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Eleventh Circuit concludes that plaintiff in proposed class action lawsuit on behalf of restaurant customers affected by customer information data breach did not have standing because no concrete injury has yet occurred

On February 4, 2021, in Tsao v. Captiva MVP Restaurant Partners, LLC, No. 18-14959, the Eleventh Circuit Court of Appeals affirmed a district court order dismissing a proposed class action lawsuit brought by a customer of the defendant restaurant following a data breach that exposed the restaurant’s customers’ personal financial information. The Eleventh Circuit determined that the plaintiff, the proposed class representative, did not have standing to sue because neither he nor any of the other customers had yet suffered any misuse of their information. The Eleventh Circuit additionally concluded that the plaintiff’s efforts to mitigate the risk of future identity theft was not a present, concrete injury sufficient to confer standing. Quoting from the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), the Eleventh Circuit stated that for a plaintiff to have standing, he must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Quoting from Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020), the Eleventh Circuit observed that the plaintiff need only allege facts that “plausibly” demonstrate each limit. However, the Court additionally noted that the Supreme Court held in Spokeo that the injury must be “actual or imminent, not conjectural or hypothetical.” After reviewing Supreme Court and Eleventh Circuit precedents, the Eleventh Circuit distilled two legal principles. First, a plaintiff alleging a threat of harm does not have Article III standing unless the hypothetical harm alleged is either “certainly impending” or there is a “substantial risk” of such harm. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 414, n. 5 (2013); Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 931 (11th Cir. 2020). Second, if the hypothetical harm alleged is not “certainly impending,” or if there is not a substantial risk of the harm, a plaintiff cannot conjure standing by inflicting some direct harm on itself to mitigate a perceived risk. Clapper, 568 U.S. at 416, 422; Muransky, 979 F.3d at 931.