Nicholas O. Kennedy


The D.C. Circuit recently ruled that alleged victims of a data breach have standing to pursue claims, notwithstanding that they have not yet suffered any actual harm as a result of the breach.  This ruling adds to the prior circuit court rulings that have reached differing results when addressing the standing issue in data breach cases.

Attias v. CareFirst, Inc., presented a regrettably familiar fact pattern:  Plaintiffs were the victims of an alleged data breach at health insurer CareFirst, which exposed their personal and medical data.  Plaintiffs filed a class action against CareFirst raising eleven state law causes of action on behalf of a class of all CareFirst customers in Maryland, Virginia, and Washington, D.C.

The California Supreme Court has narrowed the protection of arbitration agreements with class action waivers with its holding in McGill v. Citibank that arbitration agreements may not preclude public injunctive relief .

In McGill, Citibank was sued by a credit card holder who claimed that its credit insurance program violated the California UCL, CLRA, false advertising law, and insurance code. Among other things, the consumer sought an injunction prohibiting Citibank from continuing the challenged practices. The trial court granted in part the bank’s motion to compel arbitration based on the arbitration clause in the credit card agreement. It denied the motion as it related to the request for injunctive relief by applying the pre-Concepción California Broughton-Cruz rule which holds unenforceable agreements to arbitrate claims for public injunctive relief under the CLRA, UCL, or false advertising law.

California continued its ongoing debate on arbitrations and class actions this week when its Supreme Court held that in some cases an arbitrator, not the court, must decide whether an arbitration agreement permits class-wide arbitration. This case is important because it rejects a universal rule on who should be the decision-maker in favor of a case-by-case analysis. In Sandquist v. Lebo Automotive, Inc., No. S220812 (Cal. July 28, 2016), the California Supreme Court did not…

UNITED STATES – In Campbell-Ewald Co. v. Gomez, the Supreme Court refused to allow class-action defendants to escape liability through an unaccepted offer of full payment of the named plaintiff’s claims. This resolved a deep circuit split on the issue. The Court concluded that “basic principles of contract law” established that once the offer was rejected, the offer could not moot the claim. Interestingly, the Court expressly refused to decide whether a defendant could escape…