Shannon P. Duffy reports:
Finding there was no more than speculative injury, a federal judge has dismissed a class action suit against Aetna Inc. filed in the wake of news that the insurer’s computer database may have been hacked and that personal data of up to 450,000 job applicants were potentially at risk.
In Allison v. Aetna, U.S. District Judge Legrome D. Davis added his voice to a growing chorus of judges who have held that such a claim of “increased risk of identity theft” is not enough to confer standing to sue.
Read more on Law.com
The court’s order, which I’ve uploaded here, makes for interesting reading in terms of its review of similar cases as well as their reasoning:
Turning now to the facts of this case, we find that Plaintiff has failed to allege a sufficient injury-in-fact to satisfy the requirements of Article III.6 Plaintiff’s alleged injury of an increased risk of identity theft is far too speculative. First, Plaintiff’s allegation that his personal information was even accessed is conjecture. Plaintiff never received the phishing email. In addition, Defendant’s letter stated that they were unable to verify whether Plaintiff’s information was even accessed. (See Am. Compl. Ex. 1.) Second, Plaintiff’s own allegations suggest that the only information that the unauthorized individuals were able to access were the email addresses themselves. Plaintiff claims that “Class members face a significant risk of identity theft, evidenced by . . . [t]he hackers’ efforts to extract personal information from Class members via sending phishing email messages. Hackers would not seek such information if they did not intend to misuse it.” (Am. Compl. ¶ 28.) However, it would not be a reasonable inference for the Court to presume that hackers would seek such information, thereby risking exposure of their nefarious activities, if they had already obtained the same through unlawful means. Accordingly, even assuming that the hackers obtained Plaintiff’s email address, it is highly speculative that they obtained any other information that would be necessary to commit identity theft. Similarly, Plaintiff does not allege that anyone else possibly obtained such information. Finally, Plaintiff is well aware of the previous phishing emails, so even assuming he received such an email now, the risk of him providing such information is slight. At best, Plaintiff has alleged a mere possibility of an increased risk of identity theft, which is insufficient for purposes of standing, and he certainly has not asserted a credible threat of identity theft.7 Thus, Plaintiff lacks standing under any standard for increased risk of harm.