Law360 Quotes Michelle Reed on Circuit Split in Post-Spokeo Standing Rulings

Law360 has quoted Akin Gump litigation partner Michelle Reed in the article “Horizon, TWC Disputes Sketch Post-Spokeo Lines For Privacy,” which examines a pair of Circuit Court rulings offering opposing views on whether a claimed statutory privacy violation is enough to establish standing under the Supreme Court’s Spokeo ruling. The rulings centered on whether plaintiffs had Article III standing to assert claims under the Fair Credit Reporting Act (FCRA) and the Cable Communications Policy Act following the precedent set last year in Spokeo v. Robins.

The 3rd Circuit, as the article reports, revived a putative class action over a data breach at Horizon Healthcare, saying the plaintiffs did not need to prove that their compromised data was misused but instead could rely on alleged violations of the FCRA to continue with their claims. The 7th Circuit, however, dismissed a proposed class action alleging that Time Warner Cable unlawfully retained former customers’ personal information after finding that the plaintiff had neither alleged nor offered any evidence of concrete harm and that a purported statutory violation wasn't enough to continue.

“What’s significant about these cases is that they are actual concrete interpretations of Spokeo,” said Reed, co-head of Akin Gump’s cybersecurity, privacy and data protection practice. “What you see is courts trying to distinguish between technical violations and violations that result in some sort of concrete injury that gives rise to standing, and what’s interesting about the Horizon case in particular is that it provides a specific case of what is a concrete enough injury and not just a technical violation.”

The split rulings, Reed indicated, could lead some plaintiffs to approach their causes of actions differently in the future. “The Third Circuit case is likely to make it so plaintiffs try to find statutory violations that give them more of a hook based on case law,” she said, adding that the recent trend of more courts finding standing for statutory privacy violations post-Spokeo could be “problematic from a liability perspective” for companies.

Concluding, Reed said, “Given that data breaches are nationwide, plaintiffs have more of an ability to choose the forum, and we may see increased litigation in fora that are more likely to find standing.”