The proliferation of data breach cases in Florida courts has focused on Article III standing. To meet the pleading standard under Article III, a plaintiff must allege sufficient facts to show the injury-in-fact is concrete, particularized, actual, and imminent, not conjectural or hypothetical. An allegation of imminent injury may suffice if the threatened injury is “certainly impending” or there is a “substantial risk” harm will occur, as in Clapper v. Amnesty International USA, 568 U.S. 398, 414 n.5 (2013). The injury alleged also must be “fairly traceable to the challenged action of the defendant,” see Resnick v. AvMed, 693 F. 3d 1317 (11th Cir. 2012). A showing that a plaintiff’s injury is indirectly caused by a defendant’s actions satisfies the fairly traceable requirement under Resnick. However, allegations of possible future injury are not sufficient. Eleventh Circuit data breach cases such as Resnick established the legal principle that a plaintiff who alleges only speculative, not actual, identity theft will not have standing.
Florida cases continue to maintain this threshold for standing. In Stapleton on behalf of C.P. v. Tampa Bay Surgery Center, 2017 WL 3732102 (M.D. Fla. Aug. 30, 2017), a hacker breached a surgery center’s database and published 142,000 patients’ sensitive information online. The plaintiffs did not allege that any of the sensitive information was used. Instead, they alleged they were at an increased risk of having their identity stolen and were forced to incur credit monitoring/identity theft protection costs. After the data breach, the center provided free identity protection services to the plaintiffs and other potentially affected patients.
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