Counsel hoping for Supreme Court guidance on standing issues dividing the circuit courts will have to wait a bit longer. On February 20, the Court denied a petition for writ of certiorari in Attias v. CareFirst to resolve a circuit split over whether allegations of fear of future identity theft in the wake of a data breach satisfy the standing requirements of Article III of the United States Constitution. In the absence of Supreme Court guidance on this issue, we anticipate that district courts within the District of Columbia, Sixth, and Seventh Circuits – which have ruled favorably for plaintiffs on the standing issue – will emerge as the forums of choice for data breach class actions. By contrast, defendants will likely seek to consolidate data breach class actions in the district courts within the Eighth and Fourth Circuits, which have taken a narrower approach.
Does the denial of certiorari indicate a reluctance by the Court to weigh in on other thorny standing issues? As we previously reported, the Supreme Court recently denied a petition for writ of certiorari in Spokeo II, which asked the Court to resolve a circuit split over whether intangible harm to a statutorily-protected interest constitutes injury in fact even when a plaintiff cannot allege “real-world” harm or the imminent risk thereof. Until the Supreme Court addresses these questions, expect confusion rather than clarity to govern key standing issues in the class action context.