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Over the last year or two, the issue of cybersecurity and data breach has skyrocketed to the top of a long list of concerns that keep general counsel up at night. Thus far, much of the data breach litigation has focused on the issue of standing when Personally Identifiable Information (PII) has been accessed, but not yet used. Federal court jurisdiction to hear such cases is limited by Article III of the Constitution to cases or controversies, requiring (among other things) an “injury-in-fact.” Even where courts find standing based on the likelihood of harm from having PII accessed, this may not amount to a compensable injury under state law. Such was the case in both the Seventh Circuit’s 2007 Pisciotta v. Old National Bancorp and Ninth Circuit’s 2010 Krottner v. Starbucks decisions.

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