Law360 recently covered the top privacy developments of 2021 and CPW’s Kristin Bryan provided her insights regarding data privacy and cybersecurity litigation [Note: for CPW’s 2021 Year in Review on Financial Privacy Litigation trends, go here]. You can check out the entire Law360 article here. From the article:
In TransUnion v. Ramirez , the high court in a 5-4 June decision found that only the members of a certified class who had alleged that TransUnion provided misleading credit reports on them to third parties had demonstrated the concrete reputational harm necessary to press forward with their claims and seek damages under the Fair Credit Reporting Act, while those who hadn’t alleged such disclosures were barred from proceeding.
The ruling narrowed instances in which consumers can bring privacy claims under statutes like the Fair Credit Reporting Act in federal court, and will “likely result in an increase” in the coming months of these matters shifting to state court to avoid these issues, according to Kristin Bryan, a data privacy and cybersecurity litigator at Squire Patton Boggs.
Attorneys will also be watching to see what impact the TransUnion decision has on plaintiffs’ ability to press data breach litigation, which hinges on the assertion that consumer data has been taken but not yet misused.
Some experts predicted that the number of data breach cases filed in federal court would decline following TransUnion, based on the Supreme Court’s assertion that “the mere risk of future harm, standing alone, cannot qualify as a concrete harm,” Bryan noted. However, that trend has yet to materialize, as “most courts so far have avoided directly applying the case in the cybersecurity context,” Bryan said.
“It is anticipated going into 2022 that there will be more cases holding, consistent with TransUnion, that plaintiffs who allege only that they are at risk of future risk of identity theft or fraudulent charges on their accounts as a result of a data breach lack Article III standing,” she added. “This area of the law will continue to develop going forward as the impact of TransUnion plays out in the lower courts.”
For more on this, stay tuned. CPW will be there to keep you in the loop.