On July 20 the U.S. Court of Appeals for the Seventh Circuit dealt what appears to be a fatal blow to the argument that data breach plaintiffs cannot establish Article III standing based on the mere risk of a future injury. In deciding Remijas v. Neiman Marcus Group, the Seventh Circuit did what many courts would not—allowed a data breach lawsuit to proceed based upon the “substantial risk” of a future injury. As a result, plaintiffs now will have a substantially easier experience proceeding with data breach lawsuits based on the risk of future injury.
Let’s start by answering a question: What is Article III standing? Article III standing is a constitutionally imposed limitation on the jurisdiction of federal courts, ensuring that only actual cases or controversies are considered. According to the U.S. Supreme Court’s Clapper v. Amnesty Int’l. decision, a plaintiff seeking to establish standing must demonstrate an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” A potential future injury may justify standing, and the Supreme Court took up this issue in Clapper. Just what is required by Clapper to establish standing based on the risk of a future injury is at the very heart of the Neiman Marcus decision.
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