Shook Partner Talia Zucker and Associate Rachel Forman have authored an article for the Washington Legal Foundation’s Legal Pulse detailing a Fourth Circuit ruling on the issue of standing to sue following a data breach. Zucker and Forman discuss Hutton v. National Board of Examiners in Optometry, in which several optometrists alleged that a certification board failed to properly secure their personally identifiable information.
The appeals court held that the optometrists had standing to sue, distinguishing it from a previous case, Beck v. McDonald, in which the same court had decided that plaintiffs could not sue on the basis of “threat of future injury,” the authors explain. The optometrists alleged that the breach resulted concrete harms, including the opening of a credit card in one plaintiff’s name, as well as costs for “mitigating measures to safeguard against future identity theft.”
“Indeed, the Hutton decision reinforces the court’s holding in Beck: that to establish Article III standing, plaintiffs cannot rely on bare allegations of possible future identity theft or personally incurred mitigation costs to protect against the threat of a possible future identity theft. Plaintiffs must go further in their allegations, like was done in Hutton,” Zucker and Forman said.