The Defendants in Remijas v. The Neiman Marcus Group LLC, No. 14-3122 (7th Cir.), have filed a motion for rehearing en banc. The case treads new ground on the “standing of standing” (see my July 22, 2015 post).
Defendants list several grounds for rehearing, including that:
1. The panel’s opinion squarely conflicts with the most recent and controlling
decisions of the Supreme Court regarding the Article III requirement of a cognizable injury.
a. The panel held that there is standing when the “likelihood” of future injury
(here, future identity theft or credit card fraud) is “objectively reasonable.” Op. at 9. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013), explicitly rejected an “objectively reasonable likelihood test, holding that it was “inconsistent” with the Court’s requirement that a potential future injury be “imminent” and “certainly impending.” The panel’s ruling here is thus squarely at odds with Supreme Court precedent…
b. In addition, the record before the district court made clear that there was
no risk—and the plaintiffs did not allege— that they would be financially responsible for any fraudulent credit card charges. The panel ignored that evidence, and even twisted action by Neiman Marcus to protect its customers into actual harm suffered by the plaintiffs. The panel further ignored the fact that security incidents like this one involving payment card data—not other personal data like Social Security numbers—create no meaningful risk of identity theft. The panel instead relied on speculative and conjectural observations—nowhere alleged by plaintiffs—in an analysis that conflicts with two lines of Supreme Court precedent regarding Article III standing: (i) cases holding that Article III standing cannot be based on speculation and conjecture but requires concrete and particularized injuries that are actual or imminent,1 and (ii) cases holding that plaintiffs bear the burden of alleging specific, concrete facts that establish
Article III standing.
Read the brief here.