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Will you have standing in a data breach class action even if your information was not stolen?

There have been many major litigation cases involving data breaches in recent months. In addition to the recent Equifax data-breach class action, our own firm has been actively involved in a data-breach claim against Luxottica.

These claims invariably involve significant legal complications, not the least of which is standing.

What is “standing” in a class-action claim?

Standing is a legal concept of being in an appropriate position to bring a legal claim. If a car accident occurs, for example, but you were not involved in any way and suffered no damages, you would not have standing to bring a motor vehicle accident claim. Generally, only those people or entities who suffered real damages from an incident have standing to bring a claim.

Standing is required in a class action suit just as it is in any other form of civil litigation. In the case of data breach incidents, there must be some kind of harm done to anyone who will be considered part of the class that can receive compensation.

Standing in data-breach cases

Based on the above definition of standing, it would seem that only people whose data was actually stolen would have suffered real damages and would thus have standing.

However, according to JDSUPRA, the 11th Circuit Court’s opinion in the Equifax case suggests that personal damages are not required to be part of a class in a data-breach claim.

The court found that even class members who did not have their identifying information stolen could still be part of the plaintiff class, because the risk of their identities being stolen was still a possibility as a result of the breach.

What this means for other potential class action participants

Cases like this always need to be taken in context. The scope of the Equifax data breach was remarkable. Social security numbers, birth dates, drivers’ license numbers and other critical pieces of information were compromised.

It is conceivable the court’s finding in the Equifax case would not apply to another, less broad, breach of data.

It takes legal knowledge, experience and training for a lawyer to handle class action claims involving breaches of data. A skilled attorney would be up to date on this case law and would be able to help you determine whether you would have standing.