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Courts protect big companies from liability even when companies expose consumers to increase risk of harm

Last month, a disturbing opinion was issued by a federal judge in Missouri.  Amburgy v. Express Scripts was filed in the Eastern District of Missouri and the class representative alleged, inter alia, Express Scripts exposed thousands of consumers to an increased risk of harm as the result of Express Scripts’ data breach.

The defendant, Express Scripts, filed a motion to dismiss and argued the plaintiff lacked standing under Article III of the Constitution.  Judge Buckles agreed, and held the “plaintiff’s asserted claim of increased risk of harm fails to meet the constitutional requirement that a plaintiff demonstrate harm that is actual or imminent, not conjectural or hypothetical.”  Thus, the “plaintiff has therefore failed to carry his burden of demonstrating that he has standing to bring this suit.”  Judge Buckles dismissed the class action for lack of subject matter jurisdiction citing Rule 12(b)(1) of the Federal Rules of Civil Procedure.

The court’s opinion is disturbing because it echoes a growing trend that US courts refuse to recognize damages stemming from an increased risk of harm when companies fail to adequately protect consumers’ personal information.  See Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629 (7th Cir. 2007); Stollenwerk v. Tri-West Health Care Alliance, No. 05-16990, 2007 U.S. App. LEXIS 27164 (9th Cir. Nov. 20, 2007); Willey v. J.P. Morgan Chase, N.A., No. 09 Civ. 1397 (CM), 2009 WL 1938987 (S.D.N.Y. July 7, 2009); Randolph v. ING Life Ins. & Annuity Co., No. 07-CV-791 (D.C. Jun. 18, 2009); Ruiz v. Gap, Inc., No. 07-5739 SC, 2009 WL 941162 (N.D. Cal. Apr. 6, 2009); Belle Chasse Auto. Care, Inc. v. Advanced Auto Parts, Inc., No. 08-1568, 2009 WL 799760 (E.D. La. Mar. 24, 2009); Forbes v. Wells Fargo Bank, N.A., 420 F. Supp. 2d 1018 (D. Minn. 2006); Bell v. Acxiom Corp., 4:06 CV00485-WRW, 2006 U.S. Dist. LEXIS 72477 (E.D. Ark. Oct. 3, 2006); Giordano v. Wachovia Sec., LLC, Civ. No. 06-476 (JBS), 2006 U.S. Dist. LEXIS 52266 (D.N.J. July 31, 2006).