1. Implied contract
Courts recognize an injury in fact by actions that increase the risk of future harm, but only when highly sensitive personal information is made public without authorization.
"[T]he court still dismisses plaintiffs' breach of implied contract claims for failure to satisfy the injury in fact requirement to support Article III standing. Speculative or hypothetical injury is not sufficient to confer Article III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) ('[A]n injury in fact [must be] actual or imminent, not conjectural or hypothetical'.... While in some instances 'the injury in fact requirement can be satisfied by a threat of future harm or by an act which harms the plaintiff only by increasing the risk of future harm,' Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010) (where plaintiffs alleged publication and theft of their personal data) (quoting Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 634 (7th Cir. 2007)), courts that have dealt with factually analogous cases have held that unauthorized collection of personal information, in the absence of disclosure, does not create an economic loss sufficient to create an injury in fact. See, e.g., Low v. Linkedin Corp., 2011 U.S. Dist. LEXIS 130840, 2011 WL 5509848, *6 (N.D. Cal. Nov. 11, 2011) (holding that, unlike in Krottner, where there are no allegations that highly sensitive personal data has been stolen or exposed to the public, plaintiff fails to allege injury in fact); see also In re Google, Inc. Privacy Policy Litigation, 2012 U.S. Dist. LEXIS 183041, 2012 WL 6738343, *6 (N.D. Cal. Dec. 28, 2012) (dismissing plaintiffs' claims based on Google's policy of retaining personal information for lack of Article III standing); In re Doubleclick, Inc., Privacy Litig., 154 F. Supp. 2d 497, 525 (S.D.N.Y. 2001) (holding that unauthorized collection of personal information by a third-party is not 'economic loss'); In re JetBlue Airways Corp., Privacy Litig., 379 F. Supp. 2d 299, 327 (E.D.N.Y. 2005) (explaining that airline's disclosure of passenger data to third party in violation of airline's privacy policy had no compensable value)."[1]
[1] Frezza v. Google Inc., 2013 U.S. Dist. 12-14 LEXIS 57462 (N.D. Cal. Apr. 22, 2013)
2. Damages for contract breach
"[T]he court still dismisses plaintiffs' breach of implied contract claims for failure to satisfy the injury in fact requirement to support Article III standing. Speculative or hypothetical injury is not sufficient to confer Article III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) ('[A]n injury in fact [must be] actual or imminent, not conjectural or hypothetical'.... While in some instances 'the injury in fact requirement can be satisfied by a threat of future harm or by an act which harms the plaintiff only by increasing the risk of future harm,' Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010) (where plaintiffs alleged publication and theft of their personal data) (quoting Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 634 (7th Cir. 2007)), courts that have dealt with factually analogous cases have held that unauthorized collection of personal information, in the absence of disclosure, does not create an economic loss sufficient to create an injury in fact. See, e.g., Low v. Linkedin Corp., 2011 U.S. Dist. LEXIS 130840, 2011 WL 5509848, *6 (N.D. Cal. Nov. 11, 2011) (holding that, unlike in Krottner, where there are no allegations that highly sensitive personal data has been stolen or exposed to the public, plaintiff fails to allege injury in fact); see also In re Google, Inc. Privacy Policy Litigation, 2012 U.S. Dist. LEXIS 183041, 2012 WL 6738343, *6 (N.D. Cal. Dec. 28, 2012) (dismissing plaintiffs' claims based on Google's policy of retaining personal information for lack of Article III standing); In re Doubleclick, Inc., Privacy Litig., 154 F. Supp. 2d 497, 525 (S.D.N.Y. 2001) (holding that unauthorized collection of personal information by a third-party is not 'economic loss'); In re JetBlue Airways Corp., Privacy Litig., 379 F. Supp. 2d 299, 327 (E.D.N.Y. 2005) (explaining that airline's disclosure of passenger data to third party in violation of airline's privacy policy had no compensable value)."[1]
[1] Frezza v. Google Inc., 2013 U.S. Dist. 12-14 LEXIS 57462 (N.D. Cal. Apr. 22, 2013)
2. Damages for contract breach
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