By David Cohen and Ani-Rae Lovell, Ropes & Gray LLP ( April 24, 2017, 6:30 PM EDT) -- A common tactic in defending federal consumer data breach litigation is challenging the plaintiff's standing on a motion to dismiss. Specifically, defendants contest whether the plaintiff suffered an actual or imminent injury from the breach sufficient to create a "case or controversy" under Article III of the U.S. Constitution. Most such challenges are "facial" — that is, defendants argue that the complaint fails to plausibly plead an actual or imminent injury. These facial challenges are frequently successful. They are not, however, a defendant's only option for seeking dismissal on standing grounds. A recently decided district court case, Foster v. Essex Property Inc., No. 5:14-cv-05531-EJD, 2017 WL 264390 (N.D. Cal. Jan. 20, 2017), demonstrates an additional avenue for challenging standing in data breach litigation — a so-called "factual" challenge to standing, which is based on evidence. Defendants should not overlook this potentially powerful tool when assessing their options for seeking early termination of the litigation....