Judge Dismisses Data Breach Class Action Against Wendy’s for Lack of Standing

Written by Sam Crochet, Esq.

Last month, the defense community scored a victory in the ongoing debate as to when theft of an individual’s data becomes a concrete injury for purposes of establishing “standing” to sue. In Torres v. Wendy’s, the Florida Plaintiff filed a federal class action against the fast food chain following an early-2016 data breach. The Plaintiff claimed he experienced identity theft and two fraudulent charges on his debit card, which he contended were sufficient to trigger standing. The Court granted Wendy’s Motion to Dismiss, reasoning that, since the Plaintiff suffered no out-of-pocket expenses, he failed to allege actual harm sufficient to establish an injury-in-fact. The Court also addressed the Plaintiff’s claim he had standing due to the threat of future harm given the potential fraud and identity theft. The Court leaned on precedent regarding this issue, ruling the “Plaintiff’s alleged harm [was] highly speculative and the asserted injuries [did] not appear ‘certainly impending.’”

The Plaintiff was granted leave to file an Amended Complaint to cure the deficiencies. We will continue to monitor the issues in this case and keep you apprised of any developments on the “standing” front.