The Issue of Standing in Privacy Litigation
Standing is an issue that is frequently raised in privacy litigation. Standing is a constitutional issue under Article III of the United States Constitution, and the party invoking federal jurisdiction bears the burden of establishing the following three elements:
1) that it has suffered an injury in fact -- an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical;
2) a causal connection between the injury and the conduct complained of -- the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and
3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
These requirements are "an indispensable part of the plaintiff's case, [and] each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 560.
Prevailing on standing is often an important point since courts may address this issue early in a case and because it cannot be waived and in fact can be raised at any time. As discussed in Section 26:18 of my book, while some courts, including in the Bell v. Acxiom, Inc. matter, have held that a plaintiff's inability to prove damages also means that the plaintiff lacks standing to pursue the claim, other courts have simultaneously found that a plaintiff has standing to pursue a claim, while dismissing the claim on the merits because the plaintiff cannot show the requisite level of damage to state a claim. See Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629 (7th Cir. 2007).
A recent case from the Northern District of California reached this conclusion, finding that the plaintiff had standing to pursue a claim arising from the alleged loss of a laptop, but then dismissing the claim based upon a lack of damage. Specifically, the court found, "While [the plaintiff] has standing to sue based upon his increased risk of future identity theft, this risk does not rise to the level of appreciable harm necessary to assert a negligence claim under California law." Ruiz v. Gap, Inc., 3:07-cv-05739-SC (N.D.Cal. April 6, 2009).
The Pisciotta and Ruiz cases appear to be inconsistent with the holding of Lujan and other cases, particularly the holding of Lujan that the plaintiff must prove standing "with the manner and degree of evidence required at the successive stages of the litigation." It is also inconsistent with Ninth Circuit decisions finding that Article III standing is a higher burden than that imposed by California law. However, these cases must be addressed if you face privacy litigation.
I am currently briefing the standing issue before the Ninth Circuit and would be happy to provide further comment.