United States: Cybersecurity Implications Of Supreme Court's Spokeo Decision Begin To Emerge

On May 16, 2016, the Supreme Court issued its opinion in Spokeo , Inc. v. Robins, 578 U.S. ____ (2016), holding that Article III standing requires plaintiffs to demonstrate concrete injury in the context of a statutory violation. In the week since the Court's opinion, Spokeo has already been cited in high-profile cybersecurity cases.

1. Khan v. Children's National Health System

In Khan v. Children's National Health System, Children's National was attacked by hackers in a phishing scam that compromised the personal information of approximately 18,000 patients. See Memorandum Opinion, No. 8:15-cv-02125, at 2 (D. Md. May 19, 2016) (ECF 33). The plaintiff filed a proposed class action, alleging violations of consumer protection acts and common law claims. Id. at 2-3. Children's National filed a motion to dismiss, arguing that the plaintiff lacked standing because she had not suffered an injury in fact. Id. at 3. In response, the plaintiff claimed, among other things, that she faced an imminent threat of identity theft, that she had expended time and money to obtain credit monitoring and protect herself against identity theft, and that she had statutory standing under the consumer protection acts.

The court found that the plaintiff lacked standing. He noted that, while the plaintiff was concerned that her personal information might be misused, she had not alleged that she or anyone else affected by the data breach had learned of any misuse. With respect to the plaintiff's assertion that she nevertheless had statutory standing, the court cited Spokeo for the proposition that "Article III standing requires a concrete injury even in the context of a statutory violation." The court found that the plaintiff had not connected the alleged violations of the consumer protection acts with an injury and had advanced no authority that "a state legislature or court, through a state statute or cause of action, can manufacture Article III standing for a litigant who has not suffered a concrete injury." Id. at 15. As the plaintiff's lack of standing deprived the court of jurisdiction, the court remanded the case to state court.

2. In re Nickelodeon Consumer Privacy Litigation

In In re Nickelodeon Consumer Privacy Litigation, Viacom Inc. was accused of collecting website information about children's genders and birthdays so that it could target them for advertising. See Opinion, No. 2:12-cv-07829-SRC-CLW, at 2 (D.N.J. Jan. 20, 2015) (ECF 84). The plaintiffs sued, alleging violations of the Video Privacy Protection Act and New Jersey's Computer Related Offenses Act. Id. at 1. Although the district court found that the plaintiffs had standing, it dismissed the complaint for failure to state a claim, and the plaintiffs appealed to the Third Circuit.

On appeal to the Third Circuit, Viacom argued that the plaintiffs lacked standing based on the alleged statutory violations and had not independently pled an injury. Viacom Br., In re Nickelodeon Consumer Priv. Litig., No. 15-1441, at 11, 13 (3d Cir. June 15, 2015). Viacom's brief, filed before the Spokeo decision, observed that the Supreme Court had granted certiorari in Spokeo to resolve the issue of whether standing could be conferred through a statutory violation. Id. at n.1. Following the Spokeo decision, Viacom filed a letter supplementing its brief and arguing that the Spokeo holding required dismissal for lack of standing because the plaintiffs had alleged only statutory violations and had not plausibly pled economic harm. Viacom Ltr., In re Nickelodeon Consumer Priv. Litig., No. 15-1441 (3d Cir. May 20, 2016).

3. Boelter v. Advance Magazine Publishers, Inc.

In Boelter v. Advance Magazine Publishers, Inc., the plaintiff brought a class action against Advance Magazine Publishers, Inc. (d/b/a Condé Nast), alleging that Condé Nast had sold their personal information (including names, titles of magazines subscribed to, and home addresses) to third parties in violation of Michigan's Video Rental Privacy Act. See Mem. of Law in Support of Mot. to Dismiss, No. 15-cv-05671, at 6 (S.D.N.Y. Oct. 2, 2015) (ECF 19). In its motion to dismiss, filed prior to the Spokeo decision, Condé Nast argued that plaintiff impermissibly based her standing on the alleged violation of the Michigan statute and had not pled actual harm. See id. at 7-8. Condé Nast observed that Spokeo was pending before the Supreme Court and that Michigan's attorney general had joined a group of eight attorneys general in an amicus brief urging the Court to hold that a technical violation of a statute cannot confer Article III standing. Id. at 8.

After Spokeo was decided, both the plaintiff and Condé Nast filed letters with the court claiming that the decision supported their side. The plaintiff filed a letter, arguing that Spokeo held that "a plaintiff . . . need not allege any additional harm beyond the one Congress has identified." Ltr. in Support of Opp. to Mot. to Dismiss, Boelter v. Advance Magazine Publishers, Inc., No. 15-cv- 05671, at 1 (S.D.N.Y. May 16, 2016) (ECF 45). Citing to authority holding that a violation of the Michigan statute was sufficient to confer standing, the plaintiff argued that Spokeo supported standing. Id.

Condé Nast filed a letter in reply, arguing that Spokeo supported dismissal for lack of standing. Condé Nast asserted that the plaintiff's letter had avoided "what the Supreme Court actually had to say about" injury-in-fact. Ltr. in Resp. to Pl. May 16, 2016 Ltr., Boelter v. Advance Magazine Publishers, Inc., No. 15-cv-05671, at 1 (S.D.N.Y. May 18, 2016) (ECF 46). Condé Nast pointed out that the Supreme Court had emphasized that a plaintiff does not "automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation." Id. Accordingly, Condé Nast maintained that the plaintiff lacked standing.


Spokeo has mostly been cited in support of the principle that standing cannot be based solely on the violation of a statutory right. There must also be concrete injury. While Spokeo's effect on cybersecurity cases is yet to be seen, it is already being used in support of arguments that plaintiffs lack standing. As these cases and others are litigated in the coming months, the full impact of Spokeo should become apparent.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.