6th Circuit denies en banc on data breach standing issue. Prelude to SCOTUS?

Alison Frankel reports:

… The 6th Circuit denied a petition by Nationwide Insurance to rehear a three-judge panel’s Sept. 2016 decision to allow a negligence class action stemming from a 2012 data breach to proceed. Nationwide’s lawyers at Morgan Lewis & Bockius argued in the en banc petition (as the insurer argued in federal district court in Columbus, Ohio, and before the three-judge panel) that Nationwide customers whose data was stolen do not have constitutional standing to sue because they have not actually been harmed.

Like just about every data breach class action defendant in the past few years, Nationwide relied heavily on the U.S. Supreme Court’s 2013 analysis in Clapper v. Amnesty Internationalof what sort of injury gives rise to constitutional standing. The injurer contended that in the four years since hackers gained access to customers’ personal information, those customers have experienced no harm – “no out-of-pocket expenses, no fraudulent charges, no identity theft,” Nationwide said in the en banc petition.

Read more on Reuters.