Back in October, I covered some additions to the “location data” complaint. On November 18, Microsoft filed a motion to completely dismiss the complaint with a heap of reasons why. One of these reasons is that Cousineau, the one who initiated this ordeal, failed to demonstrate that the leakage of location data inflicted any real harm to herself or whom she represents. We all saw that coming, right?
A. Cousineau Does Not Allege Injury-in-Fact to Support Article III Standing.
To establish the “irreducible constitutional minimum of standing,” a plaintiff must allege and prove three distinct elements: (1) injury in fact; (2) causation; and (3) redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998) (quotations omitted). “[I]injury in fact” refers to “a harm that is both ‘concrete’ and ‘actual or imminent, not conjectural or hypothetical.’” Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Article III therefore requires a plaintiff to allege a “distinct and palpable” injury, Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)), that is “certainly impending,” if not already suffered, Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).
If you wish, you can read the 33-page motion to dismiss for yourself. I’ll keep an eye out to see if this motion passes or not.