CareFirst Data Facing Supreme Court Heating Following Breach

In June 2014, hackers succeeded in accessing to a database controlled by CareFirst BlueCross BlueShield and the secured health information of 1.1 million of its members. The types of information exposed due to the hack included names, email addresses, dates of birth, and subscriber ID numbers.

Lawsuits were submitted following the breach, with the plaintiffs seeking damages for the heightened risk of identity theft and fraud they faced due to the breach.

In 2016, the U.S. District Court for the District of Columbia dismissed one punitive class action lawsuit against CareFirst – Chantal Attias vs. Carefirst, Inc. – for lack of legal standing of basis. More complaints were also thrown out by two federal district courts. However, on August 1, 2017, the case was revived when the U.S. District Court for the District of Columbia permitted the case to proceed, even though there was not a concrete, identifiable injury to plaintiffs.

CareFirst filed a motion for a stay to allow an appeal to be submitted with the Supreme Court. Last week, U.S. District Court for the District of Columbia granted a stay of 90 days subject to the filing of a Petition for a Writ of Certiorari with the United States Supreme Court, agreeing there was ‘good cause’ and that a “substantial question” needed to be addressed.

In the motion CareFirst outlined, “The Supreme Court has yet to examine the issue of standing in the context of a data breach case.”

CareFirst wants the case rule on by the Supreme Court as it believes guidance is required by federal district and appellate courts to help them sort cases where a cognizable injury-in-fact has been sustained from those where plaintiffs are not able to claim real or immediate harm.

Federal district and appellate courts have had difficulty reaching consensus when the prospect of future injury due to a data breach constitutes a substantial risk of actual harm.

The motion states, “The fact that reasoned jurists have come to differing conclusions on the standing of plaintiffs from this same data breach, let alone the differences in application of the principles of standing among other jurisdictions in different data breaches, suggests that there is a reasonable probability that four members of the Supreme Court would consider the underlying issue sufficiently meritorious for a grant of certiorari.”

CareFirst outlined that if the district court goes ahead with the case, “It will encourage others to bring suits following other data breaches without allegations of real and immediate harm.