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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Thursday, October 5, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will analyze the spectrum of intangible harms that may confer federal standing in data breach and privacy class actions and how courts decide if the alleged injury is concrete, applying lessons from Webb v. Injured Workers Pharmacy L.L.C. (1st Cir. June 30, 2023). The panel will consider three scenarios, beginning with what constitutes actual misuse of information and how courts decide if the misuse was plausibly related to the data breach. The panel will then discuss when the risk of future misuse becomes substantial enough to be "concrete," and what type of present harm the plaintiff must allege. Finally, the panel will take up whether exposure of personally identifying information is an intangible harm sufficient to confer standing and how courts are turning to traditional common law torts for guidance.

Faculty

Melanie A. Conroy
Partner
Pierce Atwood LLP

Ms. Conroy focuses her practice on class action defense and complex commercial litigation. She has experience in investor and consumer class actions based on alleged consumer fraud and unfair practices, consumer privacy, medical device marketing, product recalls, website accessibility, banking disclosures, change of control transactions, insurance claims, securities laws, and fiduciary duties. Ms. Conroy has represented clients in connection with internal, government, and regulatory investigations, and has counseled boards of directors, board committees, and senior management on a broad range of matters, including securities, corporate governance, disclosure, data privacy, and regulatory issues.

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Simon Grille
Partner
Girard Sharp

Mr. Grille is a partner at Girard Sharp. He represents plaintiffs in class and complex litigation concerning consumers’ rights, antitrust, and financial fraud. He has taken a lead role in consumer class actions against some of the largest technology companies in the world and has recovered tens of millions of dollars for the firm’s clients. Mr. Grille has been named a Rising Star by Super Lawyers since 2017. He is editor of the American Association for Justice’s Class Action Newsletter and served as a volunteer fee arbitrator for the Bar Association of San Francisco.

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David K. Lietz
Partner
Milberg Coleman Bryson Phillips Grossman, LLC

Mr. Lietz is a Partner at Milberg whose practice concentrates on complex civil litigation and consumer class actions, with a particular emphasis on data breach and cybersecurity cases. He has filed over 100 data breach class action lawsuits, successfully briefing and arguing dozens of motions to dismiss. Mr. Lietz serves as lead counsel on multiple cases that are on the cutting edge of Article III federal court jurisdiction in data breach litigation. He has been named class counsel in dozens of data breach class actions, winning millions of dollars in compensation for the victims of data breaches. Mr. Lietz has successfully tried consumer class actions to verdict before a jury, most recently in Baez v. LTD Financial Services in the US District Court for the Middle District of Florida. 

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Description

Courts wrestle with what, if anything, has to happen to personal information before a cause of action accrues and a plaintiff has standing to seek and ultimately obtain damages or injunctive relief in federal court.

Although courts seem to agree that actual misuse of data is a concrete harm, plaintiffs still must demonstrate a plausible connection between the misuse and the breach. The sufficiency of that connection is determined by (1) judicial experience and (2) common sense. The criteria get stricter as the case progresses, leaving both sides to guess as to the actual standard.

If there has been no actual misuse, plaintiffs may still proceed if there is a substantial risk of actual misuse coupled with some type of present loss. Again, courts have differing tests for what makes a risk substantial and what type of present loss is needed. If the bar is too low, companies may have to defend technical errors; if the bar is too high, consumers could lose the ability to correct serious wrongs.

The most difficult issue is whether exposure or disclosure of personal or confidential information, without more, is an intangible harm sufficient to confer standing. Courts often look for answers by examining how common law privacy torts were analyzed.

Listen as this experienced panel discusses intangible harms in data breach class actions and strategies for navigating evolving standards.

Outline

  1. Overview of TransUnion v. Ramirez
  2. Concrete harm
  3. Material risk of future misuse
  4. Exposure or disclosure only
  5. Strategies for plaintiff
  6. Strategies for defense

Benefits

The panel will review these and other important issues:

  • Are standing and accrual of a cause of action simply two sides of the same coin?
  • Are appellate courts overturning applications of TransUnion v. Ramirez more often?
  • How important to the analysis are the speed and adequacy of the defendant's response to the breach?
  • What is the difference between mitigating damages and ginning up losses?