they face a substantial risk of identity theft as a result of a 2014 data breach are sufficiently plausible to allow their suit against health insurer CareFirst to proceed, the U.S. Court of Appeals for the D.C. Circuit held in an August 1 decision.

CareFirst discovered in April 2015 — and announced a month later — that an unknown intruder had gained access in June 2014 to a database containing personal information about CareFirst’s customers.  Seven customers then brought a class-action lawsuit against CareFirst in the federal district court in Washington, D.C., alleging among other things that CareFirst was negligent in protecting customer data, and that customers as a result faced an increased risk of identity theft.

The district court dismissed the suit, finding that the plaintiffs had not alleged that hackers had accessed the plaintiffs’ social security numbers or credit card information, and that the risk of hackers stealing the plaintiffs’ identities without such information was too speculative to satisfy the requirements of Article III of the U.S. Constitution, which requires that federal courts hear only actual “cases or controversies.”  The Supreme Court has held that this requirement bars lawsuits where the plaintiffs have not alleged that they have suffered or imminently will suffer a concrete injury.…
Continue Reading D.C. Circuit: Data Breach Plaintiffs Plausibly Allege ‘Substantial Risk’ of ID Theft Sufficient to Support Standing

On Monday, the U.S. District Court for the District of Kansas ruled that the named plaintiff for a putative class of CareCentrix employees whose personal information was compromised had alleged enough harm for standing under Spokeo, Inc. v. Robins.  The case is Hapka v. CareCentrix, Inc.

In early 2016, a phishing attack compromised…

The Supreme Court released its highly anticipated decision yesterday in Spokeo, Inc. v. Robins, which addresses whether plaintiffs have standing to pursue statutory damages even in the absence of actual harm under the Fair Credit Reporting Act (“FCRA”).  As we previously reported, the case was expected to have significant down-stream implications for standing in privacy class action litigation, because numerous privacy-related federal laws have been construed to allow statutory damages even in the absence of actual injury (e.g., the Telephone Consumer Protection Act).…
Continue Reading Supreme Court Issues Highly Anticipated Spokeo Decision

Last week, the Seventh Circuit handed down another friendly ruling for data breach class action plaintiffs, reversing a district court’s dismissal of a class action complaint over a 2014 data breach at P.F. Chang’s restaurants.  In reversing the district court’s holding that the plaintiffs had not demonstrated Article III standing, the Seventh Circuit ruled that the risk of future fraudulent charges and identity theft created by the breach as reported by P.F. Chang’s constituted a “certainly impending” future injury sufficient to confer Article III standing.  This decision builds on an earlier ruling from the Seventh Circuit that revived a data breach suit filed against Neiman Marcus, and will create further incentives for future plaintiffs to file data breach class action lawsuits in the federal courts of Illinois, Indiana, and Wisconsin, when jurisdictionally possible.
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Continue Reading Seventh Circuit, Relying on Defendant’s Post-Breach Statements, Allows Data Breach Class Action to Proceed

A federal judge in the Northern District of Illinois has denied Neiman Marcus Group LLC’s (“Neiman”) motion to dismiss a consumer class action lawsuit arising from a December 2013 data breach at the retailer that exposed about 350,000 credit cards.  As we previously reported, the plaintiffs sued Neiman alleging various claims arising from fraudulent…