For the last five years BCLP has published the leading analysis of data breach class action litigation.1 As part of that study BCLP has reviewed every data breach class action complaint against a private company filed in (or removed to) federal court.2 Among other variables, BCLP tracked the legal theories asserted by plaintiffs in data breach litigation.
As our 2019 Data Breach Litigation Report indicates, the most popular legal theory utilized by plaintiffs in data breach class action litigation is negligence. Indeed, while 47% of data breach class actions complaints asserted negligence as the primary (or only) legal theory, an additional 45% of data breach class action complaints asserted negligence as a secondary, or alternative, legal theory. As a result, 92% of data breach class action complaints alleged negligence as a legal theory of recovery.3
BCLP anticipates that in 2020, the most popular legal theory will shift from negligence to the CCPA as plaintiffs attempt to pursue the statutory damages referenced within Section 1798.150 of the Act. While the CCPA may become the most popular legal theory, based upon historical trends, plaintiffs are likely to continue to allege additional legal theories including negligence.