Last week, in Tsao v. Captiva MVP Restaurant Partners, LLC (Captiva), the U.S. Court of Appeals for the 11th Circuit held that data breach claims arising from increased risk of future identity theft and potential mitigation effort costs, WITHOUT any evidence of actual data misuse or harm, did not satisfy Article III standing. This decision marks the 11th Circuit’s joining of several other Circuit courts that a plaintiff must establish evidence of harm to satisfy standing requirements. To date, the 1st, 2nd, 3rd, 4th and 8th Circuits have also held that plaintiffs may not establish Article III injury-in-fact based on increased risk of harm.

In the Captiva case, the plaintiff’s payment card data were not actually misused following a data breach and therefore the plaintiff did not present an injury-in-fact sufficient to establish standing. Tsao’s complaint only alleged future risk of identity theft because hackers MIGHT have accessed his payment card information and losses for mitigation efforts such as cancelling his potentially affected credit card account and the lost benefits related to that cancellation, such as loss of reward points. However, the court held that plaintiffs may not manufacture standing in this manner.

The decision can be found here 2021 WL 381948 (11th Cir. Feb. 4, 2021).