Challenging Whether Plaintiffs Pled Viable State Law Claims May Be An Effective Strategy In Defending Consumer Data Breach Class Action Litigation Even Where Plaintiffs Can Meet Federal Article III Standing Requirements

Last year, and earlier this year, a hot topic in data breach consumer class action litigation in federal court was whether plaintiffs could demonstrate Article III standing. Some courts have applied a more liberal rule that has allowed plaintiffs to survive an Article III challenge. (See, for example, Remijas v. Neiman Marcus Group, 794 F.3d 688 (7th Cir. 2015) ("Remijas") and Lewert v. P.F. Chang's China Bistro, Inc.  (7th Cir. 2016) ("Lewert")). Defendants are now having more success with a separate challenge as to whether a data breach consumer class action fails to plead viable claims under state law. For example, on October 3, 2016 Judge Andrea R. Wood granted the defendant's Federal Rule of Civil Procedure 12(b)(6) motion to dismiss in In Re Barnes & Noble Pin Pad Litigation pending in the Northern District of Illinois (the same Circuit that ruled in favor of plaintiffs in Remijas and Lewert). See, 2016 U.S. Dist. LEXIS 137078 (N.D. Ill. Oct. 3, 2016), district