From left: David J. Oberly and Jeffrey N. Rosenthal of Blank Rome.
Data breaches continue to grow at torrid pace, often spurring consumer class action litigation in their wake. And successful data breach litigation can empty a corporate defendant’s coffers. Take, for instance, the $575 million deal Equifax recently reached to settle class litigation stemming from its 2017 mega-breach that impacted over 100 million individuals. Consequently, companies handling consumer personal information must be prepared to forcefully defend such high-stakes litigation.
Fortunately, Article III standing serves as a viable defense to obtain dispositive dismissals from a wide range of data breach class actions in federal court. While a current circuit split exists over the threshold for establishing standing in such cases, the U.S. Court of Appeals for the Third Circuit recently articulated a middle-of-the-road standard that provides a significant opportunity for defendants to completely dispose of litigation at the pleading stage based on an absence of constitutional standing.
