Stueve Siegel Hanson Scores Win in Third Circuit Appeal


Stueve Siegel Hanson scored a prominent win in the U.S. Court of Appeals for the Third Circuit when the appellate court reversed the dismissal of a data breach class action for lack of Article III standing to sue and clarified the contours of “injury” based on the threat of future harm.

Stueve Siegel Hanson partner Austin Moore argued the case before the appellate panel.

On September 2, 2022, the Third Circuit held that Stueve Siegel Hanson client Jennifer Clemens suffered a concrete injury-in-fact when her former employer ExecuPharm was subject to a data breach that resulted in the publication of her information on an underground portion of the internet known as the “dark web.”

In a precedential opinion, the unanimous three-judge panel held that “in the data breach context, where the asserted theory of injury is a substantial risk of identity theft or fraud, a plaintiff suing for damages can satisfy concreteness as long as he alleges that the exposure to that substantial risk caused additional, currently felt concrete harms.”

The panel provided examples including where “plaintiff’s knowledge of the substantial risk of identity theft causes him to presently experience emotional distress or spend money on mitigation measures like credit monitoring services, the plaintiff has alleged a concrete injury.”

The opinion includes helpful guidance for data breach victims within the Third Circuit as it adopts factors considered by other appellate courts in assessing the imminence of potential harm, including whether the breach was intentional, whether the data was misused, and the nature of the information accessed.

The case is Clemens v. ExecuPharm Inc., No 21-1506 (3d Cir. 2022).

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