When most people think of data breach lawsuits, they think of large class action cases and settlements like Remijas v. Neiman Marcus and Target.
But the vast majority of courts are denying class certification in cyber security cases.
Within nearly a week of each other, two federal courts in New York and Minnesota have dismissed potentially significant class action data breach cases in December 2015 and January 2016. Given the similar reasoning, the two cases provide legal guidance on how to dismantle data breach claims at the motion-to-dismiss stage.
My full article “4 Lessons from Dismissal in Michaels and SuperVALU Cases” is at McDonald Hopkins’ Business Advocate, here.
As a supplement to that article:
The December 28, 2015 Memorandum and Order in Whalen v. Michael Store, Inc. is here.
In the somewhat related case of Moyer v. Michaels Store, Inc., there is this October 14, 2014 Memorandum Order and Opinion (here) which denied Whalen’s attempt, as a putative class member, to re-open that dismissed case.
The January 7, 2016 Memorandum and Order in In Re SuperVALU, Inc. Customer Data Security Breach case is here.
In pulling up links for this post, I came across a post covering these two cases on Professor Eric Goldman’s Technology & Law Marketing Blog (“TLMB”). That author, Venkat Balasubramani, comes up with some different conclusions and gives some nice citations/comparisons.
Other cases worth considering (be wary of relying on pre-Clapper opinions):
In Re Zappos.com, Inc. Customer Data Security Breach Litigation (D-NV June 1, 2015). Bloomberg commentary.
U.S. Hotel and Resort Management, Inc. v. Onity, Inc. (D. Minn, July 30, 2014). TLMB commentary.
Clapper v. Amnesty International USA et al. (SCOTUS, Feb. 23, 2013).