Per Court Order, Parties Weigh in on Standing in Altice Data Breach Settlement

After the court’s May 3 order to show cause on Article III standing, the parties have responded in a data breach case brought by employees against cable provider Altice.

Last week, the current and former employee plaintiffs said that the court’s earlier holding remains valid and undisturbed by TransUnion LLC v. Ramirez and on Thursday, Altice said that despite its long-standing position that the plaintiffs lack standing, it is prepared to move forward with the settlement currently awaiting preliminary approval.

The case concerns allegations that Altice, one of the nation’s largest cable TV and communications providers, failed to secure employees’ personally identifiable information which was exposed in a data breach. After the phishing attack, more than 50,000 current and former workers’ information was leaked.

In March 2021, Judge Jesse M. Furman issued a mixed ruling on Altice’s motion to dismiss. In relevant part, it rejected Altice’s argument that the plaintiffs lack constitutional standing to assert their claims. 

The case also took a trip to the Second Circuit on a separate arbitration issue with ultimate resolution in favor of the plaintiffs. Last summer, the parties reached an agreement that, if approved, would compensate individuals for time spent and expenses incurred in connection with the breach, offer them credit monitoring, and mandate that Altice enhance its security practices.

As previously reported, the employees moved for preliminary approval of that settlement last month. Since then, the court asked for briefing on constitutional standing, in particular referencing its earlier order and the Second Circuit’s opinion in McMorris v. Carlos Lopez & Assocs., LLC. Chiefly, the Southern District of New York court questioned whether these decisions remain good law in the aftermath of the Supreme Court’s decision in TransUnion.

In response, the plaintiffs said that while they understand that standing cannot be presumed, TransUnion does not invalidate the court’s earlier holding. They noted that though “various courts have considered the impact of TransUnion on data breach cases, no court has found that McMorris was superseded by TransUnion.”

For Altice’s part, its two-page response noted that had the parties not settled, it would have continued to contest the plaintiffs’ standing, “particularly given the manner and degree of evidence required to demonstrate standing successive stages of the litigation.” Altice did not opine as to whether the court’s earlier decision and McMorris remain good law.

The response further said that should the court find that the plaintiffs still have standing, it is prepared to “continue to support the settlement, which it believes is fair, reasonable, and provides adequate relief for the class.” 

Federman & Sherwood is interim lead class counsel. Altice is represented by Akin Gump Strauss Hauer & Feld.