Lieff Cabraser partner Fabrice N. Vincent spoke recently with the American Bar Association (ABA) Section of Litigation about digital privacy and the seemingly unending series of hacker attacks plaguing large companies and data stores across the world. “Your Data Was Stolen But Not Your Identity (Yet),” highlights Vincent’s thoughts on cyberattacks and the challenges inherent to keeping our identities safe in an ever-changing digital landscape.
“Identity theft is a big deal that seriously worries anyone potentially affected. These circuit courts are rising to the challenge by increasingly recognizing that privacy rights are real, violations are a real injury, and standing to sue exists,” observes Vincent, who is Co-Chair of the Section’s Class Actions & Derivative Suits Committee.
The U.S. Court of Appeals for the Federal Circuit has determined that victims who simply allege personal data theft, such as the exposure of medical identification numbers, have sufficient standing to pursue data breach claims. Other circuits, however, require victims to show access to Social Security numbers or credit card numbers before elevating the theft to an actionable offense suitable for recovery in a lawsuit. “In the wake of significant consumer data breaches, the material circuit split signals a need for U.S. Supreme Court intervention to create a uniform test governing standing in consumer data breach cases,” notes the Section.
“Where a data holder’s negligence causes data/privacy breaches that pose material threats of identity theft or potential publicity over private issues like medical care, the consumer suffers real emotional harm (even if the worrisome consequences never comes to pass),” explains Vincent. “That harm ought to be compensable and actionable, just as it is under common-law torts like negligent infliction of emotional distress. Such breaches are extraordinarily serious, potentially affecting every aspect of the victim’s life. Judicial remedies are certainly merited and absolutely required.”
“In a perfect world,” Vincent goes on, “all compromised persons would have standing to sue, and the severity of the breach, e.g., the importance of the compromised data and likelihood or actuality of ensuing further harm, would inform the magnitude of recoverable damages/remedy analysis (instead of a harsh standing rule that can unfairly bar claims in the first instance).”
About Fabrice Vincent
A partner in Lieff Cabraser’s San Francisco office, Fabrice N. Vincent is a tireless and principled advocate for the injured and the families of loved ones who died in personal injury and wrongful death cases. Fabrice’s cases include aviation accidents, auto and recreational vehicle accidents, cases arising from defective infant and consumer products, dangerous prescription drugs, and faulty medical devices. Fabrice’s practice also includes cases involving environmental toxic exposures, medical malpractice, and international and human rights violations.
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