Bloomberg Law Speaks to Shook Partner on Data Breach Harm Circuit Split
Partner Al Saikali, Chair of Shook's Privacy and Data Security Practice, was interviewed by Bloomberg Law for its February 15, 2018 article, "Supreme Court Has Chance to Resolve Data Breach Harm Circuit Split." The U.S. Supreme Court was scheduled to decide whether to accept an appeal by health insurer CareFirst Inc. on how much harm stemming from a data breach is needed to support a consumer lawsuit. According to Bloomberg, federal courts have struggled with how to apply the Court's Spokeo ruling that plaintiffs must allege a harm that is “actual or imminent,” rather than speculative, to establish standing. The issue is particularly challenging in data breach cases, leading federal circuit courts to issue conflicting opinions.
Saikali said there is a clear “divide between some circuits that believe a mere risk of harm at some undetermined point in the future is sufficient to meet the standing requirement, and other circuits that require actual harm for standing to exist.” The Supreme Court likely "believes that the law is still in a state of constant change, which it is, and they may want to see more solidification of the split before weighing in," he said.
On February 20, 2018, the Supreme Court did deny a writ of certiorari in the case, CareFirst, Inc., v. Attias, No. 17-641 (docketed November 1, 2017).