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Eighth Circuit cites Spokeo ruling in dismissing class action against cable company

By Jessica Karmasek | Sep 23, 2016


ST. LOUIS, Mo. (Legal Newsline) - The U.S. Court of Appeals for the Eighth Circuit this month, citing the U.S. Supreme Court’s recent decision in Spokeo v. Robins, agreed to dismiss a class action lawsuit brought against a cable company over a former customer’s personally identifiable information.

“His complaint asserts ‘a bare procedural violation, divorced from any concrete harm,’” Circuit Judge Steven Colloton wrote in the Sept. 8 opinion.

In Braitberg v. Charter Communications, the lead plaintiff, Alex Braitberg, alleged Charter retained his information in violation of a section of the Cable Communications Policy Act.

The CCPA governs the collection, dissemination and destruction of the personal information of the customers of cable service subscribers. More specifically, it provides that “[a] cable operator shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for such information[.]” It also provides a private right of action for parties “aggrieved by any act of a cable operator in violation of its provisions.”

Prevailing plaintiffs may recover statutory damages in the amount of $100 per day of violation or $1,000, whichever is greater, in addition to punitive damages and attorneys’ fees.

Braitberg, a subscriber of cable services from Charter from July 2007 through June 2010, alleged the company required him to provide his information, including his address, telephone number and Social Security number, to activate his service.

However, the cable provider retained all of his information -- Braitberg confirmed in March 2013 -- despite not being a subscriber for almost three years.

Braitberg argues in the class action that the information was no longer necessary for Charter to provide services, collect payments, etc. And in retaining his and others’ information, the company invaded their federally protected privacy rights and failed to provide them the full value of services because the company didn’t destroy their information.

The U.S. District Court for the Eastern District of Missouri, St. Louis, granted Charter’s motion to dismiss.

A three-judge panel of the Eighth Circuit affirmed the federal district court’s decision, holding that the plaintiff’s allegation was, on its own, insufficient to establish Article III standing.

Pointing to the Supreme Court’s ruling in Spokeo, the panel said Braitberg did not allege an injury in fact as required by Article III.

The nation’s high court explained in its May decision that for an injury to be particularized, it must affect the plaintiff in a “personal and individual way.” The injury-in-fact also must be “concrete,” which means “real” and “not abstract.” But “concrete” is not necessarily synonymous with “tangible.”

In Braitberg, the plaintiff failed to allege a concrete harm and an economic injury, the Eighth Circuit concluded.

“Braitberg alleges only that Charter violated a duty to destroy personally identifiable information by retaining certain information longer than the company should have kept it,” Colloton wrote, joined by Chief Judge William Jay Riley and Circuit Judge Jane Kelly. “He does not allege that Charter has disclosed the information to a third party, that any outside party has accessed the data, or that Charter has used the information in any way during the disputed period. He identifies no material risk of harm from the retention; a speculative or hypothetical risk is insufficient.

“Although there is a common law tradition of lawsuits for invasion of privacy, the retention of information lawfully obtained, without further disclosure, traditionally has not provided the basis for a lawsuit in American courts.”

The panel said it also wasn’t convinced that Braitberg alleged an economic injury based on an alleged “diminution of the value” of the services he purchased from the cable company.

“Braitberg alleges that consumers place a value on protecting their personal data against improper access and unauthorized secondary use. Therefore, he contends, Charter’s retention of personal information deprives him of ‘the full monetary value’ of his transaction with the company,” Colloton explained.

“But without a plausible allegation that Charter’s mere retention of the information caused any concrete and particularized harm to the value of that information, Braitberg has not adequately alleged that there was any effect on the value of the services that he purchased from Charter.”

The Eighth Circuit’s ruling is potentially good news for other defendants facing similar privacy lawsuits, some argue.

Hanley Chew, of Fenwick & West LLP, regularly advises companies on data breaches and cybercrimes, network and data security, and internal investigations.

Chew wrote for the firm that Braitberg will give defendants “ammunition to challenge standing where the complaint is premised on a violation of a statutory right.”

From Legal Newsline: Reach Jessica Karmasek by email at

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