Shook Partner and Chair of the firm’s Data Security and Privacy Practice Al Saikali was quoted in Law360’s article, “7th Circ. Opens Up Path For Cos. To Ditch Data Breach Suits,” which details a potential shift away from plaintiff-friendly rulings on Article III standing in data breach class actions.
"Some will argue that the case continues a trend of plaintiff-friendly decisions in the data breach context in the Seventh Circuit," said Al Saikali. "At a superficial level, this is true. But on a deeper level, the decision will result in a new line of attacks for defendants in these cases and the court's plaintiff-friendly result is far more limited than many realize."
Saikali is referring to the last paragraph of the opinion in Dieffenbach v. Barnes & Noble, Inc., No. 17-2408, in which Justices Diane Wood, Frank Easterbrook and David Hamilton signaled that where state laws and injuries are “disparate” in data breach class actions, the Seventh Circuit may be unlikely to extend its liberal pleading standard for injury at later stages of litigation. The panel said not only that the plaintiffs would have a “difficult task” to show damages, “[i]t is far from clear that this suit should be certified as a class action.” Other observers told Law360 it is possible that the court may believe that data breach cases should not be brought as class actions at all, which may open potential avenues of defense against such cases.