The modern “Information Age” has been defined by rapidly increasing interconnectivity and dependence on the internet by consumers and businesses alike. One side effect of these technological advances has been the increasing frequency of cyberattacks and data breaches perpetrated by sophisticated cyber criminals using ever-evolving methods of infiltration. And, as can be expected, along with the increase in data breaches over the past few decades, we have seen the rise of data breach litigation, and in particular, consumer class action litigation against the companies who have been victimized by those data breaches. The Fourth Circuit has seen several high-profile data breach class actions. Such class actions often face difficult uphill battles in proving the necessary elements for class certification, particularly when it comes to defining a theory of harm that can be proven by common evidence across the class. Last month, Judge Gibney of the Richmond Division of the Eastern District of Virginia dismissed one such data breach class action case for a more basic problem: the named plaintiffs could not demonstrate they had suffered any concrete injury sufficient to establish Article III standing at all, let alone damages that could be proven classwide. Holmes v. Elephant Ins. Co., No. 3:22cv487, 2023 WL 4183380 (E.D. Va. June 26, 2023).

On May 3, Judge Grimm of the U.S. District Court for the District of Maryland issued a class certification decision in a consumer data breach multidistrict litigation case against an international hotel and resort management company, becoming one of the few district courts to certify Rule 23(b)(3) classes in this type of case. The litigation…