Benefit of the But-For Bargain: Assessing Economic Tools for Data Privacy Litigation

Michael Kheyfets has published an article in the Journal of Technology Law & Policy entitled “Benefit of the But-For Bargain: Assessing Economic Tools for Data Privacy Litigation.” In this paper, Mr. Kheyfets provides a study of how economic tools are applied to the analysis of class certification and damages issues in the emerging area of data breach class actions. 

Specifically, Mr. Kheyfets examines an often-asserted theory of harm that when sensitive data were exposed as part of breach, plaintiffs did not receive the “benefit of the bargain” they believed they entered into with defendants. Mr. Kheyfets discusses the relevant economic frameworks for assessing “benefit of the bargain” claims, traces the evolution of economic tools applied to study such claims, and identifies key issues for consideration as economic analysis of data breach cases continues to become more rigorous.