Duane Morris Class Action Review - 2023 - Report - Page 131
The Supreme Court rejected the claims of class members who only alleged TransUnion
maintained files with inaccurate OFAC alerts. The Supreme Court concluded that “there
is no ‘historical or common-law analog where the mere existence of inaccurate
information, absent dissemination, amounts to concrete injury.” Id. (quoting OwnerOperator Independent Drivers Association, Inc. v. Department Of Transportation, 879
F.3d 339, 344 (D.C. Cir. 2018)).
The Supreme Court also rejected the class members’ argument that the increased “risk
of future harm” was sufficient to confer standing. Id. at 2210. It reasoned that although a
“person exposed to a risk of future harm may pursue forward-looking, injunctive relief to
prevent the harm from occurring,” actual harm is required for retrospective, monetary
damages. Id. (citing Clapper, et al. v. Amnesty International USA, 568 U.S. 398, 414
(2013)).
Like the putative class members in TransUnion, many data breach class action plaintiffs
will likely be unable to plead any concrete harm. Accordingly, while the developing case
law following TransUnion is in its infancy and its progeny is limited, this decision could
be a game-changer for fracturing data breach class actions in 2023 and beyond.
II.
Key Rulings In Data Breach Class Actions
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Duane Morris Class Action Review – 2023
