Thursday, December 16, 2010


9th Circuit rules that credible threat of harm is sufficient for standing to sue in ID theft cases

by Larry Geller

Attorneys Tom Grande  and Bruce Sherman filed a class action lawsuit on November 18, 2010,  on behalf of Philippe Gross, a student at UH Manoa who alleges that he was affected by both a June 2009 UH privacy breach affecting 50,000 individuals as well as an October 2010 privacy breach affecting 40,000 individuals.

A ruling Tuesday by the 9th Circuit Court of Appeals may make it easier for those who are threatened by ID theft due to breach of their personal information but who have not yet experienced a monetary loss to have standing to sue in federal court. Hawaii is part of the 9th circuit.

At first glance, this may be a first-of-its-kind decision.

Judge Milan D. Smith, Jr  wrote in Krottner v. Starbucks Corporation:

On these facts, we reach a different conclusion. If a plaintiff faces “a credible threat of harm,” Cent. Delta Walter Agency, 306 F.3d at 950, and that harm is “both real and immediate, not conjectural or hypothetical,” Lyons, 461 U.S. at 102 (internal quotation marks omitted), the plaintiff has met the injury-in-fact requirement for standing under Article III. Here, Plaintiffs-Appellants have alleged a credible threat of real and immediate harm stemming from the theft of a laptop containing their unencrypted personal data. Were Plaintiffs-Appellants’ allegations more conjectural or hypothetical—for example, if no laptop had been stolen, and Plaintiffs had sued based on the risk that it would be stolen at some point in the future—we would find the threat far less credible. On these facts, however, Plaintiffs-Appellants have sufficiently alleged an injury-in-fact for purposes of Article III standing

You can download the opinion from: 2:09-cv-00216 Krottner v Starbucks 20101214.pdf.


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