Christian & Small Partner Jonathan W. Macklem recently presented as part of a panel discussion on a webinar by The Knowledge Group: “Standing in Data Breach Class Actions: What the Future Holds.” Designed to provide an overview of the latest trends and critical issues surrounding data breach class actions, speakers shared helpful insights on how to analyze standing issues in these cases and offered best practices on how to implement effective data privacy policies to minimize potential liabilities while ensuring compliance with applicable laws.
Some of the major topics that were covered included:
- Understanding the current data breach climate
- Standing and the injury-in-fact requirement
- Notable cases and recent court decisions
- Key issues, considerations and trends; and
- Litigation risks, liabilities and settlement costs
More specifically, Macklem’s presentation included details about the following points:
- To invoke a federal court’s subject matter jurisdiction, plaintiffs must satisfy Article III’s standing requirements, which have been the subject of extensive – and recent – Supreme Court decisions.
- Data breach class actions present novel questions of standing, particularly with respect to whether the putative class has suffered an “injury-in-fact,” which must be “concrete,” “particularized” to the plaintiffs and “actual or imminent.”
- Although standing is necessarily a fact-specific inquiry, it is increasingly clear that a circuit split is developing as to whether allegations of future harm from a data breach are sufficient to confer Article III standing.
- Practitioners must understand common standing arguments and be able to identify and present the facts most likely to inform a court’s decision on standing.