What constitutes actionable consumer injuries post-breach or data misuse is a hotly contested topic. As we reported in our Advertising blog late last year the FTC hosted a workshop on December 12th to look at the issue. A large focus during the workshop was what constitutes harm to consumers. While there is a school of thought that consumers should have standing to bring action only if there is actual harm to consumers, panelists attending the workshop argued that potential future harm should be actionable as well. We anticipate hearing more from the FTC as a result of this workshop during 2018.

Putting it Into Practice: The focus on injuries is a reminder to companies to look at their data protection practices. While data breaches may be inevitable (not “if” but “when” is the oft-quoted mantra), what happens after the breach is not as predictable. Companies should keep in mind that there is not a guarantee that they will get rid of a case from a standing perspective. With this in mind, ensuring appropriate security measures -and assessing if information really needs to be collected and stored in the first place- can be invaluable.