Case Study: Amburgy V. Express Scripts, Inc.

Part II: Adhering to Tradition(al) Standing
Although the Ninth, Seventh, and Second Circuits have been receptive to accepting general anxiety and stress as a sufficient injury-in-fact for standing, the 3rd Circuit disagrees. Even thought the 8th Circuit hasn’t expressly ruled on this issue, district courts in said circuit have borrowed from Courts in the 8th Circuit have dismissed claims of general anxiety and stress, even where the plaintiff's injuries are more particularized. In Amburgy v. Express Scripts, Inc., the plaintiff alleged that he and other members of the class had spent “considerable time and money protecting themselves” after the company's inadequate security measures lead to the theft and ransom of customers' personal information. After Express Scripts notified its members of the breach, plaintiff contended that he and other class members had suffered injury by constantly having to monitor their bank and credit card accounts. However, the Court was unconvinced that this was an actual injury and not merely an inconvenience.
Borrowing
Although plaintiff argued that the exposure of this private information has created a genuine harm, the anxiety of constantly checking to make sure private information had not been released. However, the Court rejects this, focusing instead on harm equaling the use of private information. The Court reasoned the likelihood of such an occurrence is speculative, and the time when any such occurrence would come to pass (if ever) is entirely uncertain. Because of this uncertainty, the court declined to confer standing onto the plaintiff. The Court reasoned, where the timing and type of injury cannot be determined, such abstract injuries do not provide the injury-in-fact required for Article III