Article III Standing, the Sword and the Shield: Resolving a Circuit Split in Favor of Data Breach Plaintiffs

The recent proliferation of data breaches is one such event requiring a rethreading of standing doctrine. The Courts of Appeal are currently split on whether to allow or deny standing for data breach plaintiffs—those persons seeking recourse from the entities that fell victim to the breach and therein lost plaintiffs’ data to an unknown third party. Standing requires plaintiffs to show some injury, and how courts approach the concept of injury in these data breach cases determines whether plaintiffs will survive the standing analysis. Despite the disparate treatment of litigants across the circuits, the Supreme Court has repeatedly punted when asked to resolve the issue. Because of the grave importance of data breach plaintiffs’ lost and stolen data, the Court must relinquish its standing shield and hand these litigants a sword to pursue remedy