Fourth Circuit To Plaintiffs: “Could” Isn’t Enough For Standing
Matthew J. Siegel of Cozen O’Connor writes:
A split continued to develop in the federal courts last month as the Fourth Circuit denied Article III standing to the plaintiffs in a data breach case whose alleged injuries were limited to the increased risk of future identity theft and the cost of measures to protect against it. The Fourth Circuit joins the First and Third Circuits in rejecting this theory as grounds for standing, finding it too great of a stretch. In contrast, the Sixth, Seventh and Ninth Circuits have all recognized in certain circumstances that, at the pleading stage, plaintiffs can establish an injury-in-fact based on possible future injury.
In the Fourth Circuit case, Beck v. McDonald, No. 15-1395 (4th Cir. Feb. 6, 2017), veterans in two consolidated cases alleged that the William Jennings Bryan Dorn Veterans Affairs Medical Center (Dorn VAMC), had violated the Privacy Act of 1974 and the Administrative Procedure Act (APA) after a laptop containing their unencrypted personal information, such as names, birthdates, and the last four digits of their social security numbers was stolen; and, in another case, four boxes of pathology reports containing confidential patient information went missing. The plaintiffs sought declaratory relief and monetary damages under the Privacy Act, and broad injunctive relief under the APA, potentially placing the entire VA’s privacy program under judicial oversight.
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