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2nd Circ. Clarifies Data Breach Injury Standing Threshold

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Morrison & Foerster was featured in Law360’s coverage of a recent decision in McMorris v. Carlos Lopez & Associates, LLC.

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Morrison & Foerster was featured in Law360’s coverage of a recent decision in McMorris v. Carlos Lopez & Associates, LLC.In a 21-page opinion, a unanimous three-judge panel in the U.S. Court of Appeals for the Second Circuit held that plaintiffs had failed to establish Article III standing to sue over disclosure of some personal information. In particular, she had not alleged a sufficient risk of identity theft or fraud because she had not allege that her information was subject to a targeted data breach or that her information (or anyone else’s) had been misused.Joe Palmore, Michael Miller, Lena Hughes, and Janie Buckley led the MoFo team representing Carlos Lopez & Associates.Read the <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt8dfafee4f16dda10/62732221deee7329767e7a1a/210426-circ-clarifies-data-breach-injury.pdf">full article</a>.

2nd Circ. Clarifies Data Breach Injury Standing Threshold

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<div class="videoWrapper">Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Chambers USA describes him as “an outstanding oral advocate,” who is “calm, focused, effective and doesn’t back down,” and has “complete command of the facts.” Joe “writes great briefs” (Chambers USA), with one client recounting that “the Court mirrored the language he thoughtfully chose in its ultimate order” (Legal 500).</div>During a recent U.S. Supreme Court term, Joe successfully argued two cases: Law360 called one of them (Thole v. U.S. Bank) a “landmark ruling” that “made huge waves in the ERISA litigation arena” and named the other (Atlantic Richfield Co. v. Christian) one of the “biggest environmental law decisions” of the year. Joe’s oral argument before the Supreme Court on the preemptive scope of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in CTS Corp. v. Waldburger was described in the National Law Journal as “brilliant” and a “template for anyone arguing a statutory case before these nine justices in the future.”Joe’s practice extends to federal and state appellate courts across the country, where he has handled appeals on issues as varied as antitrust, class actions, communications, false advertising, intellectual property, and securities. Joe has secured important victories in the Second Circuit, where he clerked. For example, he prevailed in a securities class action for an online marketplace and a fraud case against an investment bank. A <a href="/resources/news/210426-no-circuit-split" target="_self">Reuters columnist</a> called one of Joe’s Second Circuit wins a “major ruling” that “put significant qualifiers” on constitutional standing to sue in data breach cases.Joe also has a successful track record in the Ninth Circuit, including winning for a beverage company defending against an antitrust suit and for an equipment manufacturer embroiled in a dispute over U.S. discovery for foreign litigation. One of Joe’s victories in the Federal Circuit was described by another practitioner as having “saved from the fire tens of thousands of patents that would have gone up in smoke.” And Joe has won appeals in multiple state appellate courts, including those of New York (both the Court of Appeals and First Department), California, Massachusetts, New Jersey, and Kentucky.Before joining Morrison Foerster, Joe served as an Assistant to the Solicitor General at the U.S. Department of Justice. During his nearly five years in the Solicitor General’s Office, Joe had principal responsibility for briefing the constitutionality of the Affordable Care Act’s minimum coverage provision, which was upheld in the Supreme Court’s landmark decision in NFIB v. Sebelius. For his work on that case, Joe received the Attorney General’s Award for Exceptional Service—the Department of Justice’s highest honor for employee performance. He also received the Environmental Protection Agency General Counsel’s medal for his successful defense of the EPA’s interstate air pollution rules in EPA v. EME Homer City Generation.Before working for the Justice Department, Joe spent three years as Deputy General Counsel at the Federal Communications Commission, where he oversaw all litigation involving constitutional, statutory, and administrative-law challenges to the agency’s actions and presented oral argument in the D.C. Circuit and other federal courts of appeals. His FCC experience includes virtually all aspects of communications regulation, including broadcast, cable, wireless, wireline, and Internet.Joe clerked for Justice Ruth Bader Ginsburg of the U.S. Supreme Court, Judge John Gleeson of the U.S. District Court for the Eastern District of New York, and Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit in New York. Joe earned his J.D. from the University of Virginia School of Law, his M.A. in legal history from the University of Virginia, and his A.B. magna cum laude from Harvard University.Joe is a Fellow in the American Academy of Appellate Lawyers, selected for his distinction as an appellate lawyer. He is also a board member of the Historical Society of the District of Columbia Circuit; a master in, and former officer of, the Coke Appellate Inn at Court; a member of the Technology Litigation Advisory Committee of the U.S. Chamber Litigation Center; and a co-chair of the Federal Communications Bar Association’s judicial practice committee. In 2021, the American Cancer Society Cancer Action Network gave Joe its Judicial Advocacy Initiative Award for his pro bono work in healthcare cases.He is recommended annually by Chambers USA, Legal 500, and Best Lawyers for appellate law.<h4>Supreme Court Arguments</h4><ul><li>Thole v. U. S. Bank, N. A. <a href="/resources/video-audio/200113-thole-v-u-s-bank" target="_self">(audio recording)</a> Whether Article III of the Constitution requires a plaintiff to demonstrate individual financial loss or the imminent risk of financial loss to assert a fiduciary duty claim against a pension plan</li></ul><ul><li>Atlantic Richfield Co. v. Christian <a href="/resources/video-audio/191203-atlantic-richfield-v-christian" target="_self">(audio recording) </a>Whether state-law pollution clean-up remedies are barred by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)</li></ul><ul><li>CTS Corp. v. Waldburger <a href="/resources/video-audio/191203-atlantic-richfield-v-christian" target="_self">(audio recording)</a> Whether the U.S. Court of Appeals for the Fourth Circuit correctly interpreted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to apply to statutes of repose as well as to statutes of limitations</li></ul><ul><li>Abramski v. United States <a href="/resources/video-audio/140122-abramski-v-united-states.html" target="_self">(audio recording)</a> Involving the materiality of a false statement made when purchasing a firearm</li></ul><ul><li>Fernandez v. California <a href="/resources/video-audio/131113-fernandez-california" target="_self">(audio recording)</a> Whether the Fourth Amendment prohibits a warrantless search of a residence when the defendant has previously objected to a search but is no longer present and the co-tenant consents</li></ul><ul><li>Florida v. Harris <a href="/resources/video-audio/121031-florida-harris" target="_self">(audio recording)</a> Whether a drug-detection dog’s alert to the exterior of a vehicle provides an officer with probable cause to conduct a warrantless search of the interior of the vehicle</li></ul><ul><li>Horne v. Department of Agriculture <a href="/resources/video-audio/130320-horne-department-agriculture" target="_self">(audio recording)</a> Involving jurisdictional requirements for Takings Clause claims</li></ul><ul><li>US Airways v. McCutchen <a href="/resources/video-audio/121127-us-airways-inc-mccutchen" target="_self">(audio recording)</a> Involving the limits on equitable relief available in suits against ERISA plans by beneficiaries and participants</li></ul><ul><li>Pacific Operators Offshore v. Valladolid <a href="/resources/video-audio/111011-pacific-operators-offshore-valladolid" target="_self">(audio recording)</a> Involving the territorial limits on compensation available under the Outer Continental Shelf Lands Act</li></ul><ul><li>Roberts v. Sea-Land Services <a href="/resources/video-audio/120111-roberts-v-sea-land-services" target="_self">(audio recording)</a> Involving benefit calculations under the Longshore and Harbor Workers’ Compensation Act</li></ul><ul><li>Borough of Duryea v. Guarnieri <a href="/resources/video-audio/110322-borough-duryea-guarnieri" target="_self">(audio recording)</a> Whether state and local government employees may sue their employers for retaliation under the First Amendment’s Petition Clause when they petition the government on matters of private concern</li></ul><ul><li>Chase Bank USA v. McCoy <a href="/resources/video-audio/101208-chase-bank-usa-mccoy" target="_self">(audio recording)</a> Whether Regulation Z of the Truth in Lending Act requires a creditor to give cardholders advance notice any time they raise the interest rate for default</li></ul><h4>Representative Appellate Arguments</h4><ul><li>Wamai v. Industrial Bank of Korea (2d Cir.) <a href="/resources/video-audio/221013-wamai-v-industrial-bank-of-korea" target="_self">(audio recording)</a> Secured affirmance of forum non conveniens dismissal of fraudulent conveyance claims against foreign bank</li></ul><ul><li>Cohen v. Apple Inc. (9th Cir.) <a href="/resources/video-audio/211210-andrew-cohen-v-apple-inc" target="_self">(video)</a> Successfully defended dismissal of state-law claims as preempted by Communications Act</li></ul><ul><li>VeroBlue Farms USA Inc. v. Canaccord Genuity LLC (2d Cir.) <a href="/resources/video-audio/210901-veroblue-farms-usa-inc-v-canaccord-genuity-llc" target="_self">(audio recording)</a> Successfully defended dismissal of fraud claim against investment bank</li><li>McLaren v. The UPS Store Inc. (3d Cir.) <a href="https://www2.ca3.uscourts.gov/oralargument/audio/22-1379_22-1380_McLarenv.UPS.mp3" target="_blank">(audio recording)</a> Secured reversal of order remanding cases to state court</li><li>Cho et al. v. BlackBerry Limited et al (2d Cir.) <a href="/resources/video-audio/211030-cho-v-blackberry-ltd" target="_self">(audio recording)</a> Successfully defended dismissal of named plaintiffs’ individual securities claims on res judicata grounds in putative securities class action</li><li>Richardson v. The UPS Store, Inc. (Massachusetts Supreme Judicial Court) <a href="/resources/video-audio/200409-richardson-v-the-ups-store" target="_self">(audio recording)</a> Secured win on question certified by federal district court on meaning of Massachusetts notary statutes</li><li>Firefighters’ Retirement System, et al. v. Consulting Services Group (5th Cir.) <a href="/resources/video-audio/180705-firefighters-retirement-consulting-services-group" target="_self">(audio recording)</a> Secured reversal of district court and dismissal with prejudice of accounting malpractice suit as time-barred</li><li>Altayyar v. Etsy, Inc. (2d Cir.) <a href="/resources/video-audio/190418-altayyar-v-etsy" target="_self">(audio recording)</a> Secured dismissal of securities fraud case</li><li>Raytheon Company v. Indigo Systems Corporation (Fed. Cir.) <a href="/resources/video-audio/180112-raytheon-company-indigo-systems-corporation" target="_self">(audio recording)</a> Defeated attempt to upend jury verdict of no-liability in long-running trade secrets case </li><li>First Advantage LNS, Inc., et al. v. LexisNexis Risk Solutions, Inc. (New York Appellate Division, First Department) <a href="/resources/video-audio/190102-first-advantage-v-lexisnexis" target="_self">(video)</a> Secured victory for LexisNexis in significant contract dispute</li><li>Nikon Corporation v. ASML US, Inc. (9th Cir.) <a href="/resources/video-audio/171207-nikon-corporation-asml-us" target="_self">(video)</a> Secured U.S. discovery for use in foreign patent litigation</li><li>Odunbaku v. Odunbaku (New York Court of Appeals) <a href="/resources/video-audio/161020-odunbaku-v-odunbaku" target="_self">(video)</a> Secured a unanimous ruling for client seeking child support and established important procedural protections for litigants in New York’s family courts</li><li>Bank v. Uber Technologies, Inc. (2d Cir.) Obtained dismissal of a Telephone Consumer Protection Act suit on the ground that the call was political speech</li><li>Helping Hand Tools et al. v. U.S. Environmental Protection Agency et al. (9th Cir.) <a href="/resources/video-audio/160719-helping-hand-tool-environmental-protection" target="_self">(video)</a> Secured a victory in a case that set an important precedent for regulation of greenhouse gas emissions from combustion of renewable biofuels</li><li>Immersion Corp. v. HTC Corp. (Fed. Cir.) <a href="/resources/video-audio/160506-immersion-corp-htc-corp" target="_self">(audio recording)</a> Securing reversal of district court, successfully defended the timeliness of Immersion’s patent application and, by extension, those of tens of thousands of patent owners whose patents were at risk of invalidation</li><li>Nelson Coniglio, et al. v. Bank of America, NA (11th Cir.) Secured reversal of default judgment against Bank of America</li><li>Gregory Berry v. LexisNexis Risk & Information (4th Cir.) <a href="/resources/video-audio/150915-gregory-berry-lexisnexis-risk-information" target="_self">(audio recording)</a> Defended settlement of one of the largest class actions ever certified from objector challenges</li><li>In re: GNC Corporation; Triflex Products Marketing and Sales Practices Litigation (4th Cir.) <a href="/resources/video-audio/150325-gnc-corporation-marketing-sales-practices" target="_self">(audio recording)</a> Secured dismissal of false-labelling claim against GNC</li><li>Core Communications, Inc. v. FCC (D.C. Cir.) <a href="/resources/video-audio/091016-core-communications-inc-fcc" target="_self">(audio recording)</a> Successfully defended FCC’s intercarrier compensation rules</li><li>Star Wireless LLC v. FCC, et al. (D.C. Cir.) <a href="/resources/video-audio/080313-star-wireless-llc-fcc" target="_self">(audio recording)</a> Defeated challenge to imposition of monetary forfeiture for violation of wireless auction anti-collusion rules</li></ul>

Joseph Palmore

Partner

Michael Miller has nearly three decades experience helping clients successfully navigate through the most complex litigation and regulatory challenges they face. He regularly represents clients in major antitrust and class action litigation, and in managing antitrust risks presented by complex transactional and other business matters, including strategy and structuring of transactions to overcome potential regulatory hurdles and achieve strategic business objectives.Mike’s practice includes all aspects of complex financial services, antitrust, privacy, and commercial litigation. He also has an active practice representing clients in merger control proceedings in the United States, Europe, and other jurisdictions as part of the multinational merger notification and review process.Mike has considerable experience representing financial services companies in investigations initiated by various antitrust regulators, the Consumer Financial Protection Bureau, the New York Department of Financial Services, and others. Mike has a history of representing companies before the U.S. and EU competition law regulators in the telecommunications, semiconductors, software, network services, pharmaceutical, industrial, financial services, consumer products, chemical, and technology industries.Mike maintains an active pro bono practice, regularly representing New York City public school students seeking special education and other services from the City and State. <h4 dir="ltr">Representative Experience</h4><ul><li>Glenmark Pharmaceuticals (Eastern District of Pennsylvania). Representing Glenmark in a federal antitrust multidistrict litigation alleging price fixing and market allocation of generic drugs by manufacturers of generic drugs.</li><li>In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (Eastern District of New York). Representing a major financial institution in federal antitrust class and individual actions alleging that the payment card practices of the defendant card networks and financial institutions constitute an unreasonable restraint of trade and illegal monopolization. This is likely the largest private antitrust case ever brought.</li><li>Copperweld Wiring (Northern District of Alabama and other courts). Representing wire manufacturer in antitrust and false-advertising suit against three major copper wire competitors.</li><li>SoftBank/Sprint/T-Mobile. Represented Sprint and SoftBank before DOJ/FCC and at trial against multiple State Attorneys’ General seeking to block the T-Mobile-Sprint merger as anti-competitive. After a two-week trial, the Court dismissed the case and the merger closed successfully. </li><li>Arm Limited/Softbank. Represented SoftBank Group and Arm Limited on complex antitrust and national security issues arising from NVIDIA’s proposed acquisition of Arm from SoftBank for $65 billion.</li><li>Data Breach and Privacy Matters. Representing a variety of clients in connection with regulatory and litigation issues arising out of data breach events and general data security counseling and compliance.</li><li>FCRA Matters. Representing significant information-service provider in actions around the country alleging violations of the FCRA and related statues and in federal and state regulatory proceedings.</li><li>Southwest Gas Holdings. Obtained antitrust regulatory clearances in connection with Southwest Gas Holdings’ $2 billion acquisition of Questar Pipeline and subsequent sale of certain assets. </li><li>Programmatic Advertising. Represented digital programmatic healthcare advertising firm in lawsuit seeking to block acquisition.</li><li>Alcon Vision (Southern District of New York). Won dismissal of all antitrust claims against a contact lens manufacturer.</li><li>Dale v. T-Mobile, et al. (Northern District of Illinois). Won dismissal of antitrust lawsuit against SoftBank. </li><li>EMV Litigation (Northern District of California). Won dismissal of class action antitrust litigation arising out of the introduction of chip card standards to the US payments sector.</li><li>In re Late Fee and Over-Limit Fee Antitrust Litigation (Northern District of California). Won dismissal of class action challenging late and over-limit fees. Dismissal affirmed on appeal.</li><li>In re Dental Supply Antitrust Litigation (Eastern District of New York). Negotiated resolution of individual and class action antitrust litigation in the dental supplies industry. </li><li>Antitrust and Bank Holding Company Act Litigation (Middle District of Florida). Won dismissal of sprawling antitrust and BHCA litigation on behalf of major financial institution.</li><li>Amadeus IT Group (Southern District of New York). Won dismissal of class action litigation in the travel services industry.</li><li>Overdraft Litigation (Eastern District of Pennsylvania). Represented a major financial institution in successfully resolving class action litigation arising out of overdraft practices.</li><li>Other Merger Clearances. Has obtained merger clearances in the US and EU for clients in the financial services, telecommunications, network services, pharmaceuticals, consumer products, oil and gas, consumer products, chemical, packaging, and metals industries.</li><li>GSE FCRA Litigation (Ninth Circuit, District of Arizona). Won dismissal of FCRA litigation against a large government-sponsored enterprise in the District of Arizona.</li><li>Privacy Litigation (District of Colombia; District of Columbia Superior Court). Won motions to dismiss in two actions that alleged violations of various statutory rights to privacy stemming from customer service practices. Both dismissals affirmed on appeal.</li><li>Richbell Information Services, Inc., et al. v. Jupiter Partners LP, et al. Represented Lord Jacob Rothschild and several publicly traded English investment trusts in the New York Commercial Division in litigation arising out of disputes among shareholders. Resolved successfully for client.</li></ul>

Michael B. Miller

Janie Buckley is a Litigation associate in Morrison Foerster’s New York office.Ms. Buckley earned her J.D. magna cum laude from New York University School of Law and was elected to the Order of the Coif. During her time at New York University School of Law, Ms. Buckley served as a staff editor of the Journal of Intellectual Property and Entertainment Law, and was a member of the Law Women group and the Art Law Society. She was honored as an Allen Scholar and as a recipient of the Ira E. Bilson ’55 Scholarship, which is awarded based upon academic merit. While in law school, Ms. Buckley served as a legal intern for South Brooklyn Legal Services in the Housing Unit. Prior to law school, Ms. Buckley was an intern in the Legal Department of the Charlotte-Mecklenburg School District in North Carolina.She earned her B.A. in Art History magna cum laude from New York University, where she was a recipient of the Founder’s Day Award and was elected to Phi Beta Kappa.

Janie C. Buckley

Associate

Appellate + Supreme Court