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In June 2014, hackers succeeded in gaining access to a database maintained by CareFirst BlueCross BlueShield and the protected health information of 1.1 million of its members. The types of information exposed as a result of the hack included names, email addresses, dates of birth, and subscriber ID numbers.
Lawsuits were filed following the breach, with the plaintiffs seeking damages for the elevated risk of identity theft and fraud they faced as a result of the breach.
In 2016, the U.S. District Court for the District of Columbia and dismissed one punitive class action lawsuit against CareFirst – Chantal Attias vs. Carefirst, Inc. – for lack of standing. Further complaints were also dismissed by two federal district courts. However, on August 1, 2017, the case was revived when the U.S. District Court for the District of Columbia allowed the case to proceed, even though there was not a concrete, identifiable injury to plaintiffs.
CareFirst submitted a motion for a stay to allow an appeal to be filed with the Supreme Court. Last week, U.S. District Court for the District of Columbia granted a stay of 90 days pending the filing of a Petition for a Writ of Certiorari with the United States Supreme Court, agreeing there was ‘good cause’ and that a “substantial question” needed to be answered.
In the motion CareFirst explained, “The Supreme Court has yet to examine the issue of standing in the context of a data breach case.”
CareFirst wants the case heard by the Supreme Court as it believes guidance is required by federal district and appellate courts to help them sort cases where a cognizable injury-in-fact has been sustained from those where plaintiffs are not able to allege real or immediate harm.
Federal district and appellate courts have struggled to reach consensus when the prospect of future injury as a result of a data breach constitutes a substantial risk of actual harm.
The motion reads, “The fact that reasoned jurists have come to differing conclusions on the standing of plaintiffs from this same data breach, let alone the differences in application of the principles of standing among other jurisdictions in different data breaches, suggests that there is a reasonable probability that four members of the Supreme Court would consider the underlying issue sufficiently meritorious for a grant of certiorari.”
CareFirst explained that if the district court proceeds with the case, “It will encourage others to bring suits following other data breaches without allegations of real and immediate harm.