What’s next in consumer data breach litigation? Emerging theories of liability

Plaintiffs have now begun to turn their attention to legal theories that do not require proof of actual damages

In our last article, we examined the challenges plaintiffs encounter in bringing privacy and data breach claims, including difficulties establishing Article III standing, cognizable injury under state law, and the stringent requirements for class certification. Faced with the daunting problem of establishing an economic “injury” from the mere disclosure of personal data, plaintiffs have now begun to turn their attention to legal theories that do not require proof of actual damages. As we will see, some of these theories have gained legal traction, at least for the time being.

In the Sony Gaming Network data breach litigation, Sony faced a class action from consumers after a criminal intrusion into its PlayStation video game network. The original complaint alleged that plaintiffs faced an increased risk that their personal information would be misused. Finding that “the mere ‘damage of future harm, unaccompanied by present damage, will not support a negligence action,’” the court dismissed the case.

Contributing Author

author image

Stephen M. Prignano

Stephen M. Prignano is a partner in the Providence, Rhode Island office of Edwards Wildman Palmer LLP.  His practice focuses on the defense of class...

Bio and more articles

Contributing Author

author image

Matthew Murphy

Matthew Murphy is an associate in the Providence, Rhode Island office of Edwards Wildman Palmer LLP.  His practice focuses on commercial litigation, insurance coverage and...

Bio and more articles

Join the Conversation

Advertisement. Closing in 15 seconds.