Another Way To Challenge Standing In Data Breach Cases
By David Cohen and Ani-Rae Lovell, Ropes & Gray LLP (April 24, 2017, 6:30 PM EDT) -- A common tactic in defending federal consumer data breach litigation is challenging the plaintiff's standing on a motion to dismiss. Specifically, defendants contest whether the plaintiff suffered an actual or imminent injury from the breach sufficient to create a "case or controversy" under Article III of the U.S. Constitution. Most such challenges are "facial" — that is, defendants argue that the complaint fails to plausibly plead an actual or imminent injury. These facial challenges are frequently successful. They are not, however, a defendant's only option for seeking dismissal on standing grounds. A recently decided district court case, Foster v. Essex Property...
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