Privacy & Information Security Law Blog

On August 21, 2017, the United States Court of Appeals for the Eighth Circuit affirmed the dismissal of a putative class action arising from the Scottrade data breach. Notably, however, the Eighth Circuit did not agree with the trial court’s ruling that the plaintiff lacked Article III standing, instead dismissing the case with prejudice for failure to state a claim. 

On May 26, 2017, Alcoa Community Federal Credit Union (“Alcoa”), on behalf of itself, credit unions, banks and other financial institutions, filed a nationwide class action against Chipotle Mexican Grill, Inc. (“Chipotle”). The case arises from a breach of customer payment card data. The putative class consists of all such financial institutions that issued payment cards, or were involved with card-issuing services, for customers who made purchases at Chipotle from March 1, 2017, to the present. Plaintiffs allege a number of “inadequate data security measures,” including Chipotle’s decision not to implement EMV technology. 

On May 23, 2017, various attorneys general of 47 states and the District of Columbia announced that they had reached an $18.5 million settlement with Target regarding the states’ investigation of the company’s 2013 data breach. This represents the largest multi-state data breach settlement achieved to date.

On May 2, 2017, the United States Court of Appeals for the Second Circuit issued a summary order affirming dismissal of a putative data breach class action against Michaels Stores, Inc. (“Michaels”). The plaintiff’s injury theories were as follows: (1) the plaintiff’s credit card information was stolen and twice used to attempt fraudulent purchases; (2) the risk of future identity fraud and (3) lost time and money resolving the attempted fraudulent charges and monitoring credit. The plaintiff, however, quickly cancelled her card after learning of the unauthorized charges and did not allege that she was held responsible for any of those charges.

On April 6, 2016, U.S. District Judge R. Gary Klausner approved a settlement in Corona v. Sony Pictures Entertainment, Inc., No. 14-CV-09600 (RGK). As we previously reported, the litigation centered on a data breach involving the stolen personal information of at least 15,000 former and current employees. After a partial success on its motion to dismiss, Sony still faced potential liability for negligence based on its three-week delay in notifying its employees of the data breach, as well as statutory claims under the California Confidentiality of Medical Information Act and the Unfair Competition Law.

A federal judge of the U.S. District Court for the Northern District of Illinois denied Neiman Marcus’ motion to dismiss in Remijas et al. v. Neiman Marcus Group, LLC, 1:14-cv-01735.  As we previously reported, the Seventh Circuit reversed Judge James B. Zagel’s earlier decision dismissing the class action complaint based on Article III standing. At that time the Seventh Circuit declined to analyze dismissal under Federal Rule of Civil Procedure 12(b)(6) due to, among other reasons, the district court’s focus on standing.

On November 17, 2015, two plaintiffs filed a putative class action alleging that Georgia’s Secretary of State, Brian Kemp, improperly disclosed the Social Security numbers, driver’s license numbers and birth dates of more than 6.1 million Georgia voters. The lawsuit alleges that the Secretary violated Georgia’s Personal Identity Protection Act by disclosing the voters’ personally identifiable information, failing to provide voters notice of the breach and failing to notify consumer reporting agencies.

On October 23, 2015, the United States District Court for the District of Minnesota, in large part, upheld Target’s assertion of the attorney-client privilege and work-product protections for information associated with a privileged, internal investigation of Target’s 2013 data breach.

The United States District Court for the Northern District of California recently dismissed―without prejudice―a former Uber driver’s class action complaint. The driver, Sasha Antman, was one of roughly 50,000 drivers whose personal information was exposed during a May 2014 data breach. Uber contended the accessed files contained only the affected individuals’ names and drivers’ license numbers.

On September 17, 2015, the Seventh Circuit rejected Neiman Marcus’ petition for a rehearing en banc of Remijas v. Neiman Marcus Group, LLC, No. 14-3122. In Remijas, a Seventh Circuit panel found that members of a putative class alleged sufficient facts to establish standing to sue Neiman Marcus following a 2013 data breach that resulted in hackers gaining access to customers’ credit and debit card information. No judge in regular active service requested a vote on the rehearing petition. Additionally, all members of the original panel voted to deny rehearing. As we previously reported, and according to The Practitioner's Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit, “it is more likely to have a petition for writ of certiorari granted by the Supreme Court than to have a request for en banc consideration granted” in the Seventh Circuit.

On September 15, 2015, Judge Magnuson of the U.S. District Court for the District of Minnesota certified a Federal Rule of Civil Procedure 23(b)(3) class of financial services institutions claiming damages from Target Corporation’s 2013 data breach. The class consists of “all entities in the United States and its Territories that issued payment cards compromised in the payment card data breach that was publicly disclosed by Target on December 19, 2013.”

On August 3, 2015, Neiman Marcus requested en banc review of the Seventh Circuit’s recent decision in Remijas v. Neiman Marcus Group, LLC, No. 14-3122. As we previously reported, the Seventh Circuit found that members of a putative class alleged sufficient facts to establish standing to sue Neiman Marcus following a 2013 data breach. During that breach, hackers gained access to customers’ credit and debit card information.

On July 20, 2015, the United States Court of Appeals for the Seventh Circuit reversed a previous decision that dismissed a putative data breach class action against Neiman Marcus for lack of Article III standing. Remijas et al. v. Neiman Marcus Group, LLC, No. 14-3122.

The U.S. District Court for the Central District of California recently granted, only in part, a motion to dismiss a data breach class action against Sony Pictures Entertainment, Inc. (“Sony”) in Corona v. Sony Pictures Entertainment, Inc., No. 14-CV-09600 (RGK) (C.D. Cal. June 15, 2015). The case therefore will proceed with some of the claims intact.