Clifford Chance

Favorable Trend for Plaintiffs in Data Breach Class Actions: Circuits Differ on Whether Free Credit Monitoring Supports Standing

31 January 2017

Enterprises responding to a data breach must be careful in crafting customer notifications and remedial measures, especially the provision of free credit monitoring services, due to these actions' potential impact on standing for class action plaintiffs. The 6th and 7th Circuits have found that post-breach mitigating actions like the provision of free credit monitoring services may constitute an admission of injury sufficient to give rise to standing. This trend, however, was criticized in the 3rd Circuit's recent opinion in In Re Horizon Healthcare Services, Inc. Data Breach Litigation. Nonetheless, in this uncertain environment companies should be mindful of the potential impact of certain remedial measures on subsequent class actions. 

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