US Data Privacy Litigation: Breach of contract and warranties litigation

This article is part of a series on US Data Privacy Litigation.

The data privacy litigation landscape in the U.S. has seen a rise in lawsuits brought by private individuals for privacy violations under theories of breach of contract and breach of warranty. These legal claims are often the result of privacy incidents or violations and seek to leverage a company's own privacy notice, terms of service, advertisements or other public statements as contractual commitments or assurances.

Breach of contract and breach of warranty claims have a long-standing history as causes of action and have generated an enormous amount of relevant case law before plaintiffs began raising arguments in the context of privacy incidents. This analysis will cover four types of claims — breach of express contract, breach of implied contract, breach of express warranty and breach of implied warranty — and discuss the strategies plaintiffs have used, both successfully and unsuccessfully, to advance these claims in court.