Judge throws out lawsuit against Express Scripts

Brendon Tavelli of Proskauer Rose writes:

On November 23, 2009, a federal court in Missouri bucked the recent trend in identity exposure lawsuits and refused to recognize Article III standing in a class action lawsuit that alleged simply an increased risk of identity theft resulting from a data breach. In Amburgy v. Express Scripts, Inc., Magistrate Judge Frederick R. Buckles of the U.S. District Court for the Eastern District of Missouri held that “plaintiff’s asserted claim of ‘increased-risk-of-harm’ fails to meet the constitutional requirement that a plaintiff demonstrate harm that is ‘actual or imminent, not conjectural or hypothetical.’ Plaintiff has therefore failed to carry his burden of demonstrating that he has standing to bring this suit.” Consequently, the Court dismissed the plaintiff’s action – which included claims for negligence, breach of contract, violations of state data breach notification laws and violations of Missouri’s Merchandising Practices Act (“MPA”) – in its entirety for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. In doing so, the court breathed new life into the lack of standing argument that had begun to fall out of favor in identity exposure cases.

Read more on Proskauer’s Privacy Law Blog.

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