As the Equifax breach litigation gets underway, several recent decisions have widened a split on when and under what conditions customers or other affected individuals may bring claims against a company that suffers a data breach. Late last month, a D.C. federal judge dismissed a lawsuit based on the massive breach at the U.S. Office of Personnel Management (“OPM”), ruling that the theft of data alone was not enough to establish standing. The Court of Appeals for the Eighth Circuit issued a similar recent ruling, holding that plaintiffs suing the grocery retail company SuperValu had not shown that they were at greater risk of identity theft as a result of a data breach at the company and they therefore lacked standing. In contrast to these decisions, a California federal judge allowed claims to proceed against Yahoo! based on the allegation that the customer-plaintiffs alleged a risk of future identify theft and loss of value of their personal identification information. The differing interpretations of the standing requirements in data breach cases will no doubt continue to be vigorously litigated and may ultimately need to be resolved by the Supreme Court.

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