Seen at Wilmer Hale:
One of the main risks for a company in the event of a data breach is the threat of litigation. Data breach litigation continued to proliferate in 2024, as it has in prior years.
In the past year, plaintiffs continued to seek relief following data breaches under state common-law doctrines, and the Alabama Supreme Court joined the other state courts of last resort who have addressed data-breach litigation in published decisions. Federal data breach plaintiffs contended with standing issues in the wake of the Supreme Court’s decision in TransUnion LLC v. Ramirez, and an apparent circuit split between the Tenth and Eleventh Circuits deepened when the Third Circuit weighed in. The District of New Jersey also provided further guidance to companies on the scope of the attorney-client privilege when responding to data breaches.
This post examines these trends.
Common-Law Claims For Traditional Data Breaches
More traditional common-law claims (e.g., negligence, breach of contract) based on data breaches were common in 2024, as in prior years. In many instances, such claims survived a motion to dismiss.1
One notable exception is the Alabama Supreme Court’s decision in Griggs v. NHS Management.2 In Griggs, the court rejected claims for negligence, negligence per se, invasion of privacy, unjust enrichment, breach of confidence, and breach of fiduciary duty related to a data breach suffered by NHS, a provider of administrative services for nursing homes and physical rehabilitation facilities in Alabama, Arkansas, Florida, and Missouri.3 The court established a high bar for making out invasion of privacy, breach of confidence, and unjust enrichment claims in the traditional data breach litigation context involving hacking by a third-party.
Read more at WilmerHale.