Year In Review: Top 2023 Data Breach Litigation Trends

This post is part of a series of articles we are doing on 2023 data protection litigation trends. To stay up to date with our writings, please subscribe to the WilmerHale Privacy and Cybersecurity Blog.

One of the main risks that a company faces after a data breach is a potential lawsuit. Plaintiffs often will allege creative statutory and common law theories of harm after they learn that their personal information has been subject to a breach. However, one of the initial hurdles that plaintiffs face is meeting the standing requirement under Article III for federal court actions. This is particularly challenging for plaintiffs that have not experienced any actual misuse of their data at the time of filing their lawsuit. They rely instead on the argument that they face a substantial risk of future harm, which is sufficient for standing. This argument has faced challenges in federal courts, especially after the Supreme Court's 2021 decision in TransUnion v. Ramirez,