With the onslaught of litigation resulting from Target’s data privacy breaches, including recently filed class actions within the Sixth Circuit in OhioKentucky, and Tennessee federal district courts, there is an increased focus on the appropriateness of class certification in such cases.  Can cardholders whose information was stolen but not used as of the date of the case filing comprise a class?  What about cardholders whose information was stolen and used but whose accounts were reimbursed before the cardholder realized their information was stolen?

The Supreme Court may be providing guidance soon on those issues.  As we reported here, the Sixth Circuit recently re-affirmed the certification of a liability-only class of Ohio consumers who alleged design defects in washing machines that contributed to the production of mold and mildew (without regard to whether the consumers had actually experienced mold or mildew), despite the Supreme Court’s directive that it reconsider its previous affirmation of the same class in light of the Supreme Court’s recent decision in Comcast v. Behrend,133 S. Ct. 1426 (2013).  The Seventh Circuit also re-affirmed in a similar case.

The defendants filed certiorari petitions in both cases (Whirlpool and Sears) and the petitions have been listed as distributed for multiple conferences – January 10, 17 and 24, 2014.   We should know soon as to whether the Sixth Circuit will have Supreme Court guidance on whether individuals who have suffered no injury as of the date of filing can be included in a class.