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May 26, 2020

Ken Dort Discusses the Impact of Spokeo in Data Breach Suits

In the Law360 article "Who Won Spokeo? Attys Still Debating 4 Years Later," the legal industry publication turned to partner Ken Dort for insight on the lasting impact of the decision in Spokeo, Inc. v. Robins, a case that involved an Article III standing dispute with people search engine Spokeo.

Law360 reports that when the U.S. Supreme Court ruled in Spokeo in May 2016 that plaintiffs must allege concrete harm to prop up statutory privacy claims, both class counsel and the defense bar declared victory. Four years later, the publication raised the question of who actually won.

The publication highlighted that standing has also factored prominently into data breach disputes, fueled both by Spokeo and the Supreme Court's 2013 ruling in Clapper v. Amnesty International that injuries must be real or imminent and not merely speculative.

Dort told Law360 that “the problem we face on the data breach side is that class attorneys are being incentivized to forum-shop, particularly for a nationwide breach, and look for class representatives in those circuits that would allow them to get into court."

The publication added that the Supreme Court has so far declined to revisit the standing issue, rejecting a petition by shoe retailer Zappos last year to review a Ninth Circuit decision finding standing for data breach claims.

Dort noted that the justices agreed last month to consider the scope of a federal computer hacking statute, an indication that they might be interested in considering other data breach-related issues in the near future.

"The hope is that if the Supreme Court was willing to take up that case, just maybe when the next data breach situation comes up, they'll be more amenable to it and provide some solid footing across the entire federal landscape," he added.

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