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Seventh Circuit Undercuts Prominent Defenses in Data Breach Lawsuits and Class Actions

With two recent decisions sure to please the plaintiff's bar, the U.S. Court of Appeals for the Seventh Circuit landed a blow to defendants facing class action and data breach lawsuits. In the first decision, the Seventh Circuit ruled that data breach plaintiffs, who regularly bring suits as class actions, have Article III standing despite suffering no actual harm so long as some future fraudulent activity resulting from the breach is "certainly impending." In a second ruling, the Seventh Circuit killed off the heightened ascertainability requirement for class certification, adopted in the Third Circuit and various other courts, which requires plaintiffs to demonstrate a manageable method of identifying class members. The court held to a "weak" ascertainability requirement for class certification, where the class definition must merely be sufficiently definite and based on objective standards.

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