Hundreds of Equifax Data Breach Lawsuits Have Been Filed—What are their Chances?

Hundreds of Equifax Data Breach Lawsuits Have Been Filed—What are their Chances?

Legal Sidebari

Hundreds of Equifax Data Breach Lawsuits
Have Been Filed—What are their Chances?
November 1, 2017
The recent data security breach of Equifax, one of the three main credit reporting agencies, has already
spawned scores of federal lawsuits, as individual consumers, financial institutions, and state and local
governments have all filed suit against the company. These cases involve a wide variety of federal and
state claims, raising a host of legal issues that may more broadly inform Congress’s consideration of
cybersecurity law going forward.
The impetus for the bevy of lawsuits against Equifax was a data breach that compromised sensitive
consumer information (e.g., names, birthdates, Social Security numbers) for over 145 million Americans.
The breach, which occurred in mid-summer and was reported by Equifax in September, stemmed from
the exploitation of a vulnerability that the credit reporting agency was made aware of in March 2017. (For
more details on the breach itself, see this testimony from CRS cybersecurity analyst Chris Jaikaran).
Since the breach, over 200 lawsuits have been filed against Equifax in federal and state courts around the
country. The cases brought against the company allege various common law, state statutory, and federal
statutory claims. The suits seek monetary damages as well as injunctive relief (e.g., a court order
requiring Equifax to implement stronger cybersecurity measures). The lawsuits, however, face a variety of
challenges, including with regard to both the process of finding a venue that can hear a given case and the
substance of the underlying claims.
Procedural issues. On the procedural side, one of the biggest hurdles the Equifax plaintiffs will have to
overcome in light of recent Supreme Court precedent relates to the constitutional requirement of
“standing.” This legal doctrine, which derives from Article III’s case or controversy requirement,
necessitates that parties seeking judicial relief from a federal court show that (1) they have suffered (or
will imminently suffer) a concrete and particularized injury that (2) has been caused by the defendant’s
actions and (3) can be redressed by the court. The Supreme Court recently specified that the injury alleged
in a lawsuit must both affect a plaintiff “in a personal and individual way” and be real rather than abstract.
Cognizable harms can include incursions on property interests, contractual rights, and, in certain
circumstances, statutorily created rights. (There is some question regarding to what extent Congress can
functionally create Article III standing based solely on violation of a statutory right.)
In the Equifax cases, plaintiffs may have trouble meeting the standing requirement for several reasons.
First, to the extent their claims are based solely on the increased risk of identity theft that they potentially
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face due to having their personal information compromised in the breach, courts may be skeptical as to
whether any injury that the plaintiffs may suffer is “certainly impending,” the standard announced in a
2013 Supreme Court case. Lower courts have split on the question of whether the risk of identity theft
alone is a sufficient injury to confer standing on a plaintiff or whether a person must wait until she has
actually had her identity stolen before she can sue. The Eleventh Circuit—which includes Atlanta, where
Equifax is located and where the litigation reportedly might be consolidated—has not taken a side on the
issue. Second, it may be difficult for a plaintiff to prove the causation prong of the standing inquiry
because the burden would be on the party seeking federal jurisdiction to prove that any identity theft (or
risk thereof) is the result of the Equifax breach as opposed to some other cause.
Beyond the standing issue, other procedural issues that may be raised in the Equifax litigation include:
 Class action certification—Equifax plaintiffs will have to establish that they meet the
requirements under the Federal Rules of Civil Procedure to have their claims aggregated
into a single suit, such as that there are questions of law or fact common to all of the
plaintiffs; and
 Whether their claims will have to be arbitrated—there has been some debate over
whether Equifax could require its consumers to bring their claims before an arbitrator as
opposed to a court.
Substantive issues. The Equifax data breach plaintiffs also face substantive challenges in bringing their
suits. One particularly tricky issue concerns any claims relying on common law torts, like negligence. To
prove negligence, a plaintiff must demonstrate (1) that the defendant owed her a duty of care, (2) that the
defendant breached that duty, and (3) that as a proximate cause of that breach the plaintiff (4) was
harmed. When courts ask whether a defendant has been negligent, the defendant’s conduct must be
measured against a general standard of care with which it ought to have complied. For example, even if a
company follows all of the best cybersecurity practices and is as vigilant as it can be, it may still be
possible for sophisticated hackers to nevertheless access the company’s networks in unauthorized ways.
In such a case, a court would be unlikely to find such a company negligent despite a breach in its security.
On the other hand, a company that openly put unencrypted sensitive customer information on a website
that it knew could be subject to a breach would be much more likely to be found negligent. Somewhere
between these extremes is the relevant standard of care for purposes of a data breach negligence lawsuit.
However, in the data breach context there is no universally agreed upon standard of care for cybersecurity
measures. Courts might look to the National Institute of Science and Technology’s 2014 Framework for
Improving Critical Infrastructure Cybersecurity, relevant state regulations, or industry-created security
standards to determine what kinds of actions Equifax should have been taking to protect the sensitive
personal information it stored, but it is unclear whether any of these provisions would amount to a
standard of care with which Equifax had the duty to comply.
In addition to the standard of care issue, the other elements of a negligence claim are not slam dunks
either. The plaintiffs must show they were harmed, and while money spent by consumers to freeze or
monitor their credit is easily quantifiable, other injuries such as emotional distress are harder to prove.
Also, showing that the Equifax breach was a “proximate” cause of any injury requires proof that the
breach was reasonably foreseeable.
Beyond the negligence claims, litigants have sued Equifax under other theories, including violations of
positive state and federal laws. Additional substantive questions related to plaintiffs’ lawsuits include:
 Whether Equifax’s 6-week delay in announcing the data breach violated state data breach
notification statutes, most of which require only that notification occur “without
unreasonable delay”;

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
 Whether the company violated state unfair and deceptive practices laws, e.g., California
Business & Professional Code § 17200 et seq.;
 Whether the company had reasonable procedures in place to protect consumer data from
unauthorized disclosures as required by the Fair Credit Reporting Act;
 Whether Equifax implemented the safeguards promulgated by the Federal Trade
Commission pursuant to the Gramm–Leach–Bliley Act;
What’s next? The Equifax breach litigation implicates a number of issues that are potentially relevant to
Congress as it considers this fast-changing legal area. Several federal bills have been proposed in the
wake of the breach, such as to prohibit credit reporting agencies from charging a consumer to freeze her
credit, S. 1816, S. 1810, H.R. 3755, H.R. 3878, or to establish cybersecurity standards for credit bureaus,
S. 1982, H.R. 4028. The Equifax breach could also affect the perennial debate about whether a federal
data breach notification law is necessary—one bill to establish a 30-day deadline for notification to
consumers, H.R. 3806, has been introduced in the House.
In the litigation itself, the question of which court will hear many of the suits may be answered soon.
Multiple parties, including Equifax itself, have asked the Judicial Panel on Multidistrict Litigation
(“JPML”) to consolidate the federal cases in a single district court for coordinated pretrial proceedings;
the JPML is scheduled to hold hearings on that issue at the end of November. Finally, the breach has also
aroused the interest of several federal agencies: the Department of Justice, the FTC, and the Consumer
Financial Protection Bureau have all reportedly begun investigations into Equifax’s conduct that could
lead to civil or even criminal penalties.

Author Information

Austin D. Smith

Legislative Attorney

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