In the context of data breach class action litigation, the question of whether Article III standing can be satisfied is often dispositive of the outcome of an action. However, a deep circuit split currently exists between the federal appellate courts regarding the level of proof required to establish standing in data breach class actions— particularly as it relates to demonstrating a sufficiently “concrete” injury-in-fact and whether allegations of an increased risk of future identity theft are sufficient to satisfy this aspect of the standing test.

Originally published in the ABA TIPS Cybersecurity & Data Privacy Committee Newsletter (Spring 2021).