Sony Loses Bid to Dismiss Data Breach Class Action

, The Litigation Daily


Data hacker
Data hacker

In a ruling that could help consumers who have sued Target and other retailers over data breaches, a federal judge on Tuesday refused to dismiss a class action against Sony Corp. over a 2011 data breach that affected PlayStation users. U.S. District Judge Anthony Battaglia in San Diego held that the plaintiffs do have standing under the U.S. Supreme Court's decision last year in Clapper v. Amnesty International.

In April 2011 hackers broke into Sony's PlayStation Network, a popular video gaming network, pilfering the personal data of 77 million users. Lawsuits followed, which were consolidated before Battaglia. The plaintiffs alleged 53 violations of state and federal laws.

Employing an argument that's been successful in other data breach suits, Sony's lawyers at Ropes & Gray and DLA Piper argued that the plaintiffs couldn't show that their personal data was accessed by a third party, and therefore lacked standing under Clapper. In that case, the high court held that a group of lawyers and journalists couldn't challenge U.S. wiretapping laws because they failed to show that their communications were sure to be intercepted. To have standing, the plaintiffs alleged that injury must be "certainly impending," the court wrote.

In Tuesday's decision, Battaglia ruled that the alleged harm from the data breach wasn't too speculative. In his view, it didn't matter that individual plaintiffs couldn't show with certainty that hackers accessed or planned to access their personal data. "Plaintiffs have plausibly alleged a 'credible threat' of impending harm based on the disclosure of their personal information following the intrusion," he wrote. 

Still, Sony did manage to win the dismissal of 45 of 53 claims. The plaintiffs can now only pursue state law claims on behalf of consumers in a handful of states, including California, Texas and New Hampshire.

Harvey Wolkoff and Mark Szpak of Ropes & Gray represent Sony, along with William Boggs and Amanda Fitzsimmons of DLA Piper. Wolkoff declined to comment.

The plaintiffs are represented by several firms, including Barnow and Associates; Robbins, Geller, Rudman & Dowd; and Grant & Eisenhofer. Plaintiffs counsel Ben Barnow didn't return a request for comment.

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