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Will You Be Able To Sue Equifax for Stolen Personal Information?

equifax data breach

As we reported earlier, the Equifax breach was the worst leak of personal information of all time.  The incident affects possibly as many as 143 million people.  We also mentioned in another post, that you might be able to sue Equifax.  But only if you read through the fine print properly.  Equifax themselves have made this information available to you via their online tool.  For more information on how to use that site, or to find out more about the breach, check out my earlier article.  But, what I want to talk about is the information found on that website, related to your rights in all of this.

There is no doubt about it, this is a huge eff up.  And it doesn’t seem right to have all of your information exposed and available for the taking.  But like I said, you might be able to sue Equifax.  At the bottom of their website is a section called “Terms of Use”.  In there, paragraph 4 is bolded and in upper case.  It tells the site visitors that you agree to waive your right to sue, and instead must “resolve all disputes by binding, individual arbitration”.  That is, if you want to settle quickly.  Equifax is essentially saying that this is your best option.  But my guess is because they know how much money it will cost to defend a class action lawsuit.

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Here is what paragraph 4 states:

AGREEMENT TO RESOLVE ALL DISPUTES BY BINDING INDIVIDUAL ARBITRATION. PLEASE READ THIS ENTIRE SECTION CAREFULLY BECAUSE IT AFFECTS YOUR LEGAL RIGHTS BY REQUIRING ARBITRATION OF DISPUTES (EXCEPT AS SET FORTH BELOW) AND A WAIVER OF THE ABILITY TO BRING OR PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION. ARBITRATION PROVIDES A QUICK AND COST EFFECTIVE MECHANISM FOR RESOLVING DISPUTES, BUT YOU SHOULD BE AWARE THAT IT ALSO LIMITS YOUR RIGHTS TO DISCOVERY AND APPEAL.

But, only if you opt to continue enrollment.  It will be up to the courts to decide whether arbitration agreements are enforceable.  The legal standard is whether they’re “unconscionable”.  But we will find out soon enough because class-action lawsuits are already being lodged on behalf of breach victims.  New York Attorney General Eric Schneiderman strongly challenged the terms of service in a tweet to his followers, stating: “This language is unacceptable and unenforceable.  My staff has already contacted @Equifax to demand that they remove it”.  Which leads me to believe that this is just a way to scare you.

So what’s your best bet with all of this?  Honestly, it’s hard to say how this will go.  You could come out on top if you stick it out through a class-action law suit. But who knows how long that will take?  And really, how much you might get from it?  The easier route is likely to settle via an arbitration, but you might not get as much money as you would through the class-action.  This one is particularly difficult.  Especially because this is extremely sensitive information. And does money actually make it better?  Part of me says, of course it does.  But there’s part of me that says your personal information is invaluable, and therefore can’t be solved by way of payment.