Article III standing is a fundamental precondition to any federal lawsuit. The “first and foremost of standing’s three elements,” in the words of the Supreme Court, is injury in fact: an actual or imminent, and concrete and particularized, invasion of a legally protected interest. Spokeo v. Robins, 136 S. Ct. 1540, 1547-48 (2016). This element, however, is not always analyzed consistently: Two opinions handed down in May and June by the U.S. Court of Appeals for the Second Circuit, in Whalen v. Michaels Stores, and John v. Whole Foods Market Group, appear to apply different principles in interpreting injury in fact. Perhaps as a result of their different analyses, the opinions ordered different appellate dispositions.
‘Whalen v. Michaels Stores’
In April 2014, Michaels Stores confirmed that a cybersecurity breach in its system had resulted in the theft of customers’ information. Whalen v. Michaels Stores, 2017 WL 1556116, at *1 (2d. Cir. 2017).1 But only “payment” information, such as credit card number—and not “personal” information, such as address—”was at risk in connection with this issue.” Mary Jane Whalen had been a customer of Michaels during the period of cybersecurity vulnerability and her credit card was later charged, fraudulently, by a third party in Ecuador. Whalen filed a putative class action against Michaels based on violations of state law.
